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2012 FOIA Appeals


Pursuant to D.C. Official Code § 2-537 any person denied the right to inspect a public record of a public body (except a record of the Council), may petition the Mayor to review the public record to determine whether it may be withheld from public inspection. The determination must be made in writing with a statement of reasons within 10 business days. These written determinations are otherwise known as Appeal decisions. Below are the decisions for Fiscal Year 2012.   

Note: All files are available as PDFs

Agency/Case Number Summary Exemption/Issue Disposition
DHS 2012-1 Request for records regarding allegations of abuse or neglect regarding a former resident of an assisted living facility or staff of the assisted living facility. Agency reconsidered and released the records. Moot Moot
MPD 2012-2 Request for records relating to an arrest by MPD in Chinatown, including images and emails from a cell phone which was taken from a bystander and records relating to internal investigations. The search methodology was adequate. Adequate search Upheld in part and moot in part
DPR 2012-3 Request for records related to FY2008 Supplemental Appropriations Temporary Act of 2008. The claimed exemption does not apply because the agency is not a law enforcement agency.   D.C. Official Code § 2-534(a)(3(A)(i) and (B)(interference with enforcement proceedings deprivation of fair trial) Reversed and remanded
DHCF 2012-4 Request for records relating to DC Medicaid reimbursements to United Medical Center, a copy of the most recent change of ownership form submitted to the Centers for Medicaid & Medicaid Services filed on behalf of UMC by DC since January 2008. Agency employed a search methodology that was reasonably calculated to locate such records without any deficiency. Adequate search Upheld
DISB 2012-5 Request for documents relating to the foreclosure mediation process. The agency failed to show it made an adequate search. The attorney-client privilege does not apply if the attorney is not employed by the government as an attorney. A sufficient privacy interest in personal employee information, not outweighed by the public interest.   

Adequate search;

D.C. Official Code § 2-534(a)(4)(attorney-
client privilege);

D.C. Official Code § 2-534(a)(2)(privacy)                                  

Upheld in part and reversed and remanded in part
MPD 2012-6 Request for information for a named MPD officer, including disciplinary records such as citizen complaints and records of investigation regarding alleged misconduct. A Glomar response was upheld, as there is sufficient privacy interest in alleged misconduct by a government employee, not outweighed by the public interest.   D.C. Official Code § 2-534(a)(2) and (3)(C)(unwarranted invasion of personal privacy) Upheld
OCFO 2012-7 Request for records relating to outstanding or uncashed checks. Provided after filing of the Appeal. Failure to respond Moot
ANC 8B 2012-8 Request for records for a certain time period of minutes of ANC 8B meetings and invoices for monthly telephone use. Advisory Neighborhood Commissions are subject to DC FOIA and must provide responsive documents. Applicability for DC FOIA for ANCs Reversed and remanded
OANC 2012-9 Request for correspondence between the Executive Director of the OANC and the commissioners of ANC 5B. Records were provided after the filing of the Appeal. Failure to respond Moot
MPD 2012-10 Request for records of 103 specified homicide cases and PD-252s. Agency reconsidered its position and agreed to release the records.  Moot Moot
MPD 2012-11 Request for records regarding the acquisition and use by MPD of cell phone location data in ten illustrative categories of “MPD acquisition of location data and MPD communications with cell phone providers.  Adequate search; D.C Official Code § 2-534(a)(4)(attorney client privilege); D.C. Official Code § 2-534(a)(3)(E)(Disclose investigative techniques and procedures not generally known outside the government) Upheld in part, is moot in part, and is reversed in part.
OIG 2012-12 Request for records submitted to OIG in connection with an investigation relating to termination from the Department of Human Resources. The interference with enforcement proceedings was established because disclosure would reveal the nature, scope, and direction of the investigation.   D.C. Official Code § 2-534(a)(3)(interference with enforcement proceedings) Upheld
OCME 2012-13 Request for records with respect to an unidentified decedent and for processing two decedents. There is an insufficient privacy interest, here of the family members. There is a sufficient privacy interest with respect to inquiries regarding errors in employee processing of bodies, not outweighed by the public interest. DC Official Code § 2-534(a)(2) (privacy) Upheld in part and reversed and remanded in part.  
MPD 2012-14 Request for records related to 3 separate incidents that resulted in each case in a death. Appellant withdrew the Appeal when prior response of MPD re-transmitted. Withdrew appeal Appeal withdrawn
DDOT 2012-15 Request for records regarding any Open Zoning Violations or any Planned Roads Projects that might require Right of Way Acquisition of 818 Southern Ave., SE. Documents that the government receives or generates before it completes the process of awarding a contract are privilege. D.C. Official Code § 2-534(a)(4)(contraction privilege) Upheld
DOH 2012-16 Request for records that relate to or are an incident report. The search was not adequate because the cutoff date should be the date of the search. Adequate search Upheld in part, moot in part, and reversed and remanded in part
OSSE 2012-17 Request for records regarding named entity correctly redacted information was found to be confidential communications from clients to their attorneys made for the purpose of securing legal advice or services. D.C. Official Code § 2-534(a)(4) (attorney-client privilege) Upheld
OSSE 2012-18 Request for erasure analysis for the 2011 DC Comprehensive Assessment System test results and all correspondence between OSSE and local education agencies regarding the erasure analysis. Deliberative process privilege does not apply to number of erasures and erasure rates, which are factual in nature, but does apply to the analysis thereof.  D.C. Official Code § 2-534(a)(4) (deliberative process privilege) Upheld in part and reversed and remanded in part.
MPD 2012-19 Withdrawn Withdrawn Withdrawn
WASA 2012-20 Request for records regarding any water stoppage by WASA between certain dates and a certain location. Appellant did not receive agency notice that records were available. Moot Moot
DOC 2012-21 Request records including medical records, incident reports, disciplinary reports, internal investigations, and institutional file, from a certain date relating to a named inmate. The agency did not conduct an adequate search. Adequate search
Reversed and remanded
DOES 2012-22 Request for records relating to the processing of unemployment claim. The search was adequate as the agency made a reasonable determination as to the location of such records and made a search for the records in accordance with such determination. Adequate search Upheld
DCRA 2012-23 Request the articles of incorporation and the bylaws of the DC Children & Youth Investment Trust Corporation. Agency provided responsive records after the filing of the Appeal. Moot Moot
DDOT 2012-24 Request for all responses, other than of United Streetcar, LLC, to contract solicitation for streetcars. Documents that the government receives or generates before it completes the process of awarding a contract are privilege. Here, the contracting process still ongoing.
D.C. Official Code § 2-534(a)(4)(contractory privilege)
Upheld
DDOE 2012-25 Request for all records concerning communications with the US EPA regarding contamination at certain Pepco facilities. Agency handwritten notes of inter-agency communications were exempt from disclosure fell under both work-product privilege and the deliberative process privilege. D.C. Official Code § 2-534(a)(4)(privilege)    Upheld
MPD 2012-26 Request for records relating to the establishment and operation of prostitution-free zones. The search was not adequate because not all of the likely locations were searched. Fee disputes are not under the jurisdiction of the Mayor. Adequate search Upheld and moot in part
DHCD 2012-27 Request for records regarding all lobbying activities by the Apartment and Office Building Association of Metropolitan Washington with respect to DHCD. The Agency was ordered to complete its search and provide responsive records. Failure to respond Remanded
MPD 2012-28 Request for records regarding an assault. The agency’s search was adequate as it identified the likely location of records and provided responsive records from the location. Adequate search Upheld
OCFO 2012-29 Request for records related to specified organizations, individuals, or legislation. The agency must search for records created and/or maintained by its employees even if such records are maintained on site of, and related to, another agency. Adequate search Reversed and remanded
DHCA 2012-30 Request for all records that are data or analysis for the last two completed fiscal years, 2010 and 2011, and the partial year of 2012, concerning DCHA barring of individuals from its property. The search was adequate where the agency made reasonable determinations as the location of records requested and made, caused to be made, searches of record. Adequate search Upheld
WASA 2012-31 Request for records regarding any water stoppage by WASA in the Southwest quadrant of DC. The agency failed to establish that there is a sufficient privacy interest as such interest only applies to individuals.   DC Official Code § 2-534(a)(2)(privacy) Reversed and remanded
MPD 2012-32 Request copies of the “original notes” made by a named MPD detective regarding a criminal incident.  The search was adequate where the agency made a reasonable determination as to the location of records requested the file maintained and searched for and produced the responsive records.   Adequate search Upheld
DOC 2012-33 Request for the Appellant’s DC Jail Housing Unit records (a first party request). The privacy exemption does not apply to a requester’s own records.    D.C. Official Code § 2-534(a)(2)(privacy) Remanded
OEA 2012-34 Request documentation supporting, and answers to questions relating to, the decision of an administrative law judge. Appellant did not make a proper request because an agency is only required to provide records, not to substantiate the correctness or reasoning of an agency decision.     A proper request Upheld
DOES 2012-35 Request for records associated with Appellant’s social security number or certain married names which she set forth.  The agency did not establish the adequacy of its search. Adequate search Remanded
DCPS and OCFO 2012-36 Request identical records from both DCPS and OCFO concerning the budget estimates for DCPS for Fiscal Year 2013. After the filing of the Appeal, the agencies provided a hyperlink to the page on the website where the records are located. Failure to respond Moot
DCPS 2012-37 Request for all barring notices served from 2007 to present. There was a sufficient privacy interest in identity of individuals subject to civil sanction of barring orders not outweighed by the public interest. D.C. Official Code § 2-534(a)(3)(C)(privacy) Upheld
DYRS 2012-38 Request records in eleven categories relating to certain named contract providers, which categories include budgets, youth outcomes, contract reviews, and certain performance deficiencies. Most records were juvenile social records exempt by statute. There is a privacy interest in allegations of wrongdoing in an investigation undertaken by the employer-contractor, not outweighed by the public interest in disclosure. D.C. Official Code § 2-534(a)(2),(3)(privacy) and (6) (statutory exemption) Moot in part, upheld in part, and is reversed in part.
DCPS 2012-39 Request for records concerning the budget estimates for DCPS for Fiscal Year 2013. The search was not adequate as the hyperlink was only on the individual school budgets and did not have “data on central office and other expenditures” as requested.     Adequate search Reversed and remanded
WCSA 2012-40 Request for access to a surveillance video. The declared exemption does not apply because WCSA is not a law enforcement agency. D.C. Official § 2-534(a)(3)(A)(i)and (E) (investigatory records compiled for law enforcement purposes)   Reversed and remanded
MPD 2012-41 Request for records reflecting communications involving MPD, other state or municipal representatives, and/or private consultants regarding Occupy Wall Street movement and Occupy encampments in cities and countries. The deliberative process privilege applied as disclosure of predecisional, deliberative communications would have a chilling effect on agency communications. Agency ordered to review the records for purely factual material and for any post-decisional documents that would not be exempt by the deliberative process.
D.C. Official Code § 2-534(a)(4)(deliberative process privilege)
Moot in part, upheld in part, and reversed and remanded in part
DOC 2012-42 Request for records sought with respect to a named individual who was employed by DOC. The agency reconsidered its decision after the appeal was filed and provided responsive records. Moot Moot
EOM 2012-43 Request for records reflecting communications involving EOM, other state and municipal representatives, mayors, and/or private consultants regarding the Occupy Wall Street movement, the Occupy encampments, and the law enforcement or government response to the movement or encampments. Private email accounts of staff need not be searched in absence of knowledge that accounts were likely to contain responsive records. Privacy interest found in the names of individuals voicing concerns or offering view, outweighed by the public interest in disclosure.

Adequate search;

D.C. Official Code § 2-534(a)(2)(privacy)

D.C. Official Code § 2-534(a)(4)(deliberative process privilege)

Upheld in part, moot in part, and is reversed and remanded in part
MPD 2012-44 Request for 911 recordings or transcripts for any incidents that occurred at or in the area of a certain location. The agency provided the 911 transcript (with redactions) but withheld the 911 audio. There is a privacy interest that is not outweighed by public interest in disclosure. The agency does not at the time have the technology means as in 2012 to redact the entire tape. D.C. Official Code § 2-534(a)(2)(privacy) Upheld
MPD 2012-45 Request for records related to the MPD security detail for Mayor Vincent Gray between his inauguration. The agency provided the responsive records after filing of the Appeal. Moot Moot
DDOT 2012-46 Request all emails related to the proposed Wal-Mart developments. Coordinated inter-agency comments under the Large Tract Review qualified under the deliberative process privilege, but emails of attorney do not qualify as intra-agency communications subject to the deliberative process privilege. However, non-deliberative material must be disclosed where it is not inextricably intertwined with the deliberative portions of a document.  D.C. Official Code § 2-534(a)(4)(deliberative process privilege) Upheld in part and reversed and remanded in part.
DOH 2012-47 Request for records related to the medical marijuana panel, panel’s evaluation of applications, the scores awarded by the panel as a whole, and all documents relied on by the panel or individual members of the panel. The evaluation of applicants for licenses for marijuana cultivation centers are for the purposes of making recommendations to the Director, who makes the final decision, therefore, subject to the deliberative process privilege. Redacted sample scoring sheet should be provided. The request was stated with sufficient particularity and agency must complete the search.  D.C. Official Code § 2-534(a)(4)(deliberative process privilege) Upheld in part and reversed and remanded in part.
CCA/DOC/ARA 2012-48 Request for records regarding food service in the DOC facility operated by a contractor CCA. DOC provided all of the responsive records but CCA did not produce any of the required records and did not illustrate that a search was made. Thus, CCA must conduct an adequate search and produce responsive records. Adequate search Reversed and remanded
DOH 2012-49 Request for records obtained concerning any and all inspections or observations of elephants brought into DC by circus performances in DC. The notes and observation of an agency employee in anticipation of regulatory action are exempt under the deliberative process privilege. Factual material was based on observation and judgment and also subject to the privilege.   D.C. Official Code § 2-534(a)(4)(deliberative process privilege) Upheld
DPR 2012-50 Request for records related to youth and gang initiative. Only emails written by an attorney where there is an attorney-client relationship or made for the purpose of securing or providing legal advice qualify under attorney-client privilege. Other emails which were not deliberative or represented routine matters were ordered to be disclosed. D.C. Official Code § 2-534(a)(4)(deliberative process privilege);  (attorney-client privilege) Upheld in part and reversed and remanded.
DDOT 2012-51 Request for correspondence between DDOT and contractor relating to back pay owed to its workers on the 11th Street Bridge project in Washington, DC. None of the documents withheld were responsive. D.C. Official Code § 2-534(a)(4) (attorney-client privilege) Upheld
DDOT 2012-52 Request for records related to the planned Rhode Island Avenue pedestrian bridge. While deliberative process privilege does not apply, documents which the government receives or generates before it completes the process of awarding a contract are privileged. D.C. Official Code § 2-534(a)(4)(deliberative process privilege) Upheld
DOH 2012-53 Request the entirety of the administrative record for records of all applications for marijuana dispensary cultivation center registrations related to six-member medical marijuana panel’s evaluation of such applications. The evaluation of applicants for licenses are for the purposes of making recommendations to the Director, who makes the final decision, therefore, the evaluations are subject to the deliberative process privilege. Correspondence with the OAG containing narrow, direct requests for legal advice which is exempt under attorney-client privilege. The burden of review and production of the requested records was not unduly burdensome.

D.C. Official Code § 2-534(a)(4)(deliberative process privilege);

D.C. Official Code § 2-534(a)(1)(Trade secrets and commercial or financial information);
and

D.C Official Code § 2-534(a)(4)(attorney client privilege)

Upheld in part and reversed and remanded in part
DOC 2012-54 Withdrawn Adequate search Reversed and remanded
WASA 2012-55 Request records relating to liens which WASA placed on the real property of District Homeowners from 2008 through 2011. WASA established that it does not maintain the responsive records.  

D.C. Official Code § 2-534(a)(2)(privacy);

Adequate search

Upheld
DCPS 2012-56 Request for records related to the use of restraints in certain DCPS Schools. The agency failed to search its email database, but search was otherwise adequate.      

Adequate search

 

 

Upheld and reversed and remanded in part
OPC 2012-57 Request for records of the OPC investigation with respect to Appellant’s complaint about MPD search of her apartment. The attorney-client privilege does not apply if the attorney is not employed by the government as an attorney. The Investigative Report may be redacted to protect the identity of the investigator, witnesses, and employees. An affidavit supporting a search warrant application was not exempt in its entirety, but could be redacted to protect identity of a witness and prevent disclosure of one investigative technique. 

D.C. Official Code § 2-534(a)(4)(deliberative process privilege);

D.C. Official Code § 2-534(a)(4) (attorney-client privilege);

D.C. Official Code § 2-534(a)(2)(privacy);

D.C. Official Code § 2-534(a)(3)(D)(identity of a confidential source and the information supplied by the source);

D.C. Official Code § 2-534(a)(3)(E)(Investigative Techniques and procedures)

Upheld and reversed and remanded in part
DCRA 2012-58 Request for zoning report that concluded medical marijuana cultivation centers are equivalent to “light manufacturing” or “manufacturing” uses. The handwritten meeting notes which were withheld were predecisional and deliberative and exempt under the deliberative process privilege. D.C. Official Code § 2-534(a)(4)(deliberative process privilege) Upheld
DOC 2012-59 Request a statement of work incorporated by reference in an intergovernmental agreement between DOC and Bureau of Prisons (“BOP”). Document was released after consultation with BOP. Moot Moot
DGS 2012-60 Request for a copy of the winning bid in response to request for offers to lease space of the operation of automated teller machines. The Appeal does not state a challenge under DC FOIA because it seeks a reconsideration of the contract award.

D.C. Official Code § 2-534(a)(2)(privacy);

No jurisdiction

Dismissed
DOES 2012-61 Request for records associated with employer of Appellant. DOES made a reasonable determination as to the location of such records and made a search for the records in accordance with such determination. Adequate search Upheld
DGS 2012-62 Withdrawn Withdrawn Withdrawn
DOH 2012-63 Request for records pertaining to the provisional score or rank of all applications scored for medical marijuana dispensary registrations. The withheld records were exempt under the deliberate process privilege for reasons stated in Appeal 2012-47 and 2012-53.
D.C. Official Code § 2-534(a)(4)(deliberative process privilege)
Upheld
MPD 2012-64 Request for records that concerning the student leases of property located in a certain area. Agency has no duty either to answer questions unrelated to document requests or to create documents. Proper request Upheld
MPD 2012-65 Request for records compiled by MPD related to the production and or distribution of pornography in a certain zip code. The search was adequate because the agency explained where they searched and made a reasonable determinations as to location of the records and made a search in accordance with such determination. Adequate search Upheld
MPD 2012-66 Request for a photograph of an officer. There is a sufficient privacy interest in a photograph identifying the employee, not outweighed by the public interest in disclosure. D.C. Official Code § 2-534(a)(2)(privacy) Upheld
MPD 2012-67 Request for homicide log book information, regarding a named individual in connection with the murder of another named individual and the prosecution of Appellant. The search was adequate where the agency reviewed the log book, no responsive records were found, and the request was limited to the log book. Adequate search Upheld
OCFO 2012-68 Request for a list of vendors from certain testimony of the Chief Financial Officer. Accounts payable information in electronic books and records can be produced without unreasonable effort and must be provided. List referred to in testimony was created to provide legal advice and in anticipation of litigation and the attorney-client privilege and work product privilege applied. D.C. Official Code § 2-534(a)(4)(Attorney-client) Upheld in part and reversed and remanded in part
DYRS 2012-69 Request for name, compensation information, and date of hire for all employees with a title of Medical Officer, Dental Officer, Podiatrist, or similar title. After receiving the Appeal the agency provided the requested records. Moot Moot
OHR 2012-70 Request for records relating to the investigation regarding his complaint to OHR. Records were provided. Moot Moot
DCRA 2012-71 Request for records regarding a complaint filed with DCRA with respect to a named certified public accountant. Whether or not the Appellant already has the information, under FOIA the agency must provide requested information. There is a privacy interest under investigatory records related to allegations of wrongdoing by a private individual, not outweighed by the public interest is disclosure. D.C. Official Code § 2-534(a)(3)(C)(privacy); Upheld in part, moot in part, and is revised in part.
MPD 2012-72 Request for records regarding a specified incident. An agency has no duty either to answer questions unrelated to document requests or to create documents. Proper request Upheld
DCPS 2012-73 Request for spreadsheet with email addresses for all public school K-12 principals in DC. Agency provided hyperlink to webpage which is a sufficient response because agency is not required to produce records when information is publicly accessible via the website or the Federal Register. Response provided Upheld
MPD 2012-74 Request for names of all persons who are known to MPD to have been present at a house and lot at a certain location and the names of the people, if any, who have been charged. The request was for names not for documents which is an improper request under FOIA. Further, the information requested was subject to privacy interest and disclosing information would not contribute anything to public understanding of operations or activities of the government or the performance of MPD. 

Failure to provide records

D.C. Official Code § 2-534(a)(2)(privacy)

Upheld
OCFO 2012-75 Request for resumes, job applications, performance reviews and financial disclosures for certain named OCFO employees. There is an insufficient privacy interest in the qualifications of a government employee, but there is a sufficient interest in personal identifying information thereon and in performance reviews and financial disclosures, not outweighed by the public interest in disclosure. D.C. Official Code § 2-534(a)(3)(C)(privacy) Upheld in part and is reversed and remanded in part
DOC 2012-76 Request for the full names, start and end dates, ending salaries, and ending position titles for any and all staff member who resigned/quit or retired from the Department of Corrections from a certain date. There is a sufficient privacy interest in the identities of former employees, who may be subject to further contact and harassment, not outweigh the public interest in disclosure.  
D.C. Official Code § 2-534(a)(2)(privacy)
Upheld
DDOT 2012-77 Request for records in connection with a referenced tree canopy study by the Urban Forestry Administration.  The agency established that it was in possession of the requested records. Adequate search Upheld
MPD 2012-78 Request for records relating to the Appellant, her daughter, and the biological father. Agency shall respond to Appellant. Failure to respond Remand
MPD 2012-79 Request for records for the three named individuals, including their applications for appointment as special police officers. There is a sufficient privacy interest in the information in applications, not outweighed by the privacy interest in disclosure.  D.C. Official Code § 2-534(a)(2)(privacy) Upheld
DCPS 2012-80 Request for a report to DCPS by a named individual and perhaps others that analyzed the DC CAS test results for the school year 2007-2008. The search was adequate because the agencies identified the likely location of the records and search the relevant file types.     Adequate search Upheld