FOIA Advice Concerning Proactive Release of Public Comments

A D.C. government agency contacted the Office of Open Government (OOG) for legal advice concerning its obligation to post public comments the agency receives on its website. OOG provided the confidential advice, which we are providing for the benefit of other agencies and the public. A redacted copy of the advice is provided as an attachment and a summary of the advice is below.


On March 1, 2023, I responded to your inquiry on how to comply with the District of Columbia Freedom of Information Act of 1976 (“D.C. FOIA"), when publishing public comment submissions to your proposed new website. D.C. Official Code § 2-536(a)(5), which is the proactive publishing requirement of the D.C. FOIA, requires among other things that “the following categories of information are specifically made public information, and do not require a written request for information … [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, 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.”

For both your current and planned, websites I advised that you must post relevant submissions pursuant to D.C. Official Code § 2-536(a)(5), which includes redacting from some submissions information that does not comply with D.C. Official Code § 2-536(a)(5) or contains personally identifiable information (“PII”). There is no statute excluding from D.C. FOIA the public comment correspondence you receive to publish on your website. Therefore, you must post proactively to your website the records that fall under D.C. Official Code §2-536(a)(5).

You must retain but do not have to publish proactively, correspondence that does not meet the requirements of D.C. Official Code §2-536(a)(5). The public may obtain this correspondence by submission of a D.C. FOIA request. I opined that you must also modify your current website language regarding policies on posting public and informal comments.