[Note: This Post Was Updated 5/25 Evening to Include Clarification about Use of Funds]
The famous Eastern Market bake sale held to pay for Capitol Hill ANC commissioner Denise Rucker Krepp’s FOIA request for data about prosecution rates in DC raised nearly $2,000 supposedly to cover fees to process her request. What Krepp or the numerous news articles covering the bake sale neglected to mention was that these FOIA fees never existed in the first place, according to a letter from the Department of Justice. The correspondence, sent to Krepp before December’s bake sale (which garnered its own social media hashtag #FOIAcakes), was attached to Krepp’s lawsuit filed against DOJ last week. Krepp, concerned about crime in her neighborhood, is challenging DOJ’s failure to find any responsive records; the agency said it didn’t have the records in the form requested.
Krepp has characterized DOJ’s letter as including an unwarranted assessment of FOIA processing fees, as well as a rejection of her request for a fee waiver. Media reports have similarly repeatedly referred to the government charging a $1000 FOIA processing fee for her request. None of which is true. Instead, DOJ simply explained (see excerpt below) that there “may be certain costs associated” with Krepp’s FOIA request, in addition to the standard fee schedule for all FOIA requests received by DOJ. The agency also generally suggested that a modification of the request could reduce potential fees and that it would “notify [Krepp] in writing at a later date” if it determines that fees will be more than $25. Although DOJ did not acknowledge Krepp’s fee waiver in the letter, her waiver request was not rejected.
In other words, DOJ never said that Krepp’s request would incur any fees at all, let alone $1,000. In fact, the $1,000 figure was completely made up by her based on “her own experience managing FOIA requests in a former job,” according to one report. Krepp, who previously served as Chief Counsel for the U.S Maritime Administration, seems to have had what charitably may be referred to as an issue with reading comprehension.
Barred in DC privately reached out to Krepp after she went public with the $1000 FOIA fee and suggested that she partner with a local blog, which can get reduced or waived FOIA processing fees, and warned her that she might not get any information based on the wording of her request. That didn’t seem to make a difference, as we never received a response and the fundraising bake sale for the fictitious FOIA processing fees took place.
In the end, the $1,867 raised from #FOIAcakes, which includes money from a raffle for basketball tickets donated by Events DC and $350 from Dangerously Delicious Pies, never went to pay FOIA processing fees at all; which makes sense because DOJ never said there would be fees. Krepp said she would donate the excess money to either “a local organization that advocates for transparency in local government” or to “charity, such as groups that help crime victims.” None of the various articles in the local media have identified the organization or charity which received the funds raised from Krepp’s neighbors earmarked for the non-existent FOIA processing fees. [5/25 PM Update:] Apparently the funds are being retained for certain litigation costs and will be donated if funds remain.
Krepp filed her lawsuit despite the fact that DOJ even suggested to her when ruling on her appeal that although DOJ didn’t keep the records in the form she requested, she “might wish to make a new request to [DOJ] for prosecutions and convictions by crime and or by [police service area or] district” (see excerpt below). Instead of processing a new request, DOJ will need to divert resources to answer this litigation instead of processing requests by others. Barred in DC has made a FOIA request for the same data as Krepp is seeking following DOJ’s suggestion; we’ll see who gets it first (new hashtag: #FOIARace).
Krepp is represented in her lawsuit by Jay Williams (a former Capitol Hill ANC Commissioner), along with a partner and other attorneys from the law firm BuckleySandler. Presumably this representation is pro bono; if not, will there be another bake sale? #FOIAcakestastefunny
In the interests of some disclosure, a significant part of Barred in DC’s job at the federal agency he works at involves processing FOIA requests, so the results of any litigation could theoretically affect the work he does. The views stated above are, of course, Barred in DC’s own personal views and do not constitute the views of the U.S. Government.