Metro Secrecy Again – Federal Court Upholds Denial of Customer Survey
Fritz Mulhauser | May 26, 2020 | Last modified: May 29, 2020
A federal judge Thursday (21) denied a public records request for the questions in the Washington Metro Area Transit Agency quarterly rider survey. The opinion upholds another in the long history of evasive actions by the agency that frustrate press and public seeking details of the beleaguered system.
Advocates known as Unsuck DC Metro who champion more rider friendly Metrobus and rail have tried since 2018 to find out about what the system learns from questioning 3,000 riders a year online and by phone. The agency is not subject to open records laws but has its own Public Access to Records Policy (PARP). The policy includes exemptions like those in the federal and D.C. Freedom of Information Acts; one of those is at the center of the case.
The agency stonewalled the Unsuck request at first but after an internal appeal released 29 pages (all but one redacted) along with a bill for $324.17 in processing fees. The agency said the survey was off-limits, as a PARP exemption protects records of sensitive internal decision-making communications.
Unsuck got legal help from Judicial Watch and sued a year ago, paring down its request to just the survey questions. They argued that a set of questions asked to thousands of members of the public was just a fact, and hardly top secret. So many people heard the questions (and could have written them down), they couldn’t plausibly fall within the exemption for records of confidential internal deliberations.
The Authority engaged the top-tier law firm of Akin Gump, located in the Robert Strauss Tower at 20th and K Streets, N.W., to defend the denial. (Unsuck estimated in a Tweet the agency spent $100,000 on legal fees.) The firm brought home a victory for their client in the opinion of Judge Carl J. Nichols released last week.
After graduating in 1996 from the University of Chicago Law School, Judge Nichols served as a law clerk to Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia and to Justice Clarence Thomas of the Supreme Court of the United States. Following his clerkships, Judge Nichols was an associate and then partner at Boies, Schiller & Flexner LLP. From 2005-2009, he served in the U.S. Department of Justice, first as a Deputy Assistant Attorney General in the Civil Division, and then as Principal Deputy Associate Attorney General. Judge Nichols was a partner at Wilmer Cutler Pickering Hale & Dorr LLP from 2010 until his appointment to the bench in 2019.
The court agreed with WMATA that the questions, and even the whole survey process, are exempt from public disclosure as they reveal internal deliberations about what matters to ask about—“which facts WMATA feels require development to inform its decisions about improvements in services and operations and the manner in which WMATA goes about developing those facts.”
Yet the problems of the system are widely known and have led to troubling drops in ridership. Thus it is hard to see a need to keep secret a set of survey questions likely asking about commonplace topics of broad discussion such as bus routes, late night service, fares, driver and station manager courtesy, transit police misconduct, and rail safety.
The opinion was based on court filings only and the agency papers were apparently more credible. Citing only one executive’s assertions, the court reached what seem questionable conclusions: “as WMATA emphasizes, public disclosure of the survey questions would lessen their value because of the potential for the results of the survey to be skewed. And public disclosure would prevent WMATA from using the survey questions as ‘a key metric to understanding whether WMATA is deploying its resources effectively.’” Unclear is the evidence for any of this.
Transit users might find it hard to believe that survey questions “if released, would reveal critical aspects of WMATA’s deliberative process–namely its identification of those areas of its service and operations that it thinks might require improvement.”
Are those areas really so puzzling? Most riders can talk for twenty minutes unprompted about “areas that might require improvement” —likely similar to what Metro bosses would come up with.
At the very least, the risk of release of already-public survey items deserved a stronger and more independent analysis than it gets in these brief sentences accepting agency conclusory offerings.
The premise of the exemption is worthwhile — that it’s important to protect records of candid or personal views exchanged internally before government decisions. In the pre-Hiroshima summer of 1945, conflicting advice from atomic bomb scientists, other nations’ leaders, and U.S. political figures to President Harry Truman on alternative ways to end the war with Japan surely needed to be closely held to encourage honest and frank communication and avoid premature closure. The exemption or privilege, found in rules of discovery for all civil lawsuits as well as in FOIA, assures that deciders can have free-flowing advice that won’t be in tomorrow’s press or a court brief.
But it’s recognized that officials tend to throw this handy cloak of secrecy over lots of records that are just facts or not really candid advice in advance of action. It’s come to be the second-most common FOIA exemption invoked in denials of D.C. government records.
The U.S. Court of Appeals here warned almost 50 years ago that “courts must beware of ‘the inevitable temptation of a governmental litigant to give this exemption an expansive interpretation in relation to the particular records in issue.’” Soucie v. David, 448 F.2d 1067, 1077-78 (D.C. Cir. 1971) (quoting Ackerly v. Ley, 420 F.2d 1336, 1341 (D.C. Cir. 1969).
The Unsuck DC Metro plaintiffs might well invest in one more legal brief seeking review from that same Court of Appeals just quoted, to test the reasoning of Judge Nichols in this new opinion. A notice of appeal must be filed within 30 days of the lower court judgment.