D.C. Transparency Watch: Is Councilmember Trayon White’s 2017 Traffic Stop Just His Own Business? The Washington Post Brings FOIA Suit to Find Out

UPDATE 1/10/19: D.C. Superior Court Judge Hiram Puig-Lugo declined Tueday (7) to dismiss the Post's case seeking police video a traffic stop of D.C. Councilmember Trayon White Sr. in 2017.  Attorneys for the District of Columbia asked that the case be tossed out, stressing White's privacy should be protected as the public had no valid interest in the video. (See discussion in original blog posting below.)

The court noted the privacy exemptions in the public records law prevail "only where a personal privacy interest is present and where that interest outweighs the public interest in disclosure" and disagreed with the District's view on both. The court said it was "difficult to see" and "dubious" there is any personal privacy interest in the details of Councilmember White's very public traffic stop. In contrast, "residents of the District of Columbia have a right to know, not just whether the Councilmember sought preferential treatment, but whether the complaints about MPD that he has raised over time manifested during the traffic stop on June 29, 2017." Beyond rejecting the District's request to throw the case out, the court's order does not spell out next steps in the case. The opinion is available here, as part of the court's online database.

UPDATE 1/13/19:  Washington City Paper's Loose Lips columnist Mitch Ryals reported in detail on the case Sunday (13), including some news. According to the paper, Councilmember White said via text, "I'm intrigued that the Wash Post is spending money on lawyers about this situation,"  but also "I see it's an agenda. D.C. should just go ahead and release the footage." Which raises the next question: will D.C. continue to fight for the privacy of someone who has abandoned it?   

 

A pending lawsuit set for a hearing next month raises questions of privacy and the public interest, the two values most often in conflict in public records disputes.

District of Columbia law says “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Does that include access to records of elected officials’ conduct away from the legislative hearing rooms of the John A. Wilson Building?  Like police, is a Councilmember “always on duty”?

In June of 2017, his first year in office, D.C. Councilmember Trayon White Sr. (D-Ward 8) was driving on 13th Street, N.W., late on a Thursday evening. He hadn’t turned on his headlights. Metropolitan Police Department (MPD) Officer Gregory Hill on Impaired Driver Enforcement duty that night noticed. In the stop that followed, White showed only a D.C. government work ID. He said his driver's license was in his other car, but a computer check showed the license had been suspended.

The Councilmember was arrested, processed at the First District station and released with notices of infraction for no lights and no permit. A criminal charge of operating after suspension was dropped in August 2017 (the record shows no reason).

All the above facts, laid out in the lawsuit, are already on the public record and can be read in the officer's sworn affidavit and other entries accessible on Superior Court computer terminals under case 2017-CTF-012116.

White is a long-time critic of District police, so no doubt reporters were interested to see and hear what else occurred in the incident between adversaries. The Washington Post in April 2018 made a request under the D.C. Freedom of Information Act for Officer Hill’s body-worn camera footage from the stop.

The MPD turned the Post down. The mayor’s office (which under the law decides appeals of agency FOIA decisions) upheld the denial, agreeing with the MPD that the Councilmember had a “strong privacy interest in not being associated with alleged criminal activity.”  The mayor's opinion also noted the public, in contrast, had little need for the video as no one had claimed “footage of Councilmember White would provide insight into the MPD’s or the Council’s performance.”

The Post suit in Superior Court, filed in September 2018, essentially argues that the MPD and the mayor's attorneys got the balance wrong –- that they mistakenly inflated the privacy interest and undervalued the public interest.

The Post lawsuit asks how can there be any expectation of privacy in a traffic stop on the street in plain view? Further, the lawsuit papers recount from public events how the Councilmember has in recent years sued the police for excessive force against him and published critiques of the police on social media. He even introduced legislation to “restrict the ability of the City to suspend drivers’ licenses” (the very subject of his own charge, the suit notes). And as a Council member he regularly votes on police budgets and law enforcement policy matters. Thus, as an active police critic he  “voluntarily has chosen to subject himself to public scrutiny” and “has placed his interactions with police in the public eye.” Surely, they seem to say, that diminishes his expectation of privacy when he encounters police anywhere?

Then the lawsuit argues that the government, for its second mistake, has wrongly downplayed the public interest, as though the press was simply “seeking some otherwise private record relating to a public official.”  Yet the facts of the stop and charge are, after all, already on the public record. 

The Post hints at what they think might be revealed on the video – and in their view the strong public interest in knowing whether White, “a lawmaker who now has budgetary and policy oversight over the MPD, may have attempted to take advantage of his position of authority—or whether he received any favorable treatment—during his stop and arrest.”

Thus, says the Post, releasing the body-cam record of what happened in the exchange that night will help in “understanding the relationship between Councilmember White and the MPD—representatives of two equal and independent branches of government—and evaluating the accusations each have made against the other and the potential for policing and policy-making to be shaped by those accusations and alleged misconduct.”

The Post argues this is just what the law has in mind in assuring access to records about affairs of government and official acts of officials and employees.

The D.C. Superior Court will decide whether it's a proper reading of the law that. as a Post court paper summarizes, a “strong public interest outweighs any modest privacy interest that may exist here.” 

The suit is WP Company LLC v. District of Columbia, No. 2018 CA 005576 B, pending before Judge Hiram E. Puig-Lugo. The first hearing date has been postponed several times but is now set for 9:30 on February 1, 2019, in Courtroom 317.