Image from Kapungo on Flickr.

Councilmember Mary Cheh’s investigation into the DC government’s FOIA practices turned up countless examples where the Fenty administration seems to fight FOIA requests just for the sake of keeping information away from people.

I’ve been caught in my own “Kafkaesque” FOIA experience after trying to request information about bus stop placement on Sherman Avenue. DDOT FOIA officer Diana Jordan has twice violated the legally mandated time limits, denied a request on a technicality, and has now asked for additional time to complete an extremely trivial request for a single email where she surely knows exactly what I want and could deliver it in thirty seconds.

Most bizarrely of all, the purpose of this investigation wasn’t ever to criticize DDOT, but to investigate a specific decision, possibly worthy of criticism, from WMATA.

At a meeting of the Pedestrian Advisory Council a few months ago, DDOT’s pedestrian coordinator, George Branyan, noted that DDOT and WMATA had had some disagreements over placement of bus stops on Sherman. DDOT wanted to move them to the far side of intersections, which is generally a good practice to limit delays at signals and waiting to merge into traffic.

WMATA, however, opposed the change, for what sounded like strange reasons, and someone had created a report recommending leaving the stops where they were. I wanted to know more and figure out whether they were right or wrong.

I asked Mr. Branyan if he could forward that to me. Since he and DDOT hadn’t agreed with the conclusions, I assumed it wouldn’t be such a problem. He asked superiors, who suggested I get it via FOIA, so I made the request on May 21st, asking for “the report which WMATA provided to DDOT concerning bus stop placement on Sherman Avenue as part of the recent design of the Sherman Avenue streetscape reconstruction.”

I got an out of office reply from Diana Jordan, DDOT’s FOIA officer, saying she was out of the office on May 20th. Since it wasn’t May 20th any more, I assumed she had forgotten to update the message, and in any event would get the request when she next checked email.

DC law gives the agency 15 business days to respond, including the day they receive the message. That would mean they had to respond by June 10th. On June 9th, I emailed Ms. Jordan to inquire about the request, and she informed me she hadn’t received it, but would process it “as of today.” I wouldn’t have interpreted “the date the request is actually received by the FOIA Officer” to exclude any time the officer wasn’t aware of the request due to incompetence or negligence on her part, but perhaps Attorney General Peter Nickles would take that position.

On June 21st, Ms. Jordan sent me a form denial saying there were no records matching my request. In my original request, I had told her George Branyan probably had the documents, so I assume she spoke with him, and he would have known exactly what I was looking for.

But apparently my request had not been worded exactly right, giving her an opportunity to deny the request by narrowly construing the definition of the term “report.” I found out that DDOT didn’t have the actual report by WMATA on the issue, but that Mr. Branyan had discussed their conclusions and his objections in an email on August 28, 2009.

I therefore submitted a new FOIA request on June 24th for “any email messages sent by George Branyan on August 28, 2009 concerning the Sherman Avenue, NW streetscape project or concerning bus stops on Sherman Avenue, NW.” And I asked Ms. Jordan to confirm she received it just to make sure she couldn’t conveniently neglect to see it this time. She did.

15 working days from June 24th inclusive is July 15th, but I didn’t hear back from Ms. Jordan until July 21st, at which time she informed me that “DDOT is extending the time period in which DDOT will provide you with the public records you have requested. This extension is based on the need to search for, collect and examine the amount of records in order to respond to your FOIA request. [D.C. Official Code] § 2-532(d).”

She now promises to respond by August 2nd. However, 10 more business days from June 24th is not August 2nd but July 29th. Math must not be a strong point at the DDOT legal department. Neither, apparently, is understanding of the law. According to the relevant section of the DC Code:

(d) In unusual circumstances, the time limit prescribed in subsection (c) of this section may be extended by written notice to the person making such request setting forth the reasons for extension and expected date for determination. Such extension shall not exceed 10 days (except Saturdays, Sundays, and legal public holidays). For purposes of this subsection, and only to the extent necessary for processing of the particular request, “unusual circumstances” are limited to:

(1) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or

(2) The need for consultation, which shall be conducted with all practicable speed, with another public body having a substantial interest in the determination of the request or among 2 or more components of a public body having substantial subject-matter interest therein.

I only asked for all emails from a single person on a single day about a specified subject. I only asked for “all” emails because it was clear Ms. Jordan would not give me what I wanted if she could avoid it. Asking one person to look through their email from a single day for messages on a specific subject hardly seems to be “unusual circumstances,” and the quantity of records involved hardly “voluminous” compared to most FOIA requests.

It’s interesting that Ms. Jordan’s explanation of the “reasons” for the extension quoted the section of the code but conveniently removed the words that made it not apply to my request. She doesn’t even seem to be claiming that my very narrowly tailored request involves a voluminous amount of records; instead, she’s simply rephrasing the law to allow them to get the extension for any quantity of records whatsoever.

I still don’t know if I will get an answer by Thursday, the deadline from the actual law, or Monday, the deadline from Ms. Jordan’s imaginary view of the law. I don’t know if that answer will even contain the information I asked for, or if she’ll find some legal excuse to deny the request again.

AG Peter Nickles has argued that the government can’t handle all the FOIA request they are receiving and needs extra time. It seems that if they simply complied with the requests instead of spending so much time trying to resist them all, they could probably get through them faster. Ms. Jordan knows exactly what I want, and it’s not even going to embarrass DDOT (at least, I don’t think so).

She could have simply forwarded me the email in the first place, or at any time since, and been done with it. Instead, she’s wasted a lot more of her time. Meanwhile, she’s transformed my desire to write an article supporting DDOT in their disagreement with WMATA (assuming the email matched what I’d heard from Mr. Branyan) into an article criticizing DDOT and Mayor Fenty.

These particular bus stops weren’t that big of a deal in any event, but the Fenty Administration’s dogged resistance to following the FOIA laws is a much bigger deal, and now they’ve managed to get me as frustrated about this as the other witnesses at Mary Cheh’s hearing. This can’t be a good outcome for the Mayor.