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D.C. Public Defender Sues for Records from Public Hearing on Officer Misconduct – That MPD Says Are of No Public Interest

Fritz Mulhauser | July 19, 2019

Are records of a public police discipline hearing, including the transcript and exhibits, to be locked away afterwards as though it never happened?

MPD in March denied such a records request by the Public Defender Service and has not responded to a decision by the mayor overruling that denial. Now the case has landed in Superior Court.

Police department misconduct terminations, as proposed in this case, are rare. Public appeal hearings airing the details are even more unusual. But this one last September was beyond rare for several reasons, according to press reports (see ExpertPages blog and WUSA9 TV):

  • Who and what — the officer, a five-year veteran and the son of an MPD commander, did several invasive body cavity searches in the street in September 2017, one captured on a cell phone and later posted to YouTube; the other on body cam video. So there was no dispute over the facts.
  • Why — the officer admitted his action and that it violated his training and department policy, but he said senior officers told him to do it, that it was common (because so often it led to finding contraband?drugs or weapons), and he’d done it hundreds of other times.
  • And a 40-year veteran supervisor who testified in his support that the search had been proper was later fired (other top brass testified that the search was not correct).

The highly visible hearing with its lurid details that sparked community reaction and press coverage played out over three days last fall. Meanwhile, the ACLU of D.C. had sued for damages for one of the two victims, winning more press coverage when the District ended that case with a sizable (but sealed) settlement in December. (Details from ACLU here and WUSA9 here.)

The settlement came on the eve of a court deadline the ACLU said would have required disclosures about the officer?s extensive disciplinary history, including as many as 20 internal investigations.

Colbert King, Washington Post columnist, included the case in a column this March criticizing defensive comments of the police chief and instead urging the importance of open discussion of high-profile incidents.

You?d think public interest in the case could hardly be doubted.

Yet when the Public Defender Service made its request under D.C. FOIA for records from the September appeal hearing their lawyers had attended, MPD answered in lighting speed (within 90 minutes, according to the PDS court filing) that not a single page could be released. Secrecy was needed, said the agency, to protect the officer’s privacy since there was no public interest in the matter.

When PDS appealed the denial, the mayor’s lawyers overruled the police department, finding the public interest strong and the privacy interest diminished. After all, the records simply reflected contents of an open, public hearing.

Rejecting the blanket MPD denial, the mayor sent the request back for more work to analyze the file for fully releasable records and to redact parts of others so they could also be released. That was in April 2019. By late May, according to documents included in court papers, MPD would only tell PDS it was “reconsidering” the prior decision. PDS waited another month and, still hearing nothing, filed suit June 20.

The Coalition has noted numerous instances where agencies do not respond to opinions by the mayor on FOIA appeals, perhaps because of differences of view about what the law requires.

Current D.C. FOIA law provides no resolution to such standoffs within the executive branch except the costly and time-consuming process of a lawsuit asking the D.C. Superior Court to decide. Coalition analysis of many past FOIA cases has shown attorneys for the District have often spent years defending agency action in trials and appeals, only to lose eventually.

The PDS complaint is available in the case file on the Superior Court website. It includes the original request and correspondence of PDS with MPD, as well as the mayor’s April 2 decision on appeal No. 2019-105. (The opinion letter has not yet been posted in the online FOIA decision archive.)

The issue in the case is how to strike the proper balance between the public interest in records of significant police misconduct and police employees’ interest in privacy. The Coalition has disagreed often with MPD decisions denying records by giving little weight to the public interest. (For example, complaints against police are withheld by the agency and also the Office of Police Complaints. See also our comments on the record of the investigation of Officer Jordan Palmer that has also been withheld. Palmer received only a token punishment though he disregarded orders and drove the high speed chase that ended in the shooting death of Terrence Sterling in 2016.)   

The case is Phillips v. D.C., No. 2019-CA-0004054. The District has not responded, and no trial date has been set. Associate Judge Heidi Pasichow will hold a scheduling conference September 27, 2019, in Courtroom 517.