D.C. Mun. Regs. r. 1-412

Current through Register Vol. 71, No. 24, June 14, 2024

Rule 1-412 - REVIEW OF DENIALS

412.1

When a request for records has been denied in whole or in part by an agency, the requester may appeal the denial to the Mayor or may seek immediate judicial review of the denial in the D.C. Superior Court.

412.2

Unless the Mayor otherwise directs, the Secretary shall act on behalf of the Mayor on all appeals under this section, except that in the case of an initial denial by the Secretary, the Mayor or the designee thereof shall act on the appeal. If the Mayor directs that a person other than the Secretary act on the Mayor's behalf on appeals under this section, references in this chapter to the "Secretary" shall be deemed to refer instead to the person designated by the Mayor.

412.3

An appeal to the Mayor shall be in writing. The appeal letter shall include "Freedom of Information Act Appeal" or "FOIA Appeal" in the subject line of the letter as well as marked on the outside of the envelope. The appeal shall be mailed to:

Mayor's Correspondence Unit

FOIA Appeal

1350 Pennsylvania Ave, NW

Suite 221

Washington, D.C. 20004

The requester shall forward a copy of the appeal to the Freedom of Information Officer, or agency head in the absence of a designated Freedom of Information Officer, of the agency whose denial is the subject of the appeal.

412.4

An appeal to the Mayor shall be in writing and shall include:

(a) Statement of the circumstances, reasons or arguments advanced in support of disclosure;

(b) Copy of the original request, if any;

(c) Copy of any written denial issued under § 407.2; and

(d) Daytime telephone number, email address or mailing address for the requester.

412.5

Within five (5) days (excluding Saturdays, Sundays, or legal public holidays) of receipt of its copy of the FOIA appeal the agency shall file a response with the Secretary. The response shall include the following documents:

(a) The agency's justification for its decision not to grant review of records as requested, to the extent not provided in the agency's letter of denial to the requester;

(b) Any additional documentation as may be necessary and appropriate to justify the agency's decision, such as a Vaughn index of documents withheld, an affidavit or declaration of a knowledgeable official or employee testifying to the decision to withhold documents, or such other similar proof as the circumstances may warrant; and

(c) A copy of the public record or records in dispute on the appeal; provided, that if the public record or records are voluminous, the agency may provide a representative sample; and provided further, that if the public record contains personal, sensitive, or confidential information, the public body may redact such information from the copy furnished the Secretary in a manner that makes clear that the agency has made redactions.

412.6

An agency may request additional time to file documentation required by § 412.5 by filing a written or e-mailed request to the Secretary with a copy to the requester. The request for additional time must be filed within five (5) days (excluding Saturdays, Sundays, and legal public holidays) of receipt of the appeal. The Secretary will respond to the request for additional time with a copy to the requester. An agency that does not file the information required by § 412.5 within the time provided herein or such further time as the Secretary may provide in response to written or e-mail request shall be deemed to have waived its right to respond to the appeal.

412.7

A written determination with respect to an appeal shall be made within ten (10) days (excluding Saturdays, Sundays and legal public holidays) of the filing of the appeal.

412.8

If the records, or any segregable part thereof, are found to have been improperly withheld, the Secretary shall order the agency to make them available. If the agency continues to withhold the records, the requester may seek enforcement of the order in the Superior Court.

412.9

A denial in whole or in part of a request on appeal shall set forth the exemption relied upon, a brief explanation consistent with the purpose of the exemption of how the exemption applies to the records withheld, and the reasons for asserting it. The denial shall also inform the requester of the right of judicial review.

412.10

If no determination has been dispatched at the end of the ten-day period, the requester may deem his or her appeal denied, and exercise his or her right to judicial review of the denial.

D.C. Mun. Regs. r. 1-412

Final Rulemaking published at 24 DCR 6211, 6217-18 (January 27, 1978); as amended by Final Rulemaking published at 52 DCR 52, 59 (January 7, 2005)