D.C. Police Officials Manipulated FOIA to Avoid Embarrassment Says New Lawsuit
Fritz Mulhauser | February 3, 2022 | Last modified: August 24, 2023
UPDATE 8/24/23: The court denied in May last year the District of Columbia request to toss out the case, and the parties have been diving into the facts ever since. Huge files and many days of depositions are involved, and plaintiff Amy Phillips expanded her legal team to include attorneys from the Williams & Connolly LLP firm. New information coming to light late in this 14-month extended “discovery” phase led Phillips to ask the court in May this year to expand the case to include a second charge that D.C. engages in a “pattern and practice” of unlawful FOIA delay. (The initial focus was on unconstitutional denial of normal FOIA access because of her critical viewpoint.) The court’s permission is required for such a late change, as the rules for all civil cases rule out added claims beyond a deadline that has long past. The court has not yet ruled.
The request to add a claim revealed Phillips has been reviewing data on 6,000 FOIA requests from 2017 to 2021, which D.C. produced in March after months of delay. The data, according to a court filing, included notes on the in-house case tracking database that shed light on patterns of delay suggesting “an additional claim available to Plaintiff, that the watchlist policy violated FOIA by systematically delaying requests, in addition to discriminating based on viewpoint.” Specifically, even after searches are completed, “requests submitted by watchlist requestors frequently sit for weeks or months, or sometimes years, while they purportedly await review from high-ranking members of MPD”–contrary to time limits for FOIA processing in the law. That was not a legal claim in the original lawsuit. The District opposed expansion of the case saying it was too late, would prejudice the defense by requiring added work for D.C. attorneys, and was out of bounds since the basic question whether “pattern and practice” claims of FOIA violation are even allowed is an interpretation of D.C. law that should be handled in D.C. courts. If the court allows the new claim, D.C. could be allowed to move to dismiss it, which may add months to the schedule. With discovery ending September 8, the parties will reconvene with the court in an electronic hearing September 28 at 10.
UPDATE 3/25/22: In a Washington Post opinion piece today (25), plaintiff’s attorney Charlie Gerstein criticized the District brief discussed below that argued the alleged FOIA review practices were not illegal (if they happened, which is never conceded at this early stage of a lawsuit). Gerstein noted D.C. Mayor Muriel Bowser in early comments on the suit had disapproved of any FOIA watchlist. Gerstein thus found it “shocking that [D.C. Attorney General Karl] Racine chooses to explicitly defend an unconstitutional watchlist.” Referring to the upcoming election to fill retiring AG Racine’s post, Gerstein said “The public should demand that the candidates to replace him explain how they will handle situations like this in the future. Will they do whatever the police department or any other department tells them to do in court? Or will they take a stand and insist that D.C. agencies follow the law?” Gerstein told WTOP on March 15, “It’s one thing to say that the watchlist doesn’t exist, which they will have an opportunity to do later in the case… It’s another thing … to say that the watchlist policy is OK.”
UPDATE 3/14/22: The District has asked a federal judge to dismiss the dramatic lawsuit filed in February by Amy Phillips charging that D.C. police officials at the highest level have an unwritten policy to treat FOIA requests, including one of hers, worse when they come from critics. The 26-page brief by the Office of the Attorney General (representing the police) filed Friday (11) presents a barrage of arguments urging the court to find that Phillips lacks enough facts and legal support to be allowed to proceed. At this very earliest stage of a lawsuit, the court assumes the plaintiff’s complaint states true facts, though each, such as Phillips’ charge of deliberate and ongoing discriminatory enforcement of FOIA law to discourage disfavored requesters, must be backed up with evidence if the case proceeds. But, says the OAG, even If the previous MPD chief Peter Newsham did check on some requests, there’s only “pure speculation” that continued under Chief Robert Contee. And even so it’s “entirely plausible” to prepare the chief for public questions and a “sensible policy” to review proposed responses to ensure “accuracy and propriety of information released.”
Martin Austermuhle in his account today (March 11) for dcist/WAMU quotes Phillips’s attorney, Charlie Gerstein, that D.C. isn’t addressing the heart of the lawsuit: “We don’t just allege that they’re delaying so that they have a better and sometimes even more appropriate response. Instead, we allege that they’re delaying for the purpose of slowing down public criticism, and we have many occasions in the complaint which we allege that information was improperly withheld.” According to Austermuhle, Gerstein also disputes the case is about isolated incidents and ancient history, “saying that the policy went on for long enough to be considered established practice and that current MPD employees have told [former MPD FOIA officer Vendette] Parker that it continues.” Phillips will likely submit a brief opposing dismissal, and the court may or may not hold a session to hear both sides argue their points.
MPD for years gave unfavorable treatment to some FOIA requests and requesters, at the direction of high officials, if the records had the “potential to embarrass” the police department, according to a federal lawsuit filed Wednesday (2) in D.C.
Reporters, defense attorneys, the ACLU of D.C. and other activists are among those allegedly targeted to have their requests mishandled, according to a sworn statement in the lawsuit by Vendette Parker, the department’s FOIA Officer from October 2017 until her retirement in January 2020.
The lawsuit alleges then-chief Peter Newsham was concerned about surprise questions and negative publicity based on released records, which led to directions from the MPD chief operating officer LeeAnn Turner to Parker on her first day as FOIA officer.
Turner told Parker, according to the lawsuit papers, she was to “notify Newsham and Turner of FOIA requests that may lead to criticism of the department, specifically those originating from news reporters or people known to be critical of the department, or those containing requests for information with the potential to embarrass the department.”
Turner then reviewed the specific records to be released and told Parker and staff how to respond, sometimes citing the chief’s own directions. The practice continued for the two years Parker served as FOIA officer until her retirement in early 2020. Newsham was chief throughout; he retired in January 2021 and is now chief of police in Prince William County, Virginia.
According to the lawsuit, among those flagged on the “watch list” for extra review of their requests were Eric Flack, a reporter with WUSA-9; Marina Marraco, a reporter with FOX-5 DC; the ACLU of D.C.; Denise Krepp, an Advisory Neighborhood Commissioner; Lorenzo Greene, also an Advisory Neighborhood Commissioner; and Amy Phillips and other criminal-defense lawyers.
Turner’s directions, according to Parker, were to take action to slow or prevent release of the requested records. The lawsuit cites Parker’s estimate that, between 2017 when she came to the FOIA office and the end of 2019, MPD “delayed, denied, or improperly altered” approximately 20 requests pursuant to the chief’s unwritten review policy.
The D.C. Freedom of Information Act emphasizes “expansion of public access and the minimization of costs and time delays” and requires agencies to release public records (with only a few allowable exemptions) to anyone who asks, regardless of their identity or purpose. Any needless delay, improper claim of exemption or unjustified fee claim, imposed only on account of the requester’s reporting or other public activity would appear to not only violate the FOI law but constitutional protections as well.
The legal claims will be tested in an early phase of the litigation. The factual allegations in the complaint, which are stated without proof beyond the Parker declaration, will be explored as each side reviews documents and takes sworn depositions during the discovery period. The complaint does not address whether the practices continued after Vendette Parker left MPD in early 2020–in the rest of Chief Newsham’s term, or under his successor Chief Robert Contee who began January 2021.
The plaintiff bringing the lawsuit is Amy Phillips, a D.C. defense attorney. She has made a number of FOIA requests for MPD records with details of discipline for officer misconduct. One was a request in 2019 for records of a public trial that upheld an officer’s termination for unlawful searches. The MPD resisted the request for months, even when Phillips won an appeal to the Mayor’s Office of Legal Counsel that rejected MPD reasoning and ordered release, so in 2019 she challenged the District denial in Superior Court. MPD began releasing some redacted records but the court saw too many remaining uncertainties to end the case early. Reflecting the slow pace of civil cases with the courthouse still closed, the next hearing wasn’t till this coming April and Phillips dismissed her case last month. (See earlier blog about the case.)
In another example detailed in the lawsuit, MPD officials considered signs of bias revealed in massive stop-and-frisk data to be potentially embarrassing, so again Turner asked Parker “how they could avoid producing” the data when the ACLU of D.C. began requesting it. A sky-high fee estimate was the first tactic, then multiple delays. (See our earlier blog on the long delays in this case, also.)
In a third situation described in the lawsuit, a $5,267 estimate for video redaction may have been another effort to slow down a request. ANC commissioner K. Denise Rucker Krepp got that estimate when she asked for body-worn camera video of seven officers interrogating young boys on a Capitol Hill sidewalk. It probably would have fueled debate already going based on citizen cellphone video and considering the incident in question maybe never even happened. FOIA officer Parker at the time told the public the redactions were needed to “protect identities of children and uninvolved parties passing by, and well as confidential radio communications picked up by the body cams as well as restrictions which protect juveniles.” (See our blog here.)
The Open Government Coalition has for years questioned the over-redaction of body-worn camera video and its high costs. The lawsuit suggests other reasons than privacy protection may explain that result in some cases.
In short, this case includes the most dramatic allegation of official manipulation of FOIA in recent years. The claims backed by the sworn first-hand account of a participant about an MPD practice, dictated at the highest level, targeting dozens of FOIA requesters for different treatment based on their identity or past use of records to criticize the police department, are deeply troubling and undermine public faith in MPD. The D.C. Open Government Coalition hopes they prompt investigation and full public disclosure of the results. Public records are public, period.
The allegations also highlight the need, as the Coalition has repeatedly argued, to strengthen the Office of Open Government so it has the full authority to look at FOIA problems and assure the law is respected.
Early coverage by TV news was chiefly on their own reporters targeted; WUSA is here; Fox5 here. DCist good general rundown here. Washington City Paper (Mitch Ryals) here. And the Post. Mark Segraves of WRC News 4 scored a flat denial from Chief Robert Contee that anything like this is continuing. ACLU DC reaction is here. By Monday (7) David Kaplan of Fox5 reported a statement from former Chief Peter Newsham that “the FOIA team, my chief operating officer, she would inform me if information would leave the building, as an awareness, but there certainly wasn’t any list.” Plaintiff Amy Phillips’ lawyer Charlie Gerstein said, “We look forward to proving otherwise in court,” according to the Fox5 report.
If you have experienced problems getting police records and would like to ask further advice, contact us at: firstname.lastname@example.org. Our training session on the subject is Session 2 here.