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District of Columbia

Open Government Guide

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Author

Stephen J. Fuzesi, Esq.

A. Joshua Podoll, Esq.

WILLIAMS & CONNOLLY LLP
725 12th Street, N.W.
Washington, D.C. 20005
(202) 434-5000

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Foreword

The first provision of the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. ("D.C. Act"), emphasizes the public policy of open government that underlies the law. The D.C. Act provides that the

public policy of the District of Columbia is that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. To that end, provisions of this subchapter shall be construed with the view toward expansion of public access and the minimization of costs and time delays to persons requesting information.

D.C. Code Ann. § 2-531.

This provision was included in the D.C. Act "to make clear that any actions should serve the purpose of access and that any restriction on that access should be construed narrowly." Comm. on the Judiciary and Criminal Law, Report on Bill No. 1-119, the "D.C. Freedom of Information Act of 1975," at 6 (Sept. 1, 1976) ("Comm. on Judiciary Report"). This policy of openness requires courts to construe all exemptions narrowly and to resolve all doubts in favor of disclosure. Newspapers Inc. v. Metro. Police Dep't, 546 A.2d 990, 993 (D.C. 1988); Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987).

The D.C. Act has been the subject of few reported cases. See Vining v. Council of District of Columbia, 140 A.3d 439 (D.C. 2016); Fraternal Order of Police v. District of Columbia, 139 A.3d 853 (D.C. 2016); Fraternal Order of Police v. D.C., No. 13-CV-1333, 2015 WL 5474117, at *1 (D.C. Sept. 17, 2015); Frankel v. D.C. Office for Planning & Econ. Dev., 110 A.3d 553, 557 (D.C. 2015), as amended (Mar. 5, 2015); Fraternal Order of Police v. D.C., 79 A.3d 347, 360 (D.C. 2013); Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010); Doe v. D.C. Metro. Police Dep't, 948 A.2d 1210 (D.C. 2008); Wemhoff v. D.C., 887 A.2d 1004, 1009 (D.C. 2005); Donahue v. Thomas, 618 A.2d 601 (D.C. 1992); McReady v. Dep't of Consumer & Regulatory Affairs, 618 A.2d 609 (D.C. 1992); Hines v. Board of Parole, 567 A.2d 909 (D.C. 1989); Washington Post v. Minority Bus. Opportunity Comm'n, 560 A.2d 517 (D.C. 1989); Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989); Newspapers Inc. v. Metro. Police Dep't, 546 A.2d 990 (D.C. 1988); Barry v. Washington Post Co., 529 A.2d 319 (D.C. 1987); Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 1980). The D.C. Act, however, is patterned on and construed in accordance with the federal Freedom of Information Act, 5 U.S.C.A. § 552. See Barry v. Washington Post Co., 529 A.2d at 321. Thus, when litigating a question involving the D.C. Act, reliance upon applicable federal law is appropriate.

The Supreme Court recently reaffirmed that there is no constitutional right of access to government records.  McBurney v. Young, 133 S. Ct. 1709, 1712 (2013) ("The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws.").  This position is deeply rooted in the Court's precedent.  See, e.g., Houchins v. KQED, 438 U.S. 1 (1978) ("There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy.").  The Court has also asserted that there is no common-law right to access such records.  McBurney, 133 S. Ct. at 1718 ("No such right was recognized at common law…most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted access to them.").

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

Any "person" has a right to inspect or copy any public record not exempted from disclosure. § 2-532(a).  The term “person” “includes individuals, partnerships, corporations, associations, and public or private organizations of any character other than the Mayor, the Council, or an agency.”  § 2-502(9); see § 2-539(a)(8) (providing that definition of “person” from § 2-502 applies).

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2. Purpose of request

The statute does not require a requester to state or explain the purpose of the request. The purpose of the request may be considered, however, in the context of certain exemptions. When privacy rights are pitted against the requester's interest in disclosure of information, a request for material may be more likely to fail if the requester is acting for "private" purposes. For example, the Mayor's office has ruled that when an individual seeks personnel files of police officers to use in a civil action against the officers, disclosure serves no public purpose that would outweigh the officers' privacy rights in the files. Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (upholding the police department's invocation of the § 2-534(a)(2) privacy exemption); accord Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995); see also Fraternal Order of Police, Metro. Police Labor Comm. v. D.C., 124 A.3d 69, 77 (D.C. 2015) (“The only relevant public interest in disclosure to be weighed in this [2-534(a)(2)] balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government.” (internal quotation marks omitted)).

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3. Use of records

The fact that a person seeks information for a commercial use does not bar disclosure. See, e.g., Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 1980) (fact that individual sought information to sell as mailing list of elderly citizens did not prohibit disclosure). However, § 2-534(a)(1), exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government, assumes that the D.C. Act should not be used as a "private discovery tool." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989).

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4. Can an individual request records on behalf of a third party or organization?

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B. Whose records are and are not subject to the Act

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1. Executive branch

The D.C. Act requires disclosure of records of any "public body." D.C. Code Ann. § 2-532(a). The D.C. Administrative Procedure Act, from which many definitions in the D.C. FOIA are taken, see D.C. Code Ann. § 2-539, defines a "public body" as including the Mayor, an agency or the Council of the District of Columbia. Id. at § 2-502(18A). "Agency" includes both subordinate and independent agencies. Id. at § 2-502(3). "Subordinate agency" is defined as "any officer, employee, office, department, division, board, commission or other agency of the government of the District, other than an independent agency or the Mayor or the Council, required by law or by the Mayor or the Council to administer any law or any rule adopted under the authority of law." Id. at § 2-502(4).

"Independent agency" is defined as "any agency of the government of the District of Columbia to which the Mayor and the Council are not authorized by law, other than this subchapter, to establish administrative procedures but does not include the several courts of the District and the Tax Division of the Superior Court." Id. at § 2-502(5). Intergovernmental agencies would probably not be considered "agencies" for the purposes of the D.C. Act. See Latimer v. Joint Comm. on Landmarks, 345 A.2d 484, 486-87 (D.C. 1975) (construing § 2-502 definitions); KiSKA Constr. Corp.-U.S.A. v. Washington Metro. Area Transit Auth., 167 F.3d 608, 611-12 (D.C. 1999) (holding that WMATA is not an agency within the meaning of the D.C. FOIA).

The Office of the Secretary (which has been delegated the authority vested in the Mayor to render final decisions on appeals under the D.C. FOIA) has issued an opinion concluding that an agency under the administrative control of a court-ordered general receiver is not an "agency" to which the FOIA requirements applied. See In re Appeal of Claire M. Riley, Matter No. 00-08806, 47 D.C. Reg. 6287 (July 24, 2000) (concluding that the Child and Family Services Division of the Department of Human Services was not an "agency" because it was under the exclusive administrative control of the court); In re Appeal of The Washington Post, Matter No. 00-105900, 47 D.C. Reg. 7229 (August 25, 2000) (same).

The D.C. Act applies to all "public records." D.C. Code Ann. § 2-532. The following records are specifically required to be disclosed under D.C. Code Ann. § 2-536:

  1. The names, salaries, title and dates of employment of all employees and officers of a public body;
  2. Administrative staff manuals and instructions to staff that affect a member of the public;
  3. Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
  4. Those statements of policy and interpretations of policy, acts and rules that have been adopted by a public body;
  5. Correspondence and materials referred to therein, by and with a public body, relating to any regulatory, supervisory or enforcement responsibilities of the public body, whereby the public body determines, or states an opinion upon, or is asked to determine or state an opinion upon, the rights of the District, the public or any private party;
  6. Information in or taken from any account, voucher or contract dealing with the receipt or expenditure of public or other funds by public bodies;
  7. Budget requests, submissions and reports available electronically that agencies, boards and commissions transmit to the Office of Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by the Office of the Chief Financial Officer, including baseline budget submissions and appeals, financial status reports and strategic plans and performance-based budget submissions;
  8. The minutes of all proceedings of all public bodies;
  9. All names and mailing addresses of absentee real property owners and their agents. "Absentee real property owners" means owners of real property located in the District that do not reside at the real property.
  10. All pending applications for building permits and authorized building permits, including the permit file;
  11. Copies of all records, regardless of form or format, that have been released to any person under the D.C. Act and which, because of the nature of their subject matter, the public body determines have become or are likely to become the subject of subsequent requests for substantially the same records.
  12. A general index of the foregoing records, unless the materials are promptly published and copies offered for sale.

For records in the categories listed above created on or after November 1, 2001, each public body shall make records available on the Internet or, if a Web site has not been established by the public body, by other electronic means. See § 2-536(b).

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2. Legislative bodies

The Act applies to any "public body," including the Council of the District of Columbia. See D.C. Code Ann. § 2-502(18A) (defining "public body" as including the Council); Vining v. Council of D.C., 140 A.3d 439, 449 (D.C. 2016) (holding that D.C. FOIA requires disclosure of D.C. Council records).

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3. Courts

The act is not applicable to courts in the District of Columbia. See D.C. Code § 2-502(5).

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4. Nongovernmental bodies

There appears to be no case law or statutory provision directly addressing this issue; a court may examine whether the documents at issue are "controlled" by a governmental body, and whether the body could reasonably expect to come within the D.C. FOIA's ambit. See Belth v. Dep't of Consumer & Regulatory Affairs, 115 Daily Washington Legal Rptr. 2281 (D.C. Super. Ct. 1987).  The statutory definition of "public body" limits its inclusion to the Mayor, agencies and the D.C. Council.

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5. Multi-state or regional bodies

The D.C. Circuit, applying D.C. Law, has held that the D.C. Act does not cover agencies created by interstate compact, such as the Washington Metropolitan Area Transit Authority. KiSKA Constr. Corp.-U.S.A., 167 F.3d at 611-12; see also Latimer, 345 A.2d at 486-87 (Joint Committee on Landmarks was not an agency of the District of Columbia).  Requests for WMATA records should be filed under WMATA's Public Access to Records Policy (PARP); more information can be found here: https://www.wmata.com/about/records/index.cfm# .  The PARP is interpreted and applied in the same manner as FOIA.  PARP § 1.0.

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6. Advisory boards and commissions, quasi-governmental entities

If the documents at issue are under the control of an agency by virtue of its relationship with an advisory board, a claimant could argue the documents are covered by the D.C. Act. See Belth, 115 Daily Washington Legal Rptr. at 2281.

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7. Others

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

The D.C. Act applies to all "public records." D.C. Code Ann. § 2-532. Public records include "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form characteristics prepared, owned or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18); id. at § 2-539 (adopting the definition of public record provided in § 2-502). Certain records are specifically required to be disclosed, see id. at § 2-536, and some are subject to discretionary statutory exemptions, see id. at § 2-534(a). Like the federal courts, at least one published opinion from a D.C. court has adopted a "control standard" instead of a "possession standard" to determine the definition of "agency records" when the records were not created by an agency. Belth, 115 Daily Washington Legal Rptr. at 2281 (holding that records created by the National Association of Insurance Commissioners and used by the Dep't of Consumer & Reg. Affairs were covered by the D.C. Act because the documents were in the agency's physical and legal control, and used by the agency to regulate insurers). The D.C. Act also provides that a public body must make available records produced or collected pursuant to a contract with a private contractor to perform a public function. § 2-532(a-3).

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2. What physical form of records are covered

Public records include "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form characteristics prepared, owned or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18); id. at § 2-539. Public records include information stored in an electronic format. Id. at § 2-502(18).

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3. Are certain records available for inspection but not copying?

The D.C. Act states that any person "has a right to inspect, and at his or her discretion, to copy any public record of a public body." D.C. Code Ann. § 2-532(a) (emphasis added). A public body may set "reasonable rules" for time and place of access to documents through notice and comment proceedings. Id.

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4. Telephone call logs

Telephone call logs are not specifically addressed in the statute, but they should fall within the definition of "public record," which includes "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form characteristics prepared, owned, or used in the possession of, or retained by a public body."  D.C. Code Ann. § 2-502(18).

D.C. courts have, however, found that records containing telephone numbers can fall within the Act's personal privacy exemption.  The D.C. Act exempts from disclosure any "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."  Id. at § 2-534(a)(2).  In determining whether records containing telephone numbers can be exempted under this subsection, D.C. courts balance the public interest in disclosure against personal privacy interests.  See, e.g., Padou v. District of Columbia, 29 A.3d 973, 979 (D.C. 2011) (exempting telephone numbers from a FOIA request after "balanc[ing] the public interest against the privacy interest and decid[ing] that the privacy interest was more important.").

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5. Electronic records (e.g., databases, metadata)

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a. Can the requester choose a format for receiving records?

A public body making electronic records available must provide the records in any form or format requested, provided that the person requesting the records pays the costs of reproducing the record in that form or format. D.C. Code Ann. § 2-532(a-1).

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b. Can the requester obtain a customized search of computer databases to fit particular needs

A public body must make "reasonable efforts" to search for records in electronic form or format, except when the efforts would significantly interfere with the operation of the public body's automated information system. D.C. Code Ann. § 2-532(a-2). "Reasonable efforts" means that a public body shall not be required to expend more than 8 hours of personnel time to reprogram or reformat records. Id. at § 2-532(f)(1).

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c. Does the existence of information in electronic format affect its openness?

Information stored in an electronic format is expressly included in the definition of "public record" under the D.C. Act. D.C. Code Ann. § 2-502(18).

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d. Online dissemination

Not specifically addressed.

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6. Email

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7. Text messages and other electronic messages

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8. Social media posts

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9. Computer software

Not specifically addressed.

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10. Can a requester ask for the creation or compilation of a new record?

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The D.C. Act is to be construed to minimize the costs associated with obtaining public information. D.C. Code Ann. § 2-531. Search, review and copying fees cannot exceed the actual costs of searching, reviewing and/or copying records. D.C. Code Ann. § 2-532(b). The fee schedules that may be adopted by a public body vary depending on the purpose of the request and the identity of the requester. When records are not sought for commercial use and the request is made by a representative of the news media or by an educational or non-commercial scientific institution for scholarly or scientific research, fees are limited to reasonable standard charges for document duplication. When records are requested for commercial use, fees are limited to reasonable standard charges for searching, duplication and review. For all other requests, fees are limited to reasonable standard charges for document search and duplication. § 2-532(b).
A public body must provide a requested record in any form or format requested by the person, provided that the person pays the costs of reproducing the record in that form or format. D.C. Code Ann. § 2-532(a-1).

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2. Particular fee specifications or provisions

Search, review and copying fees cannot exceed the actual costs of searching, reviewing and/or copying records. D.C. Code Ann. § 2-532(b). The fee schedules that may be adopted by a public body vary depending on the purpose of the request and the identity of the requester. When records are not sought for commercial use and the request is made by a representative of the news media or by an educational or non-commercial scientific institution for scholarly or scientific research, fees are limited to reasonable standard charges for document duplication. When records are requested for commercial use, fees are limited to reasonable standard charges for searching, duplication and review. For all other types of requests, fees are limited to reasonable standard charges for document search and duplication. § 2-532(b).

Reasonable standard charges for duplication may be charged. § 2-532(b).

Review costs shall include only the direct costs incurred during the initial examination of a document to determine whether it must be disclosed or withheld in part. Review costs may not include costs incurred to determine issues of law or policy related to the request. § 2-532(b).

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3. Provisions for fee waivers

All search and copying fees can be waived or reduced, if furnishing the information requested can be considered as primarily benefiting the general public. D.C. Code Ann. § 2-532(b). As a matter of practice, a member of the media should state in a request that furnishing the requested information can be considered as primarily benefiting the general public and specifically request a waiver of fees as being in the public interest. If a waiver of fees is requested, however, it should also be stated that the requester is prepared to pay the reasonable fees incurred, at least up to some stated amount, should the waiver be denied.

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4. Requirements or prohibitions regarding advance payment

No agency public body may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency or public body has determined that the fee will exceed $250. D.C. Code. Ann. § 2-532(b-3).

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5. Have agencies imposed prohibitive fees to discourage requesters?

Not specifically addressed.

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6. Fees for electronic records

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E. Who enforces the Act?

All employees of the District government are responsible for compliance with the provisions of the D.C. Act. D.C. Code Ann. § 2-537(e). Each public body also must designate a Freedom of Information Officer who is to receive a minimum of 8 hours of training regarding implementation and compliance with the D.C. Act. § 2-538(d). Each year, the Mayor requests from each public body and submits to the D.C. Council a report covering the public record disclosure activities of each public body during the preceding fiscal year. § 2-538(a).

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1. Attorney General's role

The Corporation Counsel must submit an annual report listing the number of cases which arose under the D.C. Act in the previous fiscal year, the exemption involved, disposition, and costs assessed in each case. D.C. Code Ann. § 2-538(c).

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2. Availability of an ombudsman

The D.C. Act contains no provision regarding the availability of an ombudsman.

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3. Commission or agency enforcement

The D.C. Act contemplates appeals of adverse decisions by individual petitioners, not commission or agency enforcement. D.C. Code Ann. § 2-537(a).

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F. Are there sanctions for noncompliance?

Any person who arbitrarily or capriciously violates the D.C. Act can be found guilty of a misdemeanor and punished by a fine not to exceed $100. D.C. Code Ann. § 2-537(d).

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G. Record-holder obligations

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1. Search obligations

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2. Proactive disclosure requirements

The D.C. Act provides that the following information must be made public, regardless of whether or not it is requested:

1) The names, salaries, title, and dates of employment of all employees and officers of a public body

2) Administrative staff manuals and instructions to staff that affect a member of the public

3) Final opinions, including concurring and dissenting opinions made in the adjudication of cases

4) Those statements of policy and interpretations of policy, acts, and rules which have been adopted by a public body

5) correspondence and materials of a public body through which the public body determines the rights of the District, the public, or any private party

6) Information in or taken from any account dealing with expenditures of public or other funds by public bodies

7) The minutes of all proceedings of all public bodies

8) All names and mailing addresses of absentee real property owners and their agents

9) Copies of all records, regardless of form or format, which have been released to any person under the D.C. Act

10) A general index of the records referred to in the D.C. Act

D.C. Code Ann. § 2-536 (Information which must be made public).

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3. Records retention requirements

The D.C. Act does not impose any laws or regulations requiring retention for certain periods.

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4. Provisions for broad, vague, or burdensome requests

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A. Exemptions in the open records statute

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1. Character of exemptions

Statutory exemptions are specific and are to be strictly construed; courts do not have the power to create additional exemptions. See D.C. Code Ann. § 2-537(b); Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987). A government agency that wishes to withhold information has the burden of showing an exemption to the D.C. Act applies. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 521 (D.C. 1989).

The language of the D.C. Act provides that the listed categories of information "may be exempt." D.C. Code Ann. § 2-534(a). The exemptions, therefore, should be viewed as discretionary. See also 1 D.C. Mun. Reg. ("DCMR") § 406.1 (no requested record may be withheld unless it both comes within a statutory exemption and there is a need in the public interest to withhold it); 1 DCMR § 400.4 (records exempt from mandatory disclosure shall be made available as a matter of discretion when disclosure is not prohibited by law or is not against the public interest). Information gathered under the Vital Records Act, however, is excluded from the D.C. Act altogether, and can only be disclosed pursuant to the terms of the Vital Records Act. § 2-534(d). The D.C. Act exemptions do not authorize nondisclosure of information when disclosure is authorized or mandated by other law. D.C. Code Ann. § 2-534(c). See Dunhill v. Director, 416 A.2d 244, 247-48 (D.C. 1980) (holding that even if information sought was exempt under privacy exemption, nondisclosure was improper because the information was available under another law and accompanying regulations); Cf. Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. D.C., 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release).

The exemptions under the D.C. Act are patterned on and have been construed in accordance with federal law. See Barry v. Washington Post Co., 529 A.2d at 321. Three exemptions that appear in the federal act do not appear in the D.C. Act: (1) internal personnel rules and practices of an agency; (2) reports of and information gained during examinations of financial institutions; and (3) geological and geographical data regarding wells. 5 U.S.C.A. § § 552(b)(2), 552(b)(8)-(9). Exemptions appearing in the D.C. Act that do not appear in the federal act are discussed in other sections.

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2. Discussion of each exemption

a. Trade Secrets and Commercial or Financial Information (D.C. Code Ann. § 2-534(a)(1)) — Like the federal statute, the D.C. Act contains a provision exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government. The D.C. Act, however, is more restrictive in what material may be withheld by an agency. See Food and Allies Services Traders, AFL-CIO v. Barry, No. 3809-88, slip. op. at 5-7 (D.C. Super. Ct. Jan. 9, 1987). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 522.

In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, an association that does not itself engage in business, and therefore cannot show harm to its competitive position, cannot claim that documents it prepared for a D.C. government agency fall within the trade secrets exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 (ordering disclosure of insurance reports prepared by the National Association of Insurance Commissioners).

Accordingly, opinions from the Mayor's office pursuant to FOIA appeals have held that:

A party asserting that its competitive position would be harmed by the disclosure of commercial information must show a specific likelihood of injury; a generalized invocation of the language of the statute is not enough to justify nondisclosure. Shaw Coalition Redevelopment Corp. v. Office of the Assistant City Administrator for Economic Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994).

Certain financial terms and conditions, including rental fee amounts, rental deposit amounts, electrical fee amounts, and an estimate of total kilowatt consumption, between the Washington Convention Center and promoters do not fall within the trade secret exemption because fee amounts are "unique for each particular live event" and do not affect the competitive bargaining power of other promoters. In re Appeal of John R. Risher, Esq., for Disclosure of Certain Rental Agreements and Related Documents, FOIA App. No. 90-1 (Office of the Mayor, Aug. 1, 1991).

The D.C. Act's language was based on the Judiciary Committee's reading of the D.C. Circuit's opinion in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Comm. on Judiciary Report at 8. In National Parks, however, the D.C. Circuit held that information was "confidential" within the meaning of the federal FOIA's exemption 4 not only if its disclosure would harm a person's competitive position, but also if disclosure would impair the government's interest in obtaining information in the future. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 523. In addition, National Parks left open the question whether governmental interests other than obtaining future information would justify withholding information under exemption 4. See National Parks, 498 F.2d at 770 n.17. Although this question was answered in the affirmative in Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 830 F.2d 278, 282-87 (D.C. Cir. 1987), that decision should not affect the interpretation of the D.C. Act.

b. Privacy (D.C. Code Ann. § 2-534(a)(2)) — The D.C. Act exempts information of a personal nature, when disclosure would constitute a clearly unwarranted invasion of privacy. For example, the Act exempts the release of presentence reports, academic records, mental health assessments and other records pertaining to prison inmates' applications for minimum sentence reductions. See Hines v. Board of Parole, 567 A.2d 909, 913 (D.C. 1989). And the Act exempts personal information of public employees, unless the requestor shows that "the withheld information will shed light on an agency's performance of its statutory duties or otherwise let citizens know what the government is up to." Fraternal Order of Police v. D.C., No. 13-CV-1333, 2015 WL 5474117, at *5 (D.C. Sept. 17, 2015) (internal quotation marks omitted). D.C. courts have held that when this privacy exemption does not apply and the D.C. statute authorizes disclosure of information, litigants cannot then base an invasion of privacy claim upon the government's dissemination of information. See Wolf v. Regardie, 553 A.2d 1213, 1218-19 & n.10 (D.C. 1989).

The language of the D.C. Act's privacy exemption is broader than that of federal law. Unlike the language of the federal statute, which limits its comparable exemption to personnel, medical and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, see 5 U.S.C.A. § 552(b)(6), the D.C. Act exempts all information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. However, when information collected for law enforcement purposes is at issue, this difference between the privacy exceptions of the two statutes diminishes. The federal statute exempts disclosure of investigatory records compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. See 5 U.S.C.A. § 552(b)(7)(C). The Supreme Court has interpreted this privacy exemption covering information relating to law enforcement as more expansive than the federal statute's personnel, medical and similar files privacy exemption. See United States v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989) (exempting disclosure of FBI rap sheets).

The Mayor's office (and now the Office of the Secretary) has consistently relied on the Reporters Committee rule in performing the requisite balancing test under this exemption: the individual's privacy interest in the material at issue must be balanced against the public interest in disclosing it, and this public interest must serve the "core purpose of shedding light on an agency's performance of its statutory duties." Foster v. Univ. of the District of Columbia, FOIA App. No. 92-8 (Office of the Mayor, Oct. 30, 1995) (refusing to release the personnel records and curriculum vitae of a U.D.C. employee because disclosure would impinge upon the employee's privacy rights and serve no "core" public purpose); see also In re Appeal of The Washington Post Co., Matter No. 01-170008, 48 D.C. Reg. 8629 (Office of the Secretary, Sept. 7, 2001) (holding that the privacy interests of students and teachers under investigation for the consumption of alcohol substantially outweighs the public interest in their identifying information); Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (holding that no "core" public purpose is served when individual seeks police officers' personnel records for use in a civil suit against officers); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (refusing to disclose address of district resident who has not otherwise made her address and telephone number public, where plaintiff wanted address for use in a civil lawsuit); In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications, and work experiences of successful job applicants, but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references, about successful applicants or any information regarding unsuccessful job applicants).  The D.C. Court of Appeals applies the same test.  Vining v. Council of D.C., 140 A.3d 439, 449 (D.C. 2016)

In accordance with other jurisprudence pertaining to corporations, the Mayor's office has ruled that corporations have no privacy rights under exemption (a)(2). Washington Post Co. v. Metro. Police Dep't, FOIA App. No. 92-5 (Sept. 24, 1993) (refusing to disclose on privacy grounds names and addresses of registered gun owners, but agreeing to release information regarding licensed gun dealers because corporations have no privacy interests).

D.C. Code Section 2-536, specifically makes certain information public, but does so "without limiting the meaning of other sections of this subchapter." Despite what appear to be specific and mandatory disclosure requirements under § 2-536, the Mayor's office has construed this limiting language to mean that if the privacy exemption is implicated by a record that falls within § 2-536, the record can be withheld. Thus, in the view of the Mayor's office, the names of members of the police department, although required to be made public under § 2-536, do not have to be released because "by virtue of the nature of their work, MPD personnel have substantial privacy interests that militate against public revelation of their names." Mike R. Atraqchi v. Metro. Police Dep't, FOIA App. No. 94-17 (Office of the Mayor, July 28, 1994).

c. Investigatory and Law Enforcement Records (D.C. Code Ann. § 2-534(a)(3)) — Like the federal law, the D.C. Act exempts certain investigatory records compiled for law enforcement purposes (including the records of Council investigations). The exemption allows nondisclosure when disclosure would interfere with enforcement proceedings or Council investigations, deprive a person of a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigation techniques or endanger the lives of law enforcement officers. § 2-534(a)(3). The exemption applies only to investigatory records that are compiled in the course of specific investigations and that focus on specific individuals and acts. See Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings."); Barry v. Washington Post Co., 529 A.2d at 321-22. Such records are exempt, however, only if their release would also result in the interference with enforcement proceedings or cause one of the other results described in § 2-534(a)(3). See In re Appeal of Ernest Middleton, Matter No. 01-171746, 48 D.C. Reg. 9022 (Office of the Secretary, Sept. 19, 2001); In re Appeal of Mark W. Howes, Esq., Matter No. 00-10587, 48 D.C. Reg. 7827 (Office of the Secretary, Aug. 13, 2001). The D.C. Act "seeks to strike a balance for maximum disclosure even of law enforcement information, but not in cases where the information would endanger people, interfere with due process or severely hamper law enforcement effort." Comm. on Judiciary Report, at 7. The Mayor's office has ruled that investigatory records in a 6-year-old murder case are exempt from disclosure if charges and criminal litigation are still possibilities. Glenn A. Stanko, Esq. v. Metro. Police Dep't, FOIA App. No. 92-24 (Feb. 24, 1995).

The Mayor's office appears to be highly deferential to departments or agencies that invoke this exemption. The Office has held that: the privacy interests of police and the crime victim's family militate against releasing a videotaped murder confession that was never admitted into evidence against the accused when the tape was sought by a news reporter, In re Appeal of Molly Pauker, Esq., (unnumbered FOIA appeal) (Office of the Mayor, Nov. 3, 1989). The Office has also held that disclosing a police officer's records regarding an investigation into her alleged drug abuse, when no disciplinary charges were brought and absent allegations that the investigation was mishandled, would serve no public purpose, Pretext Services Inc. v. Metro. Police Dep't, FOIA App. No. 92-10 (Office of the Mayor, March 8, 1995).

It should be noted that another D.C. statute, D.C. Code Ann. § 5-113.06, provides that all complaints and other specific police records shall be open for inspection. See also § 2-534(c) ("This section shall not operate to permit nondisclosure of information of which disclosure is authorized or mandated by other law."). Therefore, the names of some 70 police officers and information about criminal charges filed against them were required to be disclosed under § 5-113.06 [formerly D.C. Code § 4-135]. Washington Post v. Metro. Police Dep't, FOIA App. No. 93-15 (Office of the Mayor, March 11, 1994).

d. Interagency Memos and Letters (D.C. Code Ann. § 2-534(a)(4)) — This exemption is virtually identical to the exemption in the federal statute, exempting inter-agency and intra-agency memorandums or letters (including memorandums or letters generated or received by the staff or members of the Council), which would not be available by law to a party in litigation with a public body. Compare § 2-534(a)(4) with 5 U.S.C.A. § 552(b)(5). As a matter of policy, reports and analyses prepared by an organization outside the government, even if they are used in an agency's deliberative process, do not fall within the exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 ("To hold otherwise would be to rule that the independently initiated, prepared and funded reports of a private organization . . . which that organization desires to withhold from public scrutiny and discussion but to have used by a governmental agency as the basis for important public policy decisions, would be immunized from disclosure . . . .").

The D.C. Act expressly provides that the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege are incorporated into the exemption in § 2-534(a)(4). D.C. Code Ann. § 2-534(e). Prior to this language being added to the statute, the Mayor's office and the Office of the Secretary had already relied on the common law deliberative process privilege to find documents are exempt from disclosure under § 2-534(a)(4) because they would not be available to a party in litigation with the agency. Shaw Coalition Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994) (withholding documents related to an executive decision about real estate development); Alonzo L. Williams v. Office of Superintendent, FOIA App. No. 95-10 (Office of the Mayor, Aug. 11, 1995) (withholding memoranda from a hearing examiner whose recommendation was rejected by the Superintendent of Schools, the final arbiter of the decision at issue); see also In re Appeal of the ACLU (National Prison Project), Matter No. 00-118630, 48 D.C. Reg. 2407 (Office of the Secretary, Mar. 6, 2001) (remanding case to D.C. Department of Corrections to determine whether requested memorandum is of a "predecisional" and "deliberative" character).

e. Test Questions and Answers (D.C. Code Ann. § 2-534(a)(5)) — This exemption does not appear in the federal act. It exempts test questions and answers to be used in future license, employment or academic examinations. It does not exempt previously administered exams or answers thereto.

However, if information regarding an exam — for example, a job applicants' test answers and general scoring protocols — would "compromise the legitimacy and fairness of an examination process by revealing test answers to be used in future exams," such information will fall within this exemption. Francesca A. Clark v. Metro. Police Dep't, FOIA App. No. 94-43 (Office of the Mayor, Sept. 29, 1995).

f. Information Exempted by Other Statutes (D.C. Code Ann. § 2-534(a)(6)) — This exemption is identical to the federal exemption. Compare § 2-534(a)(6) with 5 U.S.C.A. § 552(b)(3). It requires that information be specifically exempted from disclosure by another statute. Such exemption will not be inferred. Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. D.C., 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release); Barry v. Washington Post Co., 529 A.2d at 322. The exemption does not apply to certain ordinances, or other laws that are not "statutes." Newspapers Inc., 546 A.2d at 997-1001; see also In re Appeal of Grayson & Assocs., P.C., Matter No. 00-00240, 47 D.C. Reg. 4585 (Office of the Secretary, May 16, 2000) (Section 42-231 of the D.C. Unclaimed Property Act qualifies as a nondisclosure statute under § 2-534(a)(6)); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (federal regulations are not statutes within the meaning of the Act); In re Appeal of Clifton Jackson for Release of Inheritance Tax Return Form FR-19, FOIA App. No. 90-7 (Office of the Mayor, May 19, 1991) (Inheritance and Estate Tax Revision Act, D.C. Code Ann. § 45-3719(a) & (c), is a statute within the meaning of the act, requiring nondisclosure of certain tax records).

g. Information Exempted By Federal Law Because Of National Defense Or Foreign Policy Concerns (D.C. Code Ann. § 2-534(a)(7)) — This exemption is virtually identical to the exemption in the federal act. Compare D.C. Code Ann. § 2-534(a)(7) with 5 U.S.C.A. § 552(b)(1)(A).

h. Information Gained in Civil Antitrust Actions (D.C. Code Ann. § 2-534(a)(8)) — This provision does not appear in the federal act. It exempts certain information gained by the D.C. Government during discovery or investigations carried out pursuant to local antitrust laws, D.C. Code Ann. § 28-4505.

i. Information Disclosed In Arson Investigations (D.C. Code Ann. § 2-534(a)(9)) — This exemption also does not appear in the federal act. It exempts information gained pursuant to local arson reporting laws, D.C. Code Ann. § 5-417.

j. Specific Response Plans and Vulnerability Assessments (D.C. Code Ann. § 2-534(a)(10)) — The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism.

k. Information Submitted to Business License Center (D.C. Code Ann. § 2-534(a)(11)) — Information submitted to the Business License Center within the Department of Consumer and Regulatory Affairs, such as applications for business licenses, are exempted by the D.C. Act. A person, however, may be provided with information submitted to the Business License Center for one registrant based upon the submission of either the name or address of the registrant; persons are limited to one such request per day. Federal Employer Identification numbers and Social Security numbers shall not be released except if requested by a law enforcement agency or directed by court order.

l. Information That Would Disclose the Identity of a Whistleblower (D.C. Code Ann. § 2-534(a)(12)) — Information, the disclosure of which would reveal the name of an employee providing information under the whistleblower protection provisions of the D.C. Code, § 1-615.51 et seq. and § 2-223.01 et seq., is exempt unless the name of the employee is already known to the public.

m. Vital Records (D.C. Code Ann. § 2-534(d)) — This exemption is unique to the D.C. Act. It provides that the provisions of the D.C. Act do not apply to the Vital Records Act of 1981, D.C. Code Ann. §  7-201. Unlike other exemptions, this exemption is not discretionary. Vital records include certificates or reports on birth, death, marriage, divorce, annulment and data related thereto. §  7-201(15). The Vital Records Act prohibits disclosure of those records except as provided by that chapter. §  7-219(a). Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right. The Vital Records Act contains criminal penalties for violations of its provisions. §  7-225.

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B. Other statutory exclusions

None.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Courts do not have the power to create additional exemptions. Barry v. Washington Post Co., 529 A.2d at 321. Common law privileges are incorporated in D.C. Code Ann. § 2-534(a)(4) (allowing nondisclosure of documents that would not otherwise be available to a party in litigation).

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D. Protective orders and government agreements to keep records confidential

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E. Interaction between federal and state law

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1. HIPAA

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2. DPPA

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3. FERPA

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4. Other

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F. Segregability requirements

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G. Agency obligation to identify basis of redaction or withholding

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III. Record categories - open or closed

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A. Autopsy and coroners reports

Under D.C. laws governing the medical examiner, any person with a "legitimate interest" may gain access to autopsy reports. D.C. Code Ann. § 5-1412(c). This right can be enforced by court order. Id. Although the government may attempt to protect autopsy reports by asserting the privacy, investigatory records or Vital Records Act exemptions, those exemptions do not permit nondisclosure if the Medical Examiner's statute requires disclosure. D.C. Code Ann. § 2-534(c); Dunhill v. Director, 416 A.2d 244, 247-48 (D.C. 1980).

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B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

Under D.C. Code § 2-534 (a)(3), "[i]nvestigatory records compiled for law-enforcement purposes" may be exempt from disclosure, "only to the extent that production of such records" could interfere with enforcement proceedings, deprive a person of an impartial adjudication, invade personal privacy, disclose a confidential source, disclose investigative techniques, or endanger the life or physical safety of law enforcement personnel. See also Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings.").   

The rules for active and closed investigations have not been specifically addressed.

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C. Bank records

To the extent disclosure is prohibited by federal or other D.C. law, information may be withheld under D.C. Code Ann. § 2-534(a)(6). The financial information and trade secret exemption, D.C. Code Ann. § 2-534(a)(1), also might apply.

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D. Budgets

D.C. Code § 2-534 (a)(3) requires disclosure of "[b]udget requests, submissions and reports available electronically that agencies, boards and commissions transmit to the Office of Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by the Office of the Chief Financial Officer, including baseline budget submissions and appeals, financial status reports and strategic plans and performance-based budget submissions."

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E. Business records, financial data, trade secrets

Trade secrets and commercial or financial information are specifically exempted under D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989). In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." § 2-534(a)(1).

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F. Contracts, proposals and bids

Information in or taken from any contract dealing with the receipt or expenditure of public or other funds by public bodies must be disclosed in accordance with D.C. Code Ann. § 2-536(a)(6). In other instances, the financial information and trade secret exemption, D.C. Code Ann. § 2-534(a), may come into play. Shaw Coalition Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994).

A public body must make available for inspection and copying any record produced or collected pursuant to a contract with a private contractor to perform a public function. The public body with programmatic responsibility for the contractor shall be responsible for making such records available to the same extent as if the records were maintained by the public body. D.C. Code Ann. § 2-532(a-3).

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G. Collective bargaining records

The financial data and trade secret exemption, D.C. Code Ann. § 2-534(a)(1), may apply. Generally, however, under D.C. Code Ann. § 2-536(a)(6), information in or taken from any contract dealing with the receipt or expenditure of public or other funds by public bodies must be disclosed.

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H. Economic development records

Not specifically addressed.

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I. Election Records

Not specifically addressed by any exemption. Certain election records are specifically available under D.C. law governing elections, D.C. Code Ann. § 1-1001.01 et seq., and D.C. laws governing campaigns and lobbying, D.C. Code Ann. § 1101.01 et seq.  D.C. Code Ann. § 1-1001.09(k) requires the D.C. Board of Elections and Ethics to implement a "voting system" through which voting results are publicized.

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J. Emergency Medical Services records

The privacy exemption, § 2-534(a)(2), may apply.  See Padou v. District of Columbia, 29 A.3d 973, 982-83 (D.C. 2011) (holding that the Department of Mental health sustained its burden of defending its decision to withhold information that could expose the identities of individuals in mental health treatment, because "the substantial privacy interest of the mentally ill…in protecting themselves from the continuing stigma of mental illness in our society outweighs the public interest…to know 'what the government is up to.")

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K. Gun permits

The privacy exemption, § 2-534(a)(2) or the investigatory records exemption, § 2-534(a)(3), may apply. See Washington Post Co. v. Metro. Police Dep't, FOIA App. No. 92-5 (Sept. 24, 1993) (refusing to disclose on privacy grounds names and addresses of registered gun owners, but agreeing to release information regarding licensed gun dealers because corporations have no privacy interests).

Weapons dealers must be licensed under the District's business licensing system to sell firearms, see D.C. Code § 22-4510. Under § 2-534(a)(11), information submitted to the Business License Center, such as applications for business licenses, is exempted by the D.C. Act. A person, however, may be provided with information submitted to the Business License Center for one registrant based upon the submission of either the name or address of the registrant; persons are limited to one such request per day. Federal Employer Identification numbers and Social Security numbers shall not be released except if requested by a law enforcement agency or directed by court order.

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L. Homeland security and anti-terrorism measures

The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism. D.C. Code Ann. § 2-534(a)(10). The D.C. Act also exempts information exempted by federal law because of national defense or foreign policy concerns. D.C. Code Ann. § 2-534(a)(7).

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M. Hospital reports

The privacy exemption, D.C. Code Ann. § 2-534(a)(2), may apply.

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N. Personnel records

Certain personnel records are arguably exempt under the privacy exemption, D.C. Code Ann. § 2-534(a)(2). Cf. In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications and work experiences of successful job applicants but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references, about successful applicants or any information regarding unsuccessful job applicants).

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1. Salary

The salaries of employees and officers of public bodies are public information under D.C. Code § 2-536.

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2. Disciplinary records

Not specifically addressed.

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3. Applications

Depending on the particular circumstances, an application could be public information within the meaning of D.C. Code § 2-536.  An application, for instance, might be the subject of a "final opinion[] . . . made in the adjudication of cases," D.C. Code § 2-536(a)(3), or "[c]orrespondence and materials referred to therein by and with a public body, relating to any regulatory, supervisory, or enforcement responsibilities of the public body," id. § 2-536(a)(5).  And "[a]ll pending applications for building permits and authorized building permits" automatically qualify as public records.  Id. § 2-536(a)(8A).

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4. Personally identifying information

In general, under D.C. Code Ann. § 2-534(a)(2), "[i]nformation of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" is exempt from disclosure.

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5. Expense reports

Not specifically addressed.

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6. Evaluations/performance reviews

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7. Complaints filed against employees

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8. Other

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O. Police records

The privacy exemption, D.C. Code Ann. § 2-534(a)(2), investigatory records exemption, id. at § 2-534(a)(3), and arson reporting exemption, id. at § 2-534(a)(9), may apply. Complaints and other specified police records shall be open for public inspection under D.C. Code Ann. § 5-113.06.

The Mayor's office has ruled that when a defendant has pleaded guilty to a charge and a videotaped confession was never used against him in court, the privacy rights of the police officers involved (absent allegations of police misconduct) and the victim's family bring the videotape under the privacy exemption of the D.C. Act. The defendant was found to have forfeited his privacy rights, and parts of the tape could be made public that merely identified him as the perpetrator. The Mayor's office did, however, recognize that the police officers' privacy interests must be weighed on a case-by-case basis against the public interest served by releasing their identities and information about their practices and tactics. In re Appeal of Molly Pauker, Esq., (unnumbered FOIA App.) (Office of the Mayor, Nov. 3, 1989).

No sex offender registration information is available as a public record except those records made public by regulations promulgated by the Mayor. D.C. Code Ann. § 22-4017.

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1. Accident reports

D.C. Code Ann. § 5-113.06(c) permits disclosure of motor vehicle accident reports under certain conditions.  To obtain report of a motor vehicle accident, one must not be prohibited from obtaining the information to solicit business, pursuant to D.C. Code Ann. § 22-3225.14.  In addition, the person seeking information within 21 days of an accident must produce a photo ID and provide a signed statement identifying the requested report, the name of the requester, and states that the requester is not prohibited from obtaining the information.

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2. Police blotter

Not specifically addressed.

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3. 911 tapes

Not specifically addressed.

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4. Investigatory records

Under D.C. Code § 2-534 (a)(3), "[i]nvestigatory records compiled for law-enforcement purposes" may be exempt from disclosure," only to the extent that production of such records" could interfere with enforcement proceedings, deprive a person of an impartial adjudication, invade personal privacy, disclose a confidential source, disclose investigative techniques, or endanger the life or physical safety of law enforcement personnel. See also Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings.").

The rules for active and closed investigations have not been specifically addressed.

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5. Arrest records

Arrest books are open to public inspection under D.C. Code Ann. § 5-113.06(a).

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6. Compilations of criminal histories

Not specifically addressed.

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7. Victims

Not specifically addressed.

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8. Confessions

Not specifically addressed.

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9. Confidential informants

Not specifically addressed.

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10. Police techniques

The D.C. Act does not specifically address police techniques, although § 2-534(a)(3) may apply.  Recently, the District attempted to justify withholding documents concerning the police department's use of breathalyzer tests under the investigatory-records exemption.  The D.C. Court of Appeals explained that withholding would be appropriate only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings."  Fraternal Order of Police, Metro. Labor Committee v. D.C., 82 A.3d 803, 815 (D.C. 2014).

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11. Mugshots

Not specifically addressed.

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12. Sex offender records

D.C. Code Ann. § 22-4011 gives the Court Services and Offender Supervision Agency for D.C. the authority to maintain registration of sex offenders, to affirmatively inform persons (through electronic notification, media release, or telephone calls, for example) regarding sex offenders, and to make information about sec offenders available for public inspection or in response to inquiries.  The Code gives the Metropolitan Police Department authority and control over the system of public inspection by means of the Internet.

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13. Emergency medical services records

The Act does not specifically address emergency medical services records.  The privacy exemption in § 2-534(a)(2), however, may apply.  See Padou v. District of Columbia, 29 A.3d 973, 982-83 (D.C. 2011) (holding that the Department of Mental health sustained its burden of defending its decision to withhold information that could expose the identities of individuals in mental health treatment, because "the substantial privacy interest of the mentally ill…in protecting themselves from the continuing stigma of mental illness in our society outweighs the public interest…to know what the government is up to.")

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14. Police video (e.g, body camera footage, dashcam videos)

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15. Biometric data (e.g., fingerprints)

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16. Arrest/search warrants and supporting affidavits

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17. Physical evidence

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P. Prison, parole and probation reports

The privacy exemption, D.C. Code Ann. § 2-534(a)(2), or the investigatory records exemption, id. at § 2-534(a)(3), may apply. See also Hines v. Board of Parole, 567 A.2d at 913 (exempting disclosure of inmates' pre-sentence reports, mental health assessments, academic records and records of progress within prison). The court generally should attempt to balance the privacy interests of those who are the subjects of the documents in question, or those harmed by their release, with the public interest in the release of the documents. See id. at 912. However, disclosure of certain portions may be required pursuant to D.C. Code Ann. § 2-536(a)(3) if those portions reflect the final opinion in an adjudicatory proceeding.

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Q. Professional licensing records

Not specifically addressed.  Unlikely to fall within the privacy exemption, D.C. Code Ann. §2-534(a)(2), given that professional licensure is not information that is typically kept private.

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R. Public utility records

Not specifically addressed. Depending on the records, could fall within one or more exemptions.

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S. Real estate appraisals, negotiations

D.C. Code Ann. § 42-1206 provides that "[a]ll public records which have reference to or in any way relate to real or personal property in the District of Columbia, whether the same be in the office of the Recorder of Deeds or in some other public office in the District of Columbia, shall be open to the public for inspection free of charge."

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1. Appraisals

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2. Negotiations

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3. Transactions

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4. Deeds, liens, foreclosures, title history

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5. Zoning records

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T. School and university records

Not specifically addressed.

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1. Athletic records

Not specifically addressed.

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2. Trustee records

Not specifically addressed.

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3. Student records

Not specifically addressed.

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4. School foundation/fundraising/donor records

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5. Research material or publications

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6. Other

Not specifically addressed.

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U. State guard records

Not specifically addressed.

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V. Tax records

Not specifically addressed.  The privacy exemption, D.C. Code Ann. § 2-534(a)(2), may apply.

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W. Vital Statistics

Information gathered under the Vital Records Act is excluded from the D.C. Act altogether, and can only be disclosed pursuant to the terms of the Vital Records Act. § 2-534(d).  The Vital Records Act prohibits disclosure of the records noted below except as provided by that chapter. § 7-219(a). Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right.

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1. Birth certificates

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2. Marriage and divorce

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3. Death certificates

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4. Infectious disease and health epidemics

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IV. Procedure for obtaining records

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A. How to start

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1. Who receives a request?

The D.C. Act requires a "public body" to act on a FOIA request reasonably describing any public record. FOIA requests under the D.C. Act should be directed to the Freedom of Information Officer of the public body or agency that maintains the requested records or, if there is no FOIA Officer, to the head of the public body or agency that maintains the requested records.

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2. Does the law cover oral requests?

The D.C. Act does not expressly address oral requests as a general matter.  It appears, however, that oral requests are permissible, although a requester later may be asked to submit the request in writing. See 1 DCMR § § 402.1 & 402.2. In all events, it is prudent to submit requests in writing to ensure that there is a record of the request.  Section 2-536 specifically provides that the records described in that section are public information "and do not require a written request for information."

The D.C. Act provides that a person has a right to inspect "at his or her discretion," and copy "any public record of a public body" unless otherwise exempted "in accordance with reasonable rules that shall be issued by a public body after notice and comment, concerning the time and place of access."  § 2-532(a).

Although the D.C. Act does not expressly address the question of procedure after an oral request is denied, after receiving a formal denial, or a denial by operation of the fact that no determination is made within the statutory time period, a requester may appeal the decision to the Mayor. D.C. Code Ann. § 2-537(a).  Neither the statute nor the courts have addressed how the requester can memorialize the refusal, and whether or not subsequent steps need to be in writing.

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3. Required contents of a written request

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

Disclosure must be made, or denied, within 15 days, excluding weekends and legal holidays. D.C. Code Ann. § 2-532(c). In unusual circumstances, defined by the statute, an agency may extend the deadline up to 10 days, excluding weekends and holidays. Id. § 2-532(d).

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2. Informal telephone inquiry as to status

There is no prohibition against, or specific allowance for, telephone inquiries as to status of a request.

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3. Is delay recognized as a denial for appeal purposes?

Failure to respond within the statutory time frame is considered a denial and an exhaustion of remedies, unless an appeal to the Mayor is brought. D.C. Code Ann. § 2-532(e).

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4. Any other recourse to encourage a response

An appeal to the Mayor's office draws the attention of the agency, or the agency's FOIA officer, to a neglected FOIA request, and the matter may thereby be resolved. See, e.g., EJD Assocs. Inc. v. Office of the D.C. Controller, FOIA App. No. 95037 (Office of the Mayor, Sept. 26, 1995) (appeal of constructive denial dismissed because request was addressed).

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C. Administrative appeal

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

In most cases, an appeal should be directed to the Mayor. D.C. Code Ann. § 2-537(a). A copy of the appeal should be provided to the public body whose denial is being appealed.  A person denied the right to inspect a public record in the possession of the Council need not appeal to the Mayor and may institute court proceedings. D.C. Code Ann. § 2-537(a-1).  Presently, there are no alternatives to these methods of appealing a formal denial.

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3. Fee issues

There is no specific provision regarding the appeal of fees. The language of D.C. Code § 2-537(a) — "[a]ny person denied the right to inspect a public record of a public body may petition the Mayor . . ." — may give a requester room to argue that his or her "right to inspect a public record" has been effectively denied by the imposition of an unaffordably high fee.

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4. Contents of appeal

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5. Waiting for a response

The Mayor has 10 days, not including weekends and holidays, in which to act on the appeal. D.C. Code Ann. § 2-537(a).

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6. Subsequent remedies

If the Mayor denies the appeal, or fails to act within 10 working days, court review is possible. D.C. Code Ann. § 2-537(a)(1).

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D. Additional dispute resolution procedures

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1. Attorney General

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2. Ombudsperson

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3. Other

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E. Court action

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1. Who may sue?

Other than with respect to documents in the possession of the D.C. Council, any individual may commence court proceedings to challenge the withholding of documents if: (a) no response is made within the statutory time period following the initial request; (b) the Mayor denies an appeal; (c) the Mayor fails to act on an appeal within the statutory time period; or (d) an agency has failed to release documents, even though the Mayor has authorized the documents to be released. D.C. Code Ann. § 2-537(a)(1), (2).

Any person denied the right to inspect a public record in the possession of the D.C. Council may initiate court proceedings to challenge the withholding. D.C. Code Ann. § 2-537(a-1).

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2. Priority

There is no statutory priority given to FOIA suits.

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3. Pro se

A requester may proceed pro se. A requester proceeding pro se is not entitled to attorneys' fees if he or she ultimately prevails on the claim. Donahue v. Thomas, 618 A.2d 601 (D.C. 1992).

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4. Issues the court will address

The court reviews the matter de novo, D.C. Code § 2-537(b), and should provide a decision that is sufficiently detailed to demonstrate that such review has occurred. The decision should articulate the precise relationship between each claim for exemption and the contents of the specific documents held to be exempt. Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 523 (D.C. 1989). In addition, the court is permitted to examine any withheld documents in camera to determine whether they should be exempt. D.C. Code Ann. § 2-537(b). However, requests for in camera inspection must be relatively focused. When a party has simply requested a mass of documents, many of which are clearly exempt from release, the court has no obligation to review the documents to determine whether they contain some parts that may be disclosed. Hines v. Board of Parole, 567 A.2d 909, 913 (D.C. 1989).

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a. Denial

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b. Fees for records

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c. Delays

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d. Patterns for future access (declaratory judgment)

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5. Pleading format

The Superior Court rules apply.

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6. Time limit for filing suit

The D.C. Act does not provide a specific time limit.   D.C. Code § 12-301(8), however, creates a general three-year statute of limitations for all actions.  Federal courts have applied a similar catch-all statute of limitations to FOIA actions.  See, e.g., Spannaus v. Dep't of Justice, 824 F. 2d 52, 55-56 (D.C. Cir. 1987).

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7. What court?

Suits should be filed in the Superior Court for the District of Columbia. D.C. Code Ann. § 2-537(b).

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8. Burden of proof

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9. Judicial remedies available

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10. Litigation expenses

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a. Attorney fees

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b. Court and litigation costs

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11. Fines

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

The rules governing appeals from the District of Columbia Superior Court apply.

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2. Time limits for filing appeals

The rules governing appeals from the District of Columbia Superior Court apply.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press has a substantial interest in reporters' right of access to government information and frequently files friend-of-the court briefs on open records issues.

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G. Addressing government suits against disclosure

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Open Meetings

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I. Statute - basic application

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A. Who may attend?

The District of Columbia "Open Meetings Act," D.C. Code Ann. § 1-207.42, provides access to "the public." Id. § 1-207.42(a).

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B. What governments are subject to the law?

The Open Meetings Act, which replaced the previous Sunshine Act, was signed into law in January 2011.  It has been discussed in only one reported case.   Smith v. Henderson, 982 F. Supp. 2d 32, 48 (D.D.C. 2013) (dismissing claim that school board violated Open Meetings Act).  The Act provides that "[a]ll meetings (including hearings) of any department, agency, board or commission of the District government, including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public." D.C. Code Ann. § 1-207.42(a).

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1. State

Not applicable.

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2. County

Not applicable.

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3. Local or municipal

The Act provides that "[a]ll meetings (including hearings) of any department, agency, board or commission of the District government, including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public." D.C. Code Ann. § 1-207.42(a).

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C. What bodies are covered by the law?

The Open Meetings Act provides that "[a]ll meetings (including hearings) of any department, agency, board or commission of the District government, including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public." D.C. Code Ann. § 1-207.42(a).  "Meeting" is defined as "any gathering of a quorum of the members of a public body…at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting, regardless of whether held in person, by telephone, electronically, or by other means of communication."  Id. § 2-573(1).  The Act then defines "public body" to include only the boards that supervise or control agencies and the boards of directors of instrumentalities, and to exclude any District agency or instrumentality itself.  D.C. Code Ann. § 2-573(3).

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1. Executive branch agencies

The Open Meetings Act provides that "[a]ll meetings (including hearings) of any department, agency, board or commission of the District government, including meetings of the Council of the District of Columbia, at which official action of any kind is taken shall be open to the public." D.C. Code Ann. § 1-207.42(a).  For purposes of the open meeting rule, the Act defines a "meeting" as "any gathering of a quorum of the members of a public body…at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting, regardless of whether held in person, by telephone, electronically, or by other means of communication."  Id. § 2-574(1).  The Act then defines "public body" to include only the boards that supervise or control agencies and the boards of directors of instrumentalities, and to exclude any District agency or instrumentality itself.  D.C. Code Ann. § 2-574(3).

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a. What officials are covered?

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b. Are certain executive functions covered?

The Act does not restrict its application only to certain executive functions.

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c. Are only certain agencies subject to the act?

The Act does not restrict its application only to "meetings," as defined in the statute of particular agencies.

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2. Legislative bodies

The D.C. Council is subject to the Open Meetings Act.  D.C. Code Ann. § 1-207.42(a); id. § 2-574(3).

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3. Courts

The Open Meetings Act does not apply to District of Columbia courts.  For purposes of the open meeting requirement, the Act defines a "meeting" as "any gathering of a quorum of the members of a public body…at which the members consider, conduct, or advise on public business."  D.C. Code Ann. § 2-574(1).  The Act excludes District of Columbia courts from the definition of a "public body." Id. § 2-574(3).

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4. Nongovernmental bodies receiving public funds or benefits

The Open Meetings Act does not apply to "[g]overning bodies of individual public charter schools."  D.C. Code Ann. § 2-574(3).  Like District of Columbia courts, governing bodies of individual charter schools are excluded from the definition of "public body."  Id.  The Act otherwise does not discuss its applicability to nongovernmental bodies receiving public funds or benefits.

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5. Nongovernmental groups whose members include governmental officials

Not specifically addressed.

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6. Multi-state or regional bodies

Not specifically addressed.

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7. Advisory boards and commissions, quasi-governmental entities

The Open Meetings Act applies to meetings of an "advisory body that takes official action by the vote of its members convened for such purpose." D.C. Code Ann. § 2-574(3).  The Act does not apply to meetings of Advisory Neighborhood Commissions, provided that those meetings comply with the requirements set forth in D.C. Code Ann. § 1-309.11.

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8. Other bodies to which governmental or public functions are delegated

The Open Meetings Act applies to meetings of "a board of directors of an instrumentality."  D.C. Code Ann. § 2-574(3).

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9. Appointed as well as elected bodies

Not specifically addressed.

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D. What constitutes a meeting subject to the law

The Open Meetings Act defines a meeting as "any gathering of a quorum of the members of a public body, including hearings and roundtables, whether formal or informal, regular, special, or emergency, at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting, regardless of whether held in person, by telephone, electronically, or by other means of communication." D.C. Code Ann. § 2-574(1).  A public body is "any government council, including the Council of the District of Columbia, board, commission, or similar entity, including a board of directors of an instrumentality, a board which supervises or controls an agency, or an advisory body that takes official action by the vote of its members convened for such purpose."  Id. § 2-574(3).  Section 2-574(3) also lists several bodies that do not fall within the definition of "public body" and thus are exempt from the open meetings requirements:

(A) A District agency or instrumentality (other than the board which supervises or controls an agency or the board of directors of an instrumentality);

(B) The District of Columbia courts;

(C) Governing bodies of individual public charter schools;

(D) The Mayor's cabinet;

(E) The professional or administrative staff of public bodies when they meet outside the presence of a quorum of those bodies; or

(F) Advisory Neighborhood Commissions; provided, that this subchapter shall not affect the requirements set forth in § 1-309.11.

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1. Number that must be present

A "quorum" of the members of a given public body must be present in order for a gathering to constitute a meeting subject to the Act.  D.C. Code Ann. § 2-574(1).

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a. Must a minimum number be present to constitute a "meeting"?

A "quorum" of the members of a given public body must be present in order for a gathering to constitute a "meeting" subject to the Act.  D.C. Code Ann. § 2-574(1).

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b. What effect does absence of a quorum have?

Absent a quorum, a gathering of a public body presumably does not constitute a "meeting" subject to the Act.  D.C. Code Ann. §2-574(1).

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2. Nature of business subject to the law

The Open Meetings Act applies to all meetings "at which the members consider, conduct, or advise on public business, including gathering information, taking testimony, discussing, deliberating, recommending, and voting."  D.C. Code Ann. § 2-574(1).

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a. "Information gathering" and "fact-finding" sessions

The Open Meetings Act applies to information gathering sessions.  D.C. Code Ann. § 2-574(1).

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b. Deliberation toward decisions

The Open Meetings Act applies to meetings involving deliberations over public business.  D.C. Code Ann. § 2-574(1).

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3. Electronic meetings

Electronic meetings are subject to the Open Meetings Act.  D.C. Code Ann. § 2-574(1).

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a. Conference calls and video/Internet conferencing

Meetings held by telephone "or by other means of communication" are subject to the Open Meetings Act.  D.C. Code Ann. § 2-574(1).

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b. E-mail

The Act contains a specific exemption for e-mail exchanges.  It states that e-mail exchanges "shall not constitute an electronic meeting."  D.C. Code Ann. § 2-577(c).

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c. Text messages

Although the Open Meetings Act does not specifically address meetings conducted by text message, it applies to meetings held by any "means of communication."  D.C. Code Ann. § 2-574(1).  This catch-all category may include text messages, especially when read in light of the instruction to construe the Act broadly to maximize public access to meetings.  Id. § 2-573.  No reported case in the District of Columbia has considered whether text messages are sufficiently analogous to e-mails to come within the statute's exemption for e-mail exchanges.

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d. Instant messaging

Although the Open Meetings Act does not specifically address meetings conducted by instant messaging, it applies to meetings held by any "means of communication."  D.C. Code Ann. § 2-574(1).  This catch-all category may include instant messages, especially when read in light of the instruction to construe the Act broadly to maximize public access to meetings.  Id. § 2-573.  No reported case in the District of Columbia has considered whether instant messages are sufficiently analogous to e-mails to come within the statute's exemption for e-mail exchanges.

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e. Social media and online discussion boards

Although the Open Meetings Act does not specifically address meetings conducted by social media or online discussion boards, it applies to meetings held by any "means of communication."  D.C. Code Ann. § 2-574(1).  This catch-all category may include social media and online discussion boards, especially when read in light of the instruction to construe the Act broadly to maximize public access to meetings.  Id. § 2-573.  No reported case in the District of Columbia has considered whether social media and online discussion boards are sufficiently analogous to e-mails to come within the statute's exemption for e-mail exchanges.

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E. Categories of meetings subject to the law

The Open Meetings Act applies to all meetings "whether formal or informal, regular, special, or emergency."  D.C. Code Ann. § 2-574(1).  Although the District of Columbia Court of Appeals has not yet had an opportunity to consider the Act's impact on its interpretations of D.C.'s previous open meetings statute, the Act appears to have been intended to "broaden" the prior statute, see Council of the D.C. Comm. on Gov't Operations and Env't, Report on Bill 18-716, the "Open Meetings Act of 2010," at 5 (D.C. 2010) [hereinafter Committee Report], available at http://tinyurl.com/3d48m9z, and reverse the D.C. Court of Appeals' practice of interpreting the open meetings requirement narrowly.  See D.C. Code Ann. § 2-573 (instructing that the Act "shall be construed broadly to maximize public access to meetings"); Committee Report, supra, at 3 (blaming the previous statute's "failure to create clear definitions, clear procedures, and specific exemptions" for District bodies' tendency "to interpret the law narrowly").

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1. Regular meetings

Open meeting requirements apply to regular meetings.  D.C. Code Ann. § 2-574(1).

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a. Definition

Not specifically addressed.

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b. Notice

Notice must be provided "when meetings are scheduled and when the schedule is changed."  The Act requires public bodies to establish and continually update an annual schedule of its meetings so as to provide maximum possible notice.  D.C. Code Ann. § 2-576(1).

The Open Meetings Act requires a public body to provide notice "as early as possible, but not less than 48 hours or 2 business days, whichever is greater, before a meeting."  D.C. Code Ann. § 2-576(1). 

Notice shall be posted 1) in the office of the public body or a location that is readily accessible to the public, and 2) on the website of the public body or the District government.  D.C. Code Ann. § 2-576(2).  Notice also must be published in the District of Columbia register "as timely as practicable."  Id. § 2-576(3).

Each meeting notice must include the date, time, location, and planned agenda to be covered in the meeting.  D.C. Code Ann. § 2-576(5).

If the meeting or any portion of the meeting is to be closed, the notice also must, if feasible, provide a notice of intent to close the meeting and citations to the reason for closure under § 2-575(b).  D.C. Code Ann. § 2-576(5).

Section 2-579 of the Open Meetings Act specifies several remedies and penalties for failure to give adequate notice:

1)      If the court finds that a resolution, rule, act, regulation, or other official action was taken, made, or enacted in violation of the Act, the court may order an appropriate remedy, including requiring additional forms of notice, postponing a meeting, or declaring action taken at a meeting to be void. Actions shall not be declared void unless the court finds that the balance of equities compels the action or the court concludes that the violation was not harmless.

2)      If the court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of the Act, the court may a) enjoin the public body from closing the meeting or portion of the meeting; b) order that future meetings of the same kind be open to the public; or c) order that the record of a meeting be made public.

3)      If the court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the provisions of the Open Meetings Act, the court may impose a civil fine of not more than $ 250 for each violation.

4)      The Act also authorizes courts to grant “such additional relief as it finds necessary”

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c. Minutes

All meetings, whether open or closed, must be recorded electronically, unless a recording is not feasible, in which case detailed minutes must be kept.  D.C. Code Ann. § 2-578.
Records of a meeting are available to the public unless the records, or a portion of the records, may be withheld under the standard established for closed meetings in § 2-575(b).  Records of the minutes of a meeting must be available for public inspection no later than three business days after the meeting.  Full records of a meeting must be available for public inspection no later than seven business days after the meeting.  D.C. Code Ann. § 2-578(b).

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2. Special or emergency meetings

Open meeting requirements apply to both special and emergency meetings, subject to particular exceptions discussed infra.  D.C. Code Ann. § 2-574(1).

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a. Definition

Not specifically addressed.

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b. Notice requirements

Special meetings are subject to the same notice requirements as regular meetings.  However, the Act provides distinct notice requirements for emergency meetings and requires that when an emergency meeting is convened, the presiding officer must open the meeting with a statement explaining, among other things, how public notice was provided.  D.C. Code Ann. § 2-577(d).

A public body must give public notice of an emergency meeting at the same time it provides notice to its members.  D.C. Code Ann. § 2-576(4).  Thus, emergency meetings are exempt from the minimum notice period applicable to regular and special meetings.

A public body may give notice of an emergency meeting by posting in the office of the public body, in a location readily accessible to the public, or on the website of the public body or the district government.  D.C. Code Ann. § 2-576(4).  The posting requirement for emergency meetings is relaxed in comparison to that for regular and special meetings, for which notice must be posted in multiple venues.

Each meeting notice must include the date, time, location, and planned agenda to be covered in the meeting.  D.C. Code Ann. § 2-576(5).

If the meeting or any portion of the meeting is to be closed, the notice also must, if feasible, provide a notice of intent to close the meeting and citations to the reason for closure under § 2-575(b).  D.C. Code Ann. § 2-576(5).

The penalties and remedies for failure to give adequate notice of special or emergency meetings are the same as those for failure to give adequate notice of regular meetings, D.C. Code Ann. §§ 2-579(c)-(f):

1)      If the court finds that a resolution, rule, act, regulation, or other official action was taken, made, or enacted in violation of the Act, the court may order an appropriate remedy, including requiring additional forms of notice, postponing a meeting, or declaring action taken at a meeting to be void. Actions shall not be declared void unless the court finds that the balance of equities compels the action or the court concludes that the violation was not harmless.

2)      If the court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of the Act, the court may a) enjoin the public body from closing the meeting or portion of the meeting; b) order that future meetings of the same kind be open to the public; or c) order that the record of a meeting be made public.

3)      If the court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the provisions of the Open Meetings Act, the court may impose a civil fine of not more than $ 250 for each violation.

4)      The Act also authorizes courts to grant "such additional relief as it finds necessary to serve the purposes" of the Act.

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c. Minutes

Special and emergency meetings are subject to the same records-keeping requirements as regular meetings.  See D.C. Code Ann. § 2-578.

At a minimum, public bodies must keep detailed minutes of their meetings.  However, whenever feasible, they must record their meetings electronically.  D.C. Code Ann. § 2-578(a).

Records of a meeting are available to the public unless the records, or a portion of the records, may be withheld under the standard established for closed meetings in § 2-575(b).  Records of the minutes of a meeting must be publicly available no later than three business days after the meeting.  Full records of a meeting must be publicly available no later than seven business days after the meeting.  D.C. Code Ann. § 2-578(b).

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3. Closed meetings or executive sessions

The Open Meetings Act creates limited exceptions to the open meetings rule.  Section 2-575(b) specifies the following reasons justifying the closing of a meeting:

(1)   A law or court order requires that a particular matter or proceeding not be public;

(2)   To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the bargaining position or negotiating strategy of the public body;

(3)   To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating incentives relating to the location or expansion of industries or other businesses or business activities in the District;

(4)   (A) To consult with an attorney to obtain legal advice and to preserve the attorney-client privilege between an attorney and a public body, or to approve settlement agreements; provided, that, upon request, the public body may decide to waive the privilege.

(B) But nothing in the Act shall be construed to permit a public body to close a meeting that would otherwise be open merely because the attorney for the public body is a participant;

(5)   Planning, discussing, or conducting specific collective bargaining negotiations;

(6)   Preparation, administration, or grading of scholastic, licensing, or qualifying examinations;

(7)   To prevent premature disclosure of an honorary degree, scholarship, prize, or similar award;

(8)   To discuss and take action regarding specific methods and procedures to protect the public from existing or potential terrorist activity or substantial dangers to public health and safety, and to receive briefings by staff members, legal counsel, law enforcement officials, or emergency service officials concerning these methods and procedures; provided, that disclosure would endanger the public and a record of the closed session is made public if and when the public would not be endangered by that disclosure;

(9)   To discuss disciplinary matters;

(10) To discuss the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of government appointees, employees, or officials;

(11) To discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained;

(12) To train and develop members of a public body and staff;

(13) To deliberate upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions; and

(14) To plan, discuss, or hear reports concerning ongoing or planned investigations of alleged criminal or civil misconduct or violations of law or regulations, if disclosure to the public would harm the investigation.

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a. Definition

The Open Meetings Act does not specifically define what makes a meeting "closed."  However, the Act states that a meeting shall be deemed open to the public if 1) the public is permitted to be physically present; 2) the news media, as defined in D.C. Code Ann. § 16-4701, is permitted to be physically present; or 3) the meeting is televised.  D.C. Code Ann. § 2-575(a).  Presumably, any meeting that does not satisfy at least one of those conditions is considered closed.

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b. Notice requirements

Closed meetings are subject to the same notice requirements as open meetings.  See D.C. Code Ann. § 2-576(1).

In addition to their general authority to order appropriate remedies for violations of the Open Meetings Act, courts have special authorities related to closed meetings.  First, if a court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the provisions of the Open Meetings Act—presumably including those related to adequate notice—the court may impose a civil fine of not more than $ 250 for each violation.  See D.C. Code Ann. § 2-579(e).  Second, if a court finds that a public body plans to hold a closed meeting in violation of the Act, it may enjoin the public body from closing the meeting, order that future meetings of the same kind be open, or order that the record of a meeting be made public.  Id. § 2-579(c).

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c. Minutes

Closed meetings are subject to the same record-keeping requirements as open meetings.  Thus, all closed meetings must be recorded electronically, unless a recording is not feasible, in which case detailed minutes must be kept.  See D.C. Code Ann. § 2-578(a).

Minutes may be withheld from the public record under the standards established for closed meetings in D.C. Code Ann. § 2-575(b).

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d. Requirement to meet in public before closing meeting

Before closing a meeting or portion of a meeting, a public body must meet in public session and a majority of members present must vote in favor of closure.  D.C. Code Ann. § 2-575(c)(1).

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e. Requirement to state statutory authority for closing meetings before closure

Before closure, the presiding officer must make a statement providing the reason(s) for closure, citing the relevant authority in D.C. Code Ann. § 2-575(b), and providing the subjects to be discussed in closed session.  Id. § 2-575(c)(2).

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f. Tape recording requirements

Whenever feasible, meetings must be recorded electronically. Whenever recording is not feasible, detailed minutes of the meeting must be kept.  D.C. Code Ann. § 2-578.

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F. Recording/broadcast of meetings

Whenever feasible, meetings must be recorded by electronic means.  Any recording or transcript of an open meeting must be made available to the public for inspection. D.C. Code Ann. § 2-578.

The Open Meetings Act states that televising a meeting is sufficient to have it deemed open to the public.  D.C. Code Ann. § 2-575(a).  However, no provision specifically requires or permits the broadcasting of meetings.

In part because the law does not specifically address the taping of meetings, two reporters were arrested in June 2011 for filming a D.C. Taxicab Commission meeting.  Commission Chairwoman Dena C. Reed initially defended the arrests on the grounds that the Commission had banned videotaping of its proceedings because it found television cameras to be disruptive.  See Mike DeBonis, D.C. Taxicab Commission Says It Banned "Disruptive" Videotaping, Wash. Post, June 23, 2011, http://www.washingtonpost.com/blogs/mike-debonis/post/dc-taxicab-commission-says-it-banned-disruptive-videotaping/2011/06/23/AGzlMdhH_blog.html?wprss=mike-debonis.

The Commission subsequently reversed its policy to permit "a member of the public, including any representative of the media, [to] record or photograph the proceedings of the Commission at an open meeting by means of a tape recorder or any other recording device so long as the person does not impede the orderly conduct of the meeting."  Under the new policy, the Commission may restrict the movement of a person using a recording device if such restriction is necessary to maintain the orderly conduct of the meeting.  The Commission also is not responsible for providing a power source or staging accommodations for any recording devices or cameras.  See Press Release, D.C. Taxicab Comm'n, Open Meetings Policy and Protocol (Aug. 1, 2011), available at http://newsroom.dc.gov/show.aspx/agency/dctaxi/section/2/release/22219/year/2011.

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1. Sound recordings allowed

Not specifically addressed.

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2. Photographic recordings allowed

Not specifically addressed.

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G. Access to meeting materials, reports and agendas

Written transcripts for all open meetings are publicly available, and copies of the transcripts are available upon request "at reasonable cost." D.C. Code Ann. § 1-207.42.  Meeting materials, reports, and agendas would likely be available as "public records" under the D.C. Act.  Id. § 2-532.

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H. Are there sanctions for noncompliance?

The Open Meetings Act does not create a private cause of action for violations of the statute.  It instead entrusts enforcement to D.C.'s Open Government Office.  D.C. Code Ann. § 2-579(a).  Section 2-579 of the Act specifies several remedies and penalties for noncompliance:

1)  If the court finds that a resolution, rule, act, regulation, or other official action was taken, made, or enacted in violation of the Act, the court may order an appropriate remedy, including requiring additional forms of notice, postponing a meeting, or declaring action taken at a meeting to be void. Actions shall not be declared void unless the court finds that the balance of equities compels the action or the court concludes that the violation was not harmless.

2)  If the court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of the Act, the court may a) enjoin the public body from closing the meeting or portion of the meeting; b) order that future meetings of the same kind be open to the public; or c) order that the record of a meeting be made public.</p)

3)  If the court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the provisions of the Open Meetings Act, the court may impose a civil fine of not more than $ 250 for each violation.

4)  The Act also authorizes courts to grant "such additional relief as it finds necessary to serve the purposes" of the Act.

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The Open Meetings Act, D.C. Code Ann. § 2-575(b), specifies fourteen reasons why a meeting, or portion of a meeting, may be closed:

(1)   A law or court order requires that a particular matter or proceeding not be public;

(2)   To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the bargaining position or negotiating strategy of the public body;

(3)   To discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating incentives relating to the location or expansion of industries or other businesses or business activities in the District;

(4)   (A) To consult with an attorney to obtain legal advice and to preserve the attorney-client privilege between an attorney and a public body, or to approve settlement agreements; provided, that, upon request, the public body may decide to waive the privilege.

(B) But nothing in the Act shall be construed to permit a public body to close a meeting that would otherwise be open merely because the attorney for the public body is a participant;

(5)   Planning, discussing, or conducting specific collective bargaining negotiations;

(6)   Preparation, administration, or grading of scholastic, licensing, or qualifying examinations;

(7)   To prevent premature disclosure of an honorary degree, scholarship, prize, or similar award;

(8)   To discuss and take action regarding specific methods and procedures to protect the public from existing or potential terrorist activity or substantial dangers to public health and safety, and to receive briefings by staff members, legal counsel, law enforcement officials, or emergency service officials concerning these methods and procedures; provided, that disclosure would endanger the public and a record of the closed session is made public if and when the public would not be endangered by that disclosure;

(9)   To discuss disciplinary matters;

(10)  To discuss the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of government appointees, employees, or officials;

(11) To discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained;

(12) To train and develop members of a public body and staff;

(13) To deliberate upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions; and

(14) To plan, discuss, or hear reports concerning ongoing or planned investigations of alleged criminal or civil misconduct or violations of law or regulations, if disclosure to the public would harm the investigation.

The statutory provision governing closure is discretionary; it states that a meeting "may" be closed pursuant to the specified reasons.  D.C. Code Ann. § 2-575(b). 

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2. Description of each exemption

Section 2-575(b) of the Open Meetings Act lists fourteen reasons why a meeting, or portion of a meeting, may be closed.  It does not provide additional description.  The Act allows a public body to seek an advisory opinion from the Open Government Office regarding compliance with the Act.  D.C. Code Ann. § 2-579(g).

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B. Any other statutory requirements for closed or open meetings

A public body that meets in closed session may not discuss or consider matters other than those specified as a reason for closing the session.  D.C. Code Ann. § 2-575(d).

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C. Court mandated opening, closing

If a court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of § 2-579(d) of the Open Meetings Act, it may enjoin the public body from closing the meeting or portion of the meeting; order that future meetings of the same kind be open to the public; or order that the record of the meeting be made public.  D.C. Code Ann. § 2-579(c).  There are no provisions allowing a court to order that a meeting be closed.

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III. Meeting categories - open or closed

The Open Meetings Act specifies limited categories of meetings that may be closed; all other types of meetings must be open.

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A. Adjudications by administrative bodies

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1. Deliberations closed, but not fact-finding

Deliberations upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions may be closed.  D.C. Code Ann. § 2-575(b)(13).  The Act does not specifically address fact-finding.

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2. Only certain adjudications closed, i.e. under certain statutes

Not specifically addressed.

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B. Budget sessions

Not specifically addressed.

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C. Business and industry relations

A meeting, or portion of a meeting, may be closed to discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating incentives relating to the location or expansion of industries or other business or business activities in the District of Columbia.  D.C. Code Ann. § 2-575(b)(3).

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D. Federal programs

Not specifically addressed.

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E. Financial data of public bodies

Not specifically addressed.

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F. Financial data, trade secrets, or proprietary data of private corporations and individuals

A meeting, or portion of a meeting, may be closed to discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained.  D.C. Code Ann. § 2-575(b)(11).

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G. Gifts, trusts and honorary degrees

A meeting, or portion of a meeting, may be closed to prevent premature disclosure of an honorary degree, scholarship, prize, or similar award.  D.C. Code Ann. § 2-575(b)(7).

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H. Grand jury testimony by public employees

Not specifically addressed.

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I. Licensing examinations

A meeting, or portion of a meeting, may be closed for the preparation, administration, or grading of scholastic, licensing, or qualifying examinations.  D.C. Code Ann. § 2-575(b)(6).

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J. Litigation, pending litigation or other attorney-client privileges

A meeting, or portion of a meeting, may be closed to consult with an attorney to obtain legal advice and to preserve the attorney-client privilege between an attorney and a public body, or to approve settlement agreements; provided that, upon request, the public body may decide to waive the privilege.  However, the mere participation at a meeting of an attorney for the public body is not grounds for closure.  D.C. Code Ann. § 2-575(b)(4).

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K. Negotiations and collective bargaining of public employees

A meeting, or portion of a meeting, may be closed for planning, discussing, or conducting specific collective bargaining negotiations.  D.C. Code Ann. § 2-575(b)(5).

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1. Any sessions regarding collective bargaining

No case law addresses the scope of the collective-bargaining exemption.  However, the provision is written broadly to encompass both planning for the negotiations and the negotiations themselves.

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2. Only those between the public employees and the public body

Not specifically addressed.

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L. Parole board meetings, or meetings involving parole board decisions

Not specifically addressed.

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M. Patients, discussions on individual patients

The Act does not specifically authorize meetings concerning patients to be closed.  However, meetings may be closed pursuant to laws that require particular matters not to be made public.  Thus, other privacy laws concerning patient health information may be grounds for closure.  See D.C. Code Ann. § 2-575(b)(1).

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N. Personnel matters

In addition to the topics listed infra, a meeting, or portion of a meeting, may be closed to discuss the appointment, employment, assignment, promotion, or compensation of government appointees, employees, or officials.  D.C. Code Ann. § 2-575(b)(10).

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1. Interviews for public employment

Not specifically addressed.

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2. Disciplinary matters, performance or ethics of public employees

A meeting, or portion of a meeting, may be closed to discuss disciplinary matters or the performance evaluation of government appointees, employees, or officials.  D.C. Code Ann. § 2-575(b)(10).

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3. Dismissal, considering dismissal of public employees

A meeting, or portion of a meeting, may be closed to discuss the discipline, demotion, removal, or resignation of government appointees, employees, or officials.  D.C. Code Ann. § 2-575(b)(10).

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O. Real estate negotiations

A meeting, or portion of a meeting, may be closed to discuss, establish, or instruct the public body's staff or negotiating agents concerning the position to be taken in negotiating the price and other material terms of a contract, including an employment contract, if an open meeting would adversely affect the bargaining position or negotiating strategy of the public body.  D.C. Code Ann. § 2-575(b)(2).

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P. Security, national and/or state, of buildings, personnel or other

A meeting, or portion of a meeting, may be closed to discuss and take action regarding specific methods and procedures to protect the public from existing or potential terrorist activity or substantial dangers to public health and safety, and to receive briefings by staff members, legal counsel, law enforcement officials, or emergency service officials concerning these methods and procedures; provided, that disclosure would endanger the public and a record of the closed session is made public if and when the public would not be endangered by that disclosure.  D.C. Code Ann. § 2-575(b)(8).

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Q. Students, discussions on individual students

Not specifically addressed.

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IV. Procedure for asserting right of access

The Open Meetings Act establishes an Open Government Office, D.C. Code Ann. § 2-592, that may bring a lawsuit in D.C. Superior Court for injunctive or declaratory relief for any violation of the Act before or after the meeting in question takes place.  D.C. Code Ann. § 2-578(a).  The Act explicitly states that nothing in it shall be construed to create or imply a private cause of action for a violation.  Id. § 2-579(a)(1).  Curiously, the Act also states that nothing in it shall restrict the private right of action citizens have under § 1-207.42.  Id. § 2-598(a)(2).  No court has specifically considered what private rights of action § 1-207.42 creates.  Cf. Smith v. Henderson, 982 F. Supp. 2d 32, 48 (D.D.C. 2013) (dismissing Sunshine Act claim against D.C. Public Schools on the merits after holding that plaintiffs had Article III standing).  However, a line of D.C. Court of Appeals cases interpreting identical language from the Open Meeting Act's predecessor appears to assume, without deciding, that private citizens may bring suits to invalidate official actions that violate the open meetings rule.  See Jordan v. District of Columbia, 362 A.2d 114, 117-19 (D.C. 1976); see also Bernstein v. D.C. Bd. of Zoning Adjustment, 376 A.2d 816, 820 n.12 (D.C. 1977) (affirming Jordan); Dupont Circle Citizens Ass'n v. D.C. Bd. of Zoning Adjustment, 364 A.2d 610, 613-14 (D.C. 1976) (same).

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A. When to challenge

The Open Government Office may bring a lawsuit to enforce the Open Meetings Act before or after the meeting in question takes place.  D.C. Code Ann. § 2-579(a).

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1. Does the law provide expedited procedure for reviewing request to attend upcoming meetings?

Not specifically addressed.

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2. When barred from attending

Not specifically addressed.

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3. To set aside decision

The Act directs courts to declare actions void only if the court finds that the balance of equities compels the declaration or that the violation was not harmless.  D.C. Code Ann. § 2-579(d).

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4. For ruling on future meetings

A court may order future meetings to be made public if it finds that a public body plans to hold a closed meeting in violation of the Open Meetings Act.  D.C. Code Ann. § 2-579(c)(2).

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5. Other

Not specifically addressed.

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B. How to start

Not specifically addressed.

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1. Where to ask for ruling

Not specifically addressed.

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a. Administrative forum

Not specifically addressed.

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b. State attorney general

Not specifically addressed.

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c. Court

The Open Government Office must file any enforcement lawsuits in D.C. Superior Court.  D.C. Code Ann. § 2-579(a).

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2. Applicable time limits

Not specifically addressed.

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3. Contents of request for ruling

Not specifically addressed.

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4. How long should you wait for a response

Not specifically addressed.

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5. Are subsequent or concurrent measures (formal or informal) available?

Not specifically addressed.

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C. Court review of administrative decision

Not specifically addressed.

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1. Who may sue?

The Open Meetings Act establishes an Open Government Office, D.C. Code Ann. § 2-592, that may bring a lawsuit in D.C. Superior Court for injunctive or declaratory relief for any violation of the Act before or after the meeting in question takes place.  D.C. Code Ann. § 2-579(a).  The Act explicitly states that nothing in it shall be construed to create or imply a private cause of action for a violation.  Id. § 2-579(a)(1).  The Act also states, however, that nothing in it shall restrict the private right of action citizens have under § 1-207.42.  Id. § 2-579(a)(2).  No court has specifically considered what private rights of action § 1-207.42 creates.  Cf. Smith v. Henderson, 982 F. Supp. 2d 32, 48 (D.D.C. 2013) (dismissing Sunshine Act claim against D.C. Public Schools on the merits after holding that plaintiffs had Article III standing).   However, a line D.C. Court of Appeals cases interpreting identical language from the Open Meeting Act's predecessor appears to assume, without deciding, that private citizens may bring suits to invalidate official actions that violate the open meetings rule.  See Jordan v. District of Columbia, 362 A.2d 114, 117-19 (D.C. 1976); see also Bernstein v. D.C. Bd. of Zoning Adjustment, 376 A.2d 816, 820 n.12 (D.C. 1977) (affirming Jordan); Dupont Circle Citizens Ass'n v. D.C. Bd. of Zoning Adjustment, 364 A.2d 610, 613-14 (D.C. 1976) (same).

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2. Will the court give priority to the pleading?

Not specifically addressed.

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3. Pro se possibility, advisability

Not specifically addressed.

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4. What issues will the court address?

Courts are authorized to fashion "appropriate remed[ies]" for violations of the Open Meetings Act.  D.C. Code Ann. § 2-579(d).

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a. Open the meeting

If the court finds that an official action was taken in violation of the Open Meetings Act, it may require the public body to open the meeting.  D.C. Code Ann. § 2-579(c)(1).

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b. Invalidate the decision

A court may declare action taken at a meeting to be void if it finds that the balance of equities compels that decision or that the violation of the Act was not harmless.  D.C. Code Ann. § 2-579(d).

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c. Order future meetings open

A court may order future meetings to be made public if it finds that a public body plans to hold a closed meeting in violation of the Open Meetings Act.  D.C. Code Ann. § 2-579(c)(2).

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5. Pleading format

Not specifically addressed.

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6. Time limit for filing suit

Not specifically addressed.

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7. What court?

The Open Government Office must file any enforcement lawsuits in D.C. Superior Court.  D.C. Code Ann. § 2-579(a).

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8. Judicial remedies available

A court may order "an appropriate remedy" if it finds that a resolution, rule, regulation, or other official action was taken, made, or enacted in violation of the Open Meetings Act.  Possible remedies include requiring additional forms of notice, postponing meetings, or declaring action taken at a meeting to be void.  D.C. Code Ann. § 2-579(d).  In addition, if the court finds that a public body plans to hold a closed meeting in violation of the Act, the court may enjoin the public body from closing the meeting or portion of the meeting; order that future meetings of the same kind be open to the public; or order that the record of the meeting be made public.  Id. § 2-579(c).

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9. Availability of court costs and attorney's fees

Not specifically addressed.

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10. Fines

If the court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the Act's provisions, it may impose a civil fine of not more than $250 per violation.  D.C. Code Ann. § 2-579(e).   

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11. Other penalties

Not specifically addressed.

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D. Appealing initial court decisions

Not specifically addressed.

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1. Appeal routes

Not specifically addressed.

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2. Time limits for filing appeals

Not specifically addressed.

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3. Contact of interested amici

Not specifically addressed.

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V. Asserting a right to comment

The Open Meetings Act does not address a right to comment during public meetings.

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A. Is there a right to participate in public meetings?

Not specifically addressed.

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B. Must a commenter give notice of intentions to comment?

Not specifically addressed.

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C. Can a public body limit comment?

Not specifically addressed.

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D. How can a participant assert rights to comment?

Not specifically addressed.

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E. Are there sanctions for unapproved comment?

Not specifically addressed.

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Appendix

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