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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. 
2

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 
3

§ 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. 
4

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 
5

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.”). 
6

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:
7

[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 
8

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 
9

(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.
10

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.
11

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 
12

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). 
13

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. 
14

§ 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 
15

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 
16

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, 
17

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. 
18

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.