Dubose, DDS v. District of Columbia

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CV-1239

TOMELL DUBOSE, D.D.S., APPELLANT,

v.

DISTRICT OF COLUMBIA, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(2018-CA-000378-B)

(Hon. Heidi M. Pasichow, Trial Judge)

(Argued November 30, 2021 Decided September 14, 2023)

Anthony M. Rachal III 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. *

*

In May 2023, Associate Judge McLeese was substituted for Associate Judge

Beckwith. See Administrative Order 5-23 (August 4, 2023). Senior Judge

Thompson was serving as an Associate Judge at the time of argument. She began

her service as a Senior Judge in February 2022.

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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

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§ 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.

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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

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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.”).

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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:

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[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

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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

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(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 2007 amendment.

D. Prepayment of Demanded Fee

Dr. DuBose argues that the trial court erred in upholding the District’s demand

that Dr. DuBose prepay the demanded fee. We conclude that a remand is necessary

on that issue.

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1. Reviewability

Whether the District lawfully refused to produce the requested documents

based on Dr. DuBose’s failure to prepay the demanded fee touches on two distinct

issues: whether the amount of the fee demanded was reasonable and whether the

District erred by refusing to waive any fee. The District appears to challenge the

availability of judicial review with respect to both of those issues. We conclude that

both issues were properly reviewable in the Superior Court and in this court.

The District first argues that federal FOIA cases hold that a requester cannot

obtain judicial review of an agency’s response to a FOIA request if the requester

refuses to pay a demanded fee or fails to obtain a waiver of the fee. To the contrary,

in cases in which the requestor has refused to pay a fee but has otherwise exhausted

administrative remedies, federal courts have reviewed both the reasonableness of an

agency’s demanded fee and an agency’s refusal to grant a fee waiver. See, e.g., Nat’l

Sec. Couns. v. U.S. Dep’t of Just., 848 F.3d 467, 470-73 (D.C. Cir. 2017)

(reasonableness of demanded fee); Coleman v. Drug Enf’t Admin., 714 F.3d 816,

819-20 (4th Cir. 2013) (denial of waiver request). We see no reason for a different

approach under D.C. FOIA.

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The District’s brief does not present any clear argument that Dr. Dubose was

required to seek further internal administrative review before bringing the current

suit. See generally, e.g., Finch v. District of Columbia, 894 A.2d 419, 422 n.7 (D.C.

2006) (requirement of exhaustion of administrative remedies is not jurisdictional and

“could be waived or forfeited”). We therefore conclude that the issue of the

reasonableness of the amount of the demanded fee was properly subject to judicial

review in this case.

The trial court ruled that the District’s refusal to grant a fee waiver was

unreviewable, and the District defends that ruling. We hold to the contrary that

judicial review is available under D.C. FOIA if an agency refuses to produce

requested documents based on a demand for prepayment of fees and a determination

that waiver of the demanded fee is not in the public interest.

We first narrow the issue to be decided. The District contends that, under

D.C. FOIA, an agency has the discretionary authority to refuse to waive a fee even

if the agency has determined that a waiver would be in the public interest. The

District further suggests that an agency’s exercise of that discretionary authority is

unreviewable, because that determination would be committed to agency discretion

by law. We have no occasion to address those issues, however, because the District

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in this case denied a waiver on the ground that waiver would not be in the public

interest, not on the basis of a discretionary refusal to grant a waiver even though

waiver would be in the public interest.

We therefore view the issue before us, more narrowly, as whether judicial

review is available under D.C. FOIA if an agency fails to timely respond to a request

and then refuses to produce requested documents based on a demand for prepayment

of fees and a determination that waiver of the fee is not in the public interest. We

conclude that judicial review is available in those circumstances.

There is a “strong presumption favoring judicial review of agency action,”

which is overcome “[o]nly upon a showing of clear and convincing evidence of a

contrary legislative intent.” District of Columbia v. Sierra Club, 670 A.2d 354, 358

(D.C. 1996) (internal quotation marks omitted). We do not discern an intent to

completely preclude judicial review of an agency’s determination that a fee waiver

under D.C. FOIA would not be in the public interest. Rather, the theory that the

D.C. Council intended to preclude such review seems contrary to the Council’s

direction that “provisions of [D.C. FOIA] 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 § 2-531 (emphasis added).

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The presumption of reviewability may be rebutted where “the legislature

commits the challenged action entirely to agency discretion.” Tucci v. District of

Columbia, 956 A.2d 684, 690 (D.C. 2008) (emphasis added). That is a “very narrow

exception,” however, which applies “only in those rare instances where statutes are

drawn in such broad terms that in a given case there is no law to apply.” Sierra Club,

670 A.2d at 358 (internal quotation marks omitted). In our view, an agency’s

determination as to whether a waiver of fees would be in the public interest does not

fall within that narrow exception.

D.C. FOIA provides some guidance as to the nature of the public-interest

determination. See D.C. Code § 2-532(b) (fee waiver may be granted where agency

determines that waiver is “in the public interest because furnishing the information

can be considered as primarily benefiting the general public”). We conclude that the

public-interest standard under D.C. FOIA is not so broad and amorphous as to leave

reviewing courts with no law to apply. Cf. Keating v. Fed. Aviation Admin., 610

F.2d 611, 612 (9th Cir. 1979) (holding that “in the public interest” standard in statute

“provide[d] law to be applied . . . sufficient to permit judicial review”).

It is true, as the District points out, that federal FOIA explicitly provides for

judicial review of an agency’s refusal to waive FOIA fees. 5 U.S.C.

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§ 552(a)(4)(A)(vii). Although D.C. FOIA does not contain a corresponding express

provision, that silence does not in our view constitute “clear and convincing

evidence” of intent to bar such review in the circumstances of the present case.

Sierra Club, 670 A.2d at 358.

2. Merits of Refusal to Waive Fees

Because the trial court viewed the issue as unreviewable, the trial court did

not decide on the merits whether the District acted lawfully in refusing to grant a fee

waiver. We therefore remand the case for the trial court to address that issue in the

first instance. See generally, e.g., Jaiyeola v. District of Columbia, 40 A.3d 356,

372 (D.C. 2012) (although court has discretion to affirm grant of summary judgment

on alternative grounds not decided by trial court, court has “cautioned that it usually

will be neither prudent nor appropriate for this court” to do so) (internal quotation

marks omitted). Resolving that issue may require the trial court to address a number

of issues that the parties have raised in this court, including (1) the standard of review

courts should apply when evaluating an agency’s waiver determination; (2) who

bears the burden of proof on the question whether waiver would be in the public

interest; (3) what materials may properly be considered by the trial court in

reviewing an agency’s waiver determination; (4) Dr. DuBose’s claim that his request

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was in the public interest rather than for a commercial purpose; (5) Dr. DuBose’s

claim that the District’s refusal to waive fees, in whole or in part, in this case was

unreasonable in light of prior fee-waiver decisions by the Board, DOH, and other

District agencies; and (6) Dr. DuBose’s argument that the District’s denial of the

fee-waiver request was in bad faith. We express no views as to the proper resolution

of those issues.

3. Merits of Reasonableness of Fee Amount

The parties dispute numerous issues relating to the issue of the reasonableness

of the fee amount. Depending on the outcome of proceedings on remand, those

issues may or may not arise on remand. For example, if the trial court were to

conclude that the District acted unlawfully in refusing to grant a waiver, then the

question of the reasonableness of the demanded fee would be academic. Under the

circumstances, we decline to address the reasonableness of the fee amount at this

juncture. See, e.g., Jackson v. Condor Mgmt. Grp., Inc., 587 A.2d 222, 226 (D.C.

1991) (declining to consider issues that “may or may not arise again upon remand”).

We do, however, flag several issues that may warrant further consideration on

remand if the issue of reasonableness does arise, because the trial court has not yet

explicitly addressed them: (1) Dr. DuBose’s claim that the $9,000 fee amount is

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unreasonable because considerable portions of the requested records were easily

accessible to the agency and therefore did not require significant resources to search

for or reproduce; (2) Dr. DuBose’s claim that, because the District is separately

required to submit all Board orders and decisions to the “Federal National Data

Bank,” those records were already compiled and should have been easily accessible

to the agency, requiring minimal search or production costs; (3) Dr. DuBose’s

argument that no fee should be imposed for the location and reproduction of those

records in his request that were “specifically made public information” available

without request by D.C. Code § 2-536(a)(3), and must be made publicly available

either on the agency’s website or “by other electronic means” pursuant to D.C. Code

§ 2-536(b); (4) Dr. DuBose’s claim that the Board was required to provide him with

information that would permit Dr. DuBose to reduce the fee by narrowing the

requested categories of documents; and (5) Dr. DuBose’s argument that the District

acted in bad faith, by failing to timely respond to the request, misrepresenting what

was available on the Board’s website, and demanding an unreasonable fee amount.

4. Attorney’s Fees and Litigation Costs

Finally, Dr. DuBose argues that he is entitled to attorney’s fees and litigation

costs. Because we are remanding the case to the trial court for further proceedings,

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it is not yet clear whether Dr. DuBose will ultimately be a prevailing party. See D.C.

Code § 2-537(c) (“If a person seeking the right to inspect or a receive a copy of a

public record prevails in whole or in part in [a] suit, he or she may be awarded

reasonable attorney fees and other costs of litigation.”). An assessment of attorney’s

fees and costs would therefore be premature at this juncture. Cf. Featherson v. Educ.

Diagnostic Inst., Inc., 933 A.2d 335, 339 n.4 (D.C. 2007) (vacating ruling on

attorney’s fees where this court remanded case, because trial court’s ruling “that

appellant [was] not the prevailing party[,] and therefore, [was] not entitled to

attorney’s fees, [was] premature”). We therefore do not decide the issue of

attorney’s fees and litigation costs.

In sum, (1) we affirm the trial court’s ruling dismissing the Board and DOH;

(2) we uphold the trial court’s ruling that the untimeliness of the District’s response

to Dr. DuBose’s request did not entitle Dr. DuBose to a fee waiver as a matter of

law; and (3) we remand for the trial court to consider the merits of the District’s

denial of Dr. DuBose’s request for a public-interest fee waiver and for such other

proceedings as necessary.

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For the foregoing reasons, the judgment of the Superior Court is affirmed in

part and vacated in part, and the case is remanded for further proceedings.

So ordered.