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Court of Appeals Decides Latest Public Records Case for D.C. Police Union and Against Police Department: But Also Scores Parties’ “FOIA Feuds,” “Gamesmanship” and “Course of Pitched Warfare”

dcogcadmin | June 2, 2016

The D.C. public records law requires agencies to respond when they get a “request reasonably describing any public record.” 

But the text begs the questions – what’s reasonable? And does an agency get to decide, on its own, whether or not to process a broad request it considers vague and which would likely yield thousands of pages of responsive records?

The D.C. Court of Appeals in an opinion issued Thursday (26) held that no law allows agency staff to decide that a request is too vague to process on a theory of “void for volume” and also while the police did some looking, it wasn’t enough.

The opinion came in another in a long series of court cases by the police officers’ union, the Fraternal Order of Police (FOP) challenging late or incomplete responses of the Metropolitan Police Department (MPD) to its records requests.

The latest case concerned a 2010 request for four years of emails (2006 to 2010) to or from MPD and Mark Tuohey (then an attorney in private practice) or Eric Holder (in private practice also, then in 2009 appointed Attorney General of the United States) and emails referring to the D.C. Police Foundation, a private nonprofit.

The Court of Appeals rejected the District’s argument (which failed in the lower court but was renewed on appeal) that it need not have done any search at all as the request was so broad. The court found the law gave no such veto power to the agency but on the contrary, required it to help the requester clarify a request to be manageable.

And the court saw nothing troublesome in the FOP request—“it reasonably described what FOP sought…We fail to see why MPD or OCTO struggled to discern what was meant by this request.” Nor did the court find any support in law for an agency determining in advance that a request would identify too many records.

As to the search the agency did do (in the email accounts of only eight MPD officials), the court said “the District failed to explain, much less justify, this limitation” and overturned the lower court decision that what MPD had belatedly done to locate first 1,400 pages, and later 16,703 more, was, though late, legally adequate. 

The appeals court criticized the lawyering for the District, complaining that, after years of litigation, “on this record we have no idea why searching all of MPD’s email accounts was infeasible” or why MPD chose only those eight accounts to look at.  (The court offered the olive branch that when the matter returns to the lower court, a better-argued case might show both MPD and OCTO made reasonable searches.)

The appeals court returned the case to Superior Court for a second look at the adequacy of the search and other issues, and offered highly unusual parting words characterizing the course of conduct of the adversaries. 

The court noted the present opinion was the eighth resulting from the “course of pitched warfare in the courts” between the police department and union—the result, wrote the court, of “an apparent inability or unwillingness by both parties to communicate effectively to achieve the objectives animating” the public records statute, the D.C. Freedom of Information Act (FOIA).

“Both parties seem to have forgotten what FOIA is all about” said the court, noting multiple errors by the District agencies suggesting more interest “in gamesmanship than in FOIA compliance,” but also questioning “whether FOP was more interested in obtaining responsive documents, or in litigating about obtaining responsive documents.”

Concluding that good faith consultation is imperative and, though lacking authority to “order FOP and the District to end their FOIA feuds,” the court directed the Superior Court at least to order mediation before any further litigation.

The case is Fraternal Order of Police v. District of Columbia, No. 13-CV-1146.