DuBose v. Dist. of Columbia

301 A.3d 726

Tomell DUBOSE, D.D.S., Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 19-CV-1239

District of Columbia Court of Appeals.

Argued November 30, 2021

Decided September 14, 2023

Anthony M. Rachal III, Washington, DC, for appellant.

Richard S. Love, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia at the time the brief was filed, Loren L. AliKhan, Solicitor General at the time the brief was filed, Caroline S. Van Zile, Principal Deputy Solicitor General at the time the brief was filed, and Carl J. Schifferle, Deputy Solicitor General, were on the brief for appellees.

Before Blackburne-Rigsby, Chief Judge, McLeese, Associate Judge, and Thompson, Senior Judge. ^*

McLeese, Associate Judge:

Appellant Tomell DuBose, D.D.S., seeks review of an order denying him relief under the District of Columbia Freedom of Information Act, D.C. Code § 2-531 et seq. (D.C. FOIA). (Dr. DuBose's name is spelled various ways in the record, but we use the spelling adopted by both parties in this court.) We affirm in part, vacate in part, and remand the case for further proceedings.

I. Factual and Procedural Background

Certain basic facts appear to be undisputed. In 2017, Dr. DuBose, through counsel, requested records from the District of Columbia Board of Dentistry, a component of the District of Columbia Department of Health (DOH). Dr. DuBose requested copies of all decisions of the Board rendered against licensed D.C. dentists, including settlements and consent orders, since 2010; a list of experts hired by the Board in connection with decisions issued since 2010; all decisions by the current members of the Board since their appointment; all complaints against D.C. dentists settled confidentially or dismissed since 2010; the resumes of the current Board members; and all appeals of the Board's decisions since 2010. Dr. DuBose also requested a waiver of any fees associated with the request, asserting that disclosure of the requested information was in the public interest. See D.C. Code § 2-532(b) ("Documents may be furnished without charge ... where a public body determines that waiver ... of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public.").

DOH acknowledged receipt of Dr. DuBose's request but did not respond substantively to the request within the time period specified by statute. See D.C. Code § 2-532(c)(1) (15-day time limit to respond to D.C. FOIA requests). DOH eventually responded several months later, declining to produce the requested information unless Dr. DuBose provided an advance payment of $9,000, which DOH estimated would be the cost of responding to the request, based on a projected 250 hours of search and compilation time and an additional 50 hours for review and redaction. DOH also declined to waive the fee, concluding that Dr. DuBose's request was not in the public interest.

Dr. DuBose challenged DOH's decisions in Superior Court, suing the District of Columbia, the Board, and DOH. The trial court dismissed the Board and DOH from the suit as non sui juris —entities within the District government not capable of being sued in their own names—leaving the District as the only defendant.

The District argued that its denial of the requested fee waiver was not judicially reviewable. The trial court ruled for the District on that point. Dr. DuBose also contested the reasonableness of the amount of the demanded fee. The trial court granted summary judgment to the District on that issue.

II. Analysis

A. General Legal Principles

D.C. FOIA "embodies a strong policy favoring disclosure of information about governmental affairs and the acts of public officials." Barry v. Washington Post Co. , 529 A.2d 319, 321 (D.C. 1987) (per curiam). Under D.C. FOIA, "[a]ny person has the right to inspect, and ... copy any public record of a public body," except as expressly provided. D.C. Code § 2-532(a). Agencies may charge a reasonable fee in connection with a request and may require advance payment of fees that will exceed $250. D.C. Code § 2-532(b), (b-1), (b-3).

Unless the agency gives notice of an extension, the agency is required to respond to a FOIA request within 15 days, by either providing access to the requested documents or explaining the agency's reasons for deciding not to do so. D.C. Code § 2-532(c)(1), (d)(1).

We review de novo a trial court's order granting summary judgment, affirming only if there is no genuine issue of material fact when viewing the record in the light most favorable to the non-moving party. Fraternal Ord. of Police, Metro. Lab. Comm. v. District of Columbia , 82 A.3d 803, 813 (D.C. 2014).

Given D.C. FOIA's broad policy favoring disclosure,

we construe the Act with the view toward expansion of public access and the minimization of costs and time delays to persons requesting information. Therefore, the provisions of the Act giving citizens the right of access are to be generously construed, while the statutory exemptions from disclosure are to be narrowly construed, with ambiguities resolved in favor of disclosure.

Fraternal Ord. of Police , 82 A.3d at 813 (brackets, citations, and internal quotation marks omitted); see D.C. Code § 2-531 ("[P]rovisions of [D.C. FOIA] shall be construed with the view toward expansion of public access and minimization of costs and time delays to persons requesting information.").

B. Dismissal of Board and DOH

The trial court ruled that the Board and DOH could not be sued in their own names. Dr. DuBose objects to that ruling, but he provides no legal argument to support the objection. The issue therefore has not been properly presented for our review. See, e.g. , In re Klayman , 282 A.3d 584, 596 (D.C. 2022) (per curiam) (declining to address issue as not adequately presented, where respondent "argue[d] in passing that the Board's ruling on this issue was incorrect, [but did] not address the Board's reasoning or provide a specific argument as to why the Board's ruling was incorrect under applicable principles of law"). We therefore affirm the trial court's dismissal of Dr. DuBose's suit against the Board and DOH.

C. Untimeliness

Dr. DuBose argues that the District's failure to respond in a timely manner to the request precludes the District from requiring Dr. DuBose to pay a fee to obtain the requested information. We disagree.

D.C. FOIA expressly states the consequence of an agency's failure to respond to a request within the prescribed time period:

[a]ny failure on the part of a public body to comply with a [D.C. FOIA] request ... within the time provisions ... of this section shall be deemed a denial of the request, and the person making such request shall be deemed to have exhausted ... administrative remedies with respect to such request ....

D.C. Code § 2-532(e) ; see Fraternal Ord. of Police, Metro. Lab. Comm. v. District of Columbia , 79 A.3d 347, 363 (D.C. 2013) ("[T]he only consequence [of an agency's failure to timely respond] provided in [D.C.] FOIA for an agency's failure to comply with the Act's time provisions is that the request is deemed to have been denied and the requestor is deemed to have exhausted his [or her] administrative remedies" as a prerequisite to seeking judicial relief.).

We need not decide the broad question whether an agency's failure to respond in a timely manner to a D.C. FOIA request never has any consequence other than permitting the requester to file suit rather than continuing to wait for an untimely response. We hold more narrowly that an agency's failure to respond in a timely manner to a D.C. FOIA request does not preclude the agency from later demanding payment of reasonable costs associated with the request, at least where, as in this case, the agency responds to the request by demanding payment before the requestor files suit. We see no basis under D.C. FOIA for precluding an agency from demanding a fee in such circumstances.

As Dr. DuBose notes, the federal FOIA statute generally provides that "an agency shall not assess any search fees ... if the agency has failed to comply with any time limit under [ 5 U.S.C. § 552(a)(6) ]." 5 U.S.C. § 552(a)(4)(A)(viii)(I) ; see id. § 552(a)(4)(A)(viii)(II) (providing for exceptions). D.C. FOIA, however, contains no such provision. Although we generally look to federal FOIA in interpreting the provisions of D.C. FOIA, that principle does not apply "where the two acts differ," as here. Doe v. D.C. Metro. Police Dep't , 948 A.2d 1210, 1220 (D.C. 2008).

In fact, federal FOIA was originally interpreted to permit agencies to assess search fees even if they responded untimely to a FOIA request. See, e.g. , Pollack v. U.S. Dep't of Just. , 49 F.3d 115, 120 (4th Cir. 1995) (stating that court was unable to "find a provision which states that when an agency acts untimely, it is obliged to provide the requester with unlimited documentation free of charge"). In 2007, however, Congress amended FOIA to add the provision that Dr. Dubose relies upon. See Pub. L. No. 10-175 § 6, 121 Stat. 2526 (2007) (codified at 5 U.S.C. § 552(a)(4)(A)(viii) ); see also Stein v. U.S. Dep't of Just. , 197 F. Supp. 3d 115, 123 (D.D.C. 2016) ("[T]he reason the Fourth Circuit [in Pollack ] could not find a FOIA provision prohibiting agencies from charging fees for requests that had not been timely processed was because § 552(a)(4)(A)(viii) did not exist at the time Pollack was decided."). The 2007 amendment was intended "[t]o underscore Congress's belief in the importance of the statutory time limit" by "imposing consequences on federal agencies for missing the deadline." Shapiro v. U.S. Soc. Sec. Admin. , 525 F. Supp. 3d 528, 541 & n.7 (D. Vt. 2021) (emphasis and internal quotation marks omitted). D.C. FOIA has not been similarly amended, and we therefore interpret D.C. FOIA consistently with the way in which federal FOIA was understood before the 20...