FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE LABOR COMMITTEE v. DISTRICT OF COLUMBIA , 2016 D.C. App. LEXIS 168 ( 2016 )

District of Columbia
Court of Appeals
No. 13-CV-1146
MAY 26 2016
FRATERNAL ORDER OF POLICE,
METROPOLITAN POLICE LABOR COMMITTEE,
Appellant,
v. CAB-8401-10
DISTRICT OF COLUMBIA,
Appellee.
On Appeal from the Superior Court of the District of Columbia
Civil Division
BEFORE: FISHER and EASTERLY, Associate Judges; and NEBEKER, Senior Judge.
JUDGMENT
This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby
ORDERED and ADJUDGED that the order granting summary judgment to
the District of Columbia is reversed, and the case is remanded to the Superior Court with
the directive that it enter an order requiring the parties to engage in mediation before
resuming litigation in this case.
For the Court:
Dated: May 26, 2016.
Opinion by Associate Judge Catharine Easterly.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS 5/26/16
No. 13-CV-1146
FRATERNAL ORDER OF POLICE,
METROPOLITAN POLICE LABOR COMMITTEE, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-8401-10)
(Hon. Erik P. Christian, Trial Judge)
(Argued April 21, 2015 Decided May 26, 2016)
Paul A. Fenn, with whom Barbara E. Duvall was on the brief, for appellant.
Jason Lederstein, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General,
and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.
Before FISHER and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge.
EASTERLY, Associate Judge: The Fraternal Order of Police (―FOP‖) appeals
the Superior Court‘s order granting summary judgment to the District based on the
court‘s determination that the District had fulfilled its obligations to respond to
FOP‘s Freedom of Information Act (―FOIA‖) request. With some dismay, we
2
reverse, but, before FOP and the District resume litigation in Superior Court, we
direct them to engage in mediation.
I. Facts and Procedural History
On September 24, 2010, FOP submitted a FOIA request to both the
Metropolitan Police Department (―MPD‖) and the Office of the Chief Technology
Officer (―OCTO‖). FOP requested three categories of documents ―in the
possession, custody and/or control‖ of either entity: (1) all email sent to or from
Mark Tuohey, including, but not limited to, all email sent to or from his email
addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and
one email address at the Washington D.C. Police Foundation; (2) all email sent to
or from Eric Holder, including, but not limited to, all email sent to or from his
email address at the law firm Covington & Burling LLP; (3) all email referencing
or mentioning the Washington D.C. Police Foundation. FOP stated that it sought
documents from these categories generated over a four-year period, ―from
November 1, 2006 to present.‖
Three days later, the FOIA Officer at MPD, Natasha Cenatus, sent a letter to
FOP in which she ―acknowledge[d] the receipt of [FOP‘s] request,‖ designated
3
―FOIA Request #100927-001.‖ Ms. Cenatus advised FOP that the ―statutory time
period permitted to process [its] request begins one full workday after the receipt
of [its] request.‖1 Ms. Cenatus indicated, however, that there might be an
―extension,‖ either ―due to the volume and extended time involved to process
email searches‖ or because FOP‘s request ―may have to be addressed by several
divisions within the department resulting in numerous responses.‖2 Ms. Cenatus
concluded her letter by informing FOP that it would ―receive written notice
advising [it] of the availability of requested information and the cost (if any) for
the search and duplication of requested materials, and how to obtain the
information.‖ That same day, Ms. Cenatus contacted OCTO about FOP‘s FOIA
1
Ms. Cenatus appears to have been referring to D.C. Code § 2-532 (c)
(2006 Repl.), which provides that ―[a] public body, upon request reasonably
describing any public record, shall within 15 days (except Saturdays, Sundays, and
legal public holidays) of the receipt of any such request either make the requested
public record accessible or notify the person making such request of its
determination not to make the requested public record or any part thereof
accessible and the reasons therefor.‖
2
Ms. Cenatus appears to have been invoking D.C. Code § 2-532 (d) (2006
Repl.), which allows, in ―unusual circumstances,‖ ―the time limit prescribed in
subsection (c) of this section‖ to be ―extended by written notice to the person
making such request‖ for no more than ten days. ―Unusual circumstances‖ are
restricted to: ―(1) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded in a
single request;‖ or ―(2) The need for consultation, which shall be conducted with
all practicable speed, with another public body having a substantial interest in the
determination of the request or among 2 or more components of a public body
having substantial subject-matter interest therein.‖ Id.; 1 DCMR § 405.3 (2005)
(same).
4
request and asked it to search for variations of three names (Mark Tuohey, ―Erick
[sic3] Holder,‖ and D.C. Police Foundation) within eight District government email
accounts for MPD employees.4
In early October, Ms. Cenatus sent a follow-up letter to FOP, now asserting
that FOP‘s request was ―vague and overbroad‖ and claiming that ―[a]dditional
information is required to conduct an adequate search.‖ For each category of
documents, Ms. Cenatus asked for the ―name of the individual e-mail boxes to
search or the unit/branch/department that may be associated with this request,‖ and
invited FOP to identify the subject matter underlying its request ―to assist [MPD]
in determining which individual e-mail boxes would most likely contain the
information [FOP] [was] seeking.‖ Ms. Cenatus stated that ―[w]ithout additional
information from [FOP] addressed above, MPD will conduct a search based on
[its] reasonable interpretation of [FOP‘s] request.‖ She did not disclose that she
had already asked OCTO to conduct searches of eight email accounts in relation to
FOP‘s request.
3
The correct spelling is ―Eric.‖
4
The eight District employees were Terry Ryan, Ron Harris, Cathy Lanier,
Gwendolyn Crump, Nicholas Breul, Leeanne Turner, Marvin Johnson, and Teresa
Quon.
5
In mid-October, Ms. Cenatus again wrote to FOP explaining that MPD was
claiming entitlement to a ten-business-day extension pursuant to D.C. Code § 2-
532 (d). Although she did not specifically cite D.C. Code § 2-532 (d)(2)
(authorizing an extension in ―unusual circumstances‖ where there is a need to
consult with other agencies with ―substantial interest‖ in the requested records, see
supra note 2), Ms. Cenatus appeared to rely on this specific subsection, citing
―unusual circumstances concerning [MPD‘s] need for consultation with another
public body, [OCTO], which has a substantial interest in the determination of this
request, as well as consultation within MPD among its Office of General Counsel
and the Executive Office of the Chief of Police . . . .‖5
The same day Ms. Cenatus wrote this letter, OCTO for the first time
responded to FOP‘s FOIA request. Effectively disavowing a ―substantial interest
in the determination of [FOP‘s] request‖ under D.C. Code § 2-532 (d)(2), OCTO
stated that, pursuant to Mayor‘s Order 2008-88, it was ―require[d]‖ to ―transfer‖ all
FOIA requests to ―the agency within the DC government that is the subject of the
requested emails.‖ OCTO explained that the subject agency was responsible for
5
Ms. Cenatus expressed no concern about the scope of the search or the
volume of the requested material, although these factors can independently justify
a ten-day extension of the deadline for production. See D.C. Code § 2-532 (d)(1);
supra note 2.
6
―formulating an email search request, review of results, possible redaction or
withholding, and transfer of final results to the requester.‖ OCTO then claimed
that it was ―unable to transfer [FOP‘s] request as required, or to process it in any
way, because of its extreme and extraordinary breadth.‖ OCTO stated that the
request ―identifie[d] no subject agency . . . and would require searching all of the
approximately 39,000 email mailboxes of the District Government.‖ OCTO thus
asked FOP to ―make [its] request specific enough to enable the appropriate agency
or agencies to process them by identifying the email mailboxes to be searched.‖
On October 29, 2010, Ms. Cenatus notified FOP that MPD had processed its
FOIA request. Ms. Cenatus stated that MPD had identified 1,400 pages of
responsive documents and that these, along with a privilege log noting redactions
(also known as a ―Vaughn index‖6), would be released to FOP upon payment of
costs for searching and copying. Ms. Cenatus explained that an email search
request was still pending with OCTO and that MPD expected a response from that
agency ―in approximately 90 days or by December 30, 2010.‖
Not having responded to any of these communications from either MPD or
OCTO, FOP sued the District on November 4, 2010, for constructive denial of its
6
So called after Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
7
FOIA request. Pursuant to D.C. Code § 2-532 (e) (2006 Repl.) and § 2-537 (a)(1),
(c) (2010 Supp.), FOP sought declaratory and injunctive relief, as well as
attorney‘s fees and costs. In its complaint, FOP acknowledged receipt of (and
attached as exhibits) OCTO‘s one email and all of Ms. Cenatus‘s letters, with one
exception: FOP made no mention of Ms. Cenatus‘s October 29 letter announcing
the production of the 1,400 pages of documents that Ms. Cenatus had identified as
responsive to FOP‘s FOIA request.7 On November 15, 2010, Ms. Cenatus emailed
FOP to inform it that this production was ―still in the FOIA office.‖ Two weeks
later, in its first motion for summary judgment, FOP acknowledged this production
by MPD, although it protested its adequacy and timing.
Thirteen months later, in December 2011, the District moved to dismiss
FOP‘s suit ―for lack of subject matter jurisdiction.‖ Citing inter alia ―D.C.M.R.
§ 1-402.6,‖8 the District argued that it had no obligation to respond to FOP‘s
7
Although FOP represents in its brief to this court that it did not receive
MPD‘s October 29 letter until sometime after November 4, 2010, there is nothing
in the record to support that claim; instead, in its pleadings FOP repeatedly referred
to MPD‘s ―October 29‖ letter as if it had received the letter on the day it was sent.
8
This regulation does not exist. It appears that the District meant to cite to
1 DCMR § 402.5 (2005): ―Where the information supplied by the requester is not
sufficient to permit the identification and location of the record by the agency
without an unreasonable amount of effort, the requester shall be contacted and
asked to supplement the request with the necessary information. Every reasonable
(continued…)
8
―overly broad‖ and ―vague‖ FOIA request. Still, the District argued that it had, to
the best of its ability, adequately and timely responded anyway by making two
responsive productions: on October 29, 2010, and February 11, 2011.
In support of its motion to dismiss, the District submitted an affidavit from
Ms. Cenatus describing her efforts to produce responsive documents. Ms. Cenatus
preliminarily stated that ―[i]t was very difficult for [her] to process this FOIA
request.‖ Regarding the requests for all emails to or from Mark Tuohey and Eric
Holder, she stated that ―MPD does not know which email addresses are used by
Messrs. Tuohey and Holder to send and receive email,‖ and that the ―four
mailboxes provided by FOP . . . did little to assist [her] understanding of FOP‘s
request because Messrs. Tuohey and Holder may use other mailboxes in addition
to these.‖ As to the request for all emails referencing the Police Foundation,
Ms. Cenatus explained that there were ―no limits on its scope whatsoever.‖
Ms. Cenatus also indicated that she was uncertain where to search for
responsive emails. Ms. Cenatus did not explain how many email accounts MPD
(continued…)
effort shall be made by the agency to assist in the identification and location of
requested records.‖
9
possessed or why she could not search them all, but she acknowledged that she did
not search every account.9 She noted her assumption that, ―[c]onsidering the ranks
of the persons involved, . . . the circle where responsive emails would be circulated
[was] likely fairly small.‖10 She then stated that she had ―commissioned email
searches within MPD‖ of eight email accounts11: ―Terry Ryan (General Counsel
for MPD), Ron Harris (Deputy General Counsel for MPD), Cathy Lanier (Chief of
Police), Gwendolyn Crump (Director of Communications), Nicholas Breul (a
Lieutenant involved with the Foundation), Leeanne Turner (then-Director of
Grants for the Foundation), Marvin Johnson (Manager of Grants), and Teresa
Quon (Senior Assistant Attorney General Counsel for MPD – who may have been
consulted for legal advice regarding the Foundation[)].‖
Ms. Cenatus stated in her affidavit that as a result of these searches, she
released to FOP, on October 29, 2010, 1,400 pages of responsive documents
9
Ms. Cenatus ―defer[red]‖ to OCTO‘s assertion that a response to FOP‘s
request ―would require searching approximately 39,000 email mailboxes,‖ i.e., all
the email accounts used by the District government.
10
Ms. Cenatus noted that she was ―aware that Mr. Holder is the Attorney
General of the United States‖; that Mr. Tuohey ―is a private attorney who has
worked for the District Council‖; and that both men ―used to sit on the Board‖ of
the D.C. Police Foundation with FOP‘s Chairman Kristopher Baumann and Chief
of Police Cathy Lanier.
11
The identities of these eight individuals corresponded to the eight email
addresses Ms. Cenatus submitted to OCTO on September 27, 2010.
10
together with a Vaughn index. Ms. Cenatus further stated that on February 11,
2011, she made a supplemental production of ―16,703 additional pages of records
that had been provided to [her] by OCTO‖ in response to her September 2010
request. She noted that ―[t]o speed processing, [she] did not have the opportunity
to check for the extent of redundancy with‖ her initial production.12
At the December 2011 hearing on the District‘s motion to dismiss, FOP
protested that it never received a supplemental production of documents. Counsel
for FOP further stated that, prompted by the confusion about what had actually
been produced, he had only recently counted the pages picked up from MPD in
response to Ms. Cenatus‘s October 29 letter; when he did so, he discovered that the
production amounted to no more than several hundred pages.
As the Assistant Attorneys General (―AAGs‖) representing the District were
new to the case, they could only say that MPD in its initial production had ―tried to
give‖ FOP 1,400 pages, but counsel could not say how many pages FOP had
actually received. Regarding the supplemental production, the AAGs informed the
12
Acknowledging that this production was ―several months past the
deadline,‖ Ms. Cenatus stated that she released these documents to FOP ―at no
charge.‖
11
Superior Court that MPD had packaged over 16,000 pages of documents in ―25 to
35 envelopes‖ and sent them to FOP by first-class mail, without tracking or
confirmation of delivery. The AAGs could not say why MPD had not, as with the
initial production, simply contacted FOP to come pick up this ―very large
production.‖ The AAGs told the court they would reproduce to FOP all the
documents from the District‘s initial and supplemental productions. The court and
the parties agreed to hold the litigation in abeyance until FOP could examine these
two productions in full.
The District subsequently produced responsive documents in electronic
format13 along with a revised Vaughn index. It then filed a motion for summary
judgment or in the alternative a motion to dismiss FOP‘s suit as moot. The District
preliminarily argued that FOP‘s ―overbroad‖ request had never triggered an
obligation on the District‘s part to search for or produce documents, because FOP
had neither ―reasonably described‖ the records sought nor provided necessary
clarifying information as requested by the District. The District then argued that it
had nevertheless reasonably interpreted FOP‘s FOIA request and timely produced
responsive documents. Alternatively, the District argued that the case should be
13
MPD provided the documents to FOP on a combination of DVDs and
CDs. It later provided this same production to FOP on a flash drive.
12
dismissed as moot because the District had produced ―tens of thousands of pages
of responsive documents‖; because FOP could not ―produce any credible evidence
to demonstrate that there are any additional documents responsive to its request‖;
and because there were ―no longer any ‗live‘ issues . . . to decide.‖
FOP opposed the District‘s motion to dismiss, arguing that its FOIA request
reasonably described the records sought, as evidenced by the District‘s efforts to
produce some responsive documents; that the District‘s search and resulting
production were not reasonable because the District had arbitrarily limited its
search to the email accounts of eight individuals selected by Ms. Cenatus; and that
the case was not moot. FOP also cross-moved for summary judgment, arguing that
the District had failed to timely comply with FOP‘s FOIA request, failed to
demonstrate that it had conducted a reasonable search, and failed to justify in its
Vaughn index all redactions or withholdings pursuant to the requirements of D.C.
FOIA.
The Superior Court denied the District‘s motion to dismiss, concluding that
the case was not moot, but it granted the District‘s motion for summary judgment.
Taking up the District‘s argument that FOP had failed to reasonably describe the
records sought, the court rejected the District‘s argument that such a failure
13
rendered FOP‘s request ―void‖ and ruled instead that it tolled the District‘s
obligations to produce documents under the deadlines imposed by D.C. FOIA.
The trial court then determined that the District‘s search and production were
reasonable in light of FOP‘s ―overbroad and vague‖ request, coupled with FOP‘s
failure to respond to a request for clarification. Lastly, the court ruled that MPD‘s
revised Vaughn index was sufficiently detailed to justify withholding documents.
But, noting certain discrepancies between the index and the documents actually
produced, the court also ordered FOP to provide the District with a ―full list of
documents not listed in the [i]ndex‖ so that the District could produce a revised
index that accurately reflected the redactions in the produced documents.
Concluding that FOP had not ―substantially prevailed‖ in the litigation, the court
denied FOP‘s request for attorney‘s fees.
The Superior Court subsequently denied FOP‘s motion for reconsideration.
This appeal followed.
II. The Adequacy of FOP’s FOIA Request
The District argues that we need not review whether it complied with its
disclosure obligations under D.C. FOIA because FOP‘s request ―was so broadly
14
worded as to be void from the start.‖ The District reasons that if ―no FOIA request
can be said to have been made in the first place,‖ then any defects in its response
cannot support a cause of action under D.C. FOIA. According to the District,
summary judgment could have been granted on this ground alone. Reviewing this
threshold question of law—in essence, a question of statutory interpretation—de
novo,14 we reject the District‘s argument that the wording of FOP‘s request
rendered it void, and we uphold the trial court‘s decision to review the District‘s
FOIA compliance.
The District‘s novel argument cannot be reconciled with the language or
animating spirit of D.C. FOIA. D.C. FOIA is a sunshine law that codifies, as
―[t]he public policy of the District,‖ the entitlement of ―all persons . . . to full and
complete information regarding the affairs of government and the official acts of
those who represent them as public officials and employees.‖ D.C. Code § 2-531
(2015 Supp.). A core provision is D.C. Code § 2-532 (c), which requires a ―public
body, upon request reasonably describing any public record,‖15 to timely produce
14
District of Columbia v. Place, 892 A.2d 1108, 1110-11 (D.C. 2006).
15
D.C. FOIA borrows the definition of ―public record‖ from the D.C.
Administrative Procedure Act. D.C. Code § 2-539 (2006 Repl.) (incorporating
D.C. Code § 2-502 (18) (2006 Repl.) (―all . . . documentary materials . . . retained
by a public body.‖)). ―Public body‖ is not defined by D.C. FOIA, but the D.C.
(continued…)
15
those documents in its possession or to provide a legitimate reason for
nonproduction. The District urges this court to interpret this statutory provision as
imposing a predicate ―specificity‖ requirement that gives individual FOIA officers
the authority to ignore FOIA requests that, in their view, fail to ―reasonably
describe[]‖ records. But neither D.C. Code § 2-532 (c) nor any other provision of
D.C. FOIA states that a requester‘s failure to reasonably describe records to a
FOIA officer‘s satisfaction will render the request void. Particularly in light of the
statutory directive that the provisions of D.C. FOIA be ―construed with the view
toward expansion of public access,‖ D.C. Code § 2-531, we could treat that silence
as definitive and reject the District‘s argument. But even were we to discern
ambiguity in the statute and interpret it with the other tools we have at hand, we
would reach the same conclusion.
The District acknowledges that the ―reasonably describ[es]‖ language from
D.C. Code § 2-532 (c) was modeled on amendments to the federal FOIA. See
Committee on the Judiciary and Criminal Law, D.C. Council, Report on Bill No.
1-119 at 7 (Sept. 1, 1976). The federal statute originally obligated federal agencies
(continued…)
APA defines it as ―the Mayor, an agency, or the Council of the District of
Columbia.‖ D.C. Code § 2-502 (18A) (2006 Repl.).
16
to respond to requests for ―identifiable records.‖ But a concern arose that agencies
were withholding documents from the public by narrowly construing this phrase—
that they were denying individuals‘ requests even when they knew ―all along
precisely what records were being requested.‖ S. Rep. No. 93-854, at 162 (1974);
see also Truitt v. Dep’t of State, 897 F.2d 540, 544-45 (D.C. Cir. 1990). Thus, in
1974, Congress revised the statute to make clear that, to trigger an agency‘s federal
FOIA obligations, a requester need only ―reasonably describe[]‖ the records
sought. See S. Rep. No. 93-854, at 161-62 (1974); see also 5 U.S.C. § 552
(a)(3)(A) (2012); Truitt, 897 F.2d at 544-45. The amendment was meant to
―make[] explicit the liberal standard for identification,‖ not to limit disclosure of
public records. S. Rep. No. 93-854, at 162 (1974) (―[T]he identification standard
. . . should not be used to obstruct public access to agency records.‖).
The District Council passed local FOIA legislation two years later, in 1976.
In its report on the bill, the Committee on the Judiciary and Criminal Law
specifically noted Congress‘s concern that, under the earlier version of the federal
FOIA, federal agencies had ―used the lack of identification as a general excuse for
withholding records.‖ Report on Bill No. 1-119, at 7. Accordingly, the Committee
explained that its draft legislation adopted the federal ―reasonably describ[e]‖
language to clarify ―the nature of a sufficient request‖ under D.C. FOIA. Id. And
17
in its section-by-section analysis of the bill, the Committee stated that a ―request
would be sufficient if it contained the general subject matter involved and
reference to the official or to an office within an agency which was either the
source or office responsible for keeping the record.‖ Id. at 12.
The implementing regulations of D.C. FOIA, in turn, impose no greater
burden on requesters than to ―reasonably describe the desired record(s).‖ 1 DCMR
§ 402.4.16 Far from giving an individual FOIA officer the authority to deem a
FOIA request void when the officer is unsure what the requester wants or where it
might be found, the regulations impose an affirmative obligation on the FOIA
officer to engage with the requester and seek out the information needed to fulfill
the request: ―Where the information supplied by the requester is not sufficient to
permit the identification and location of the record by the agency without an
unreasonable amount of effort, the requester shall be contacted and asked to
supplement the request with the necessary information.‖ 1 DCMR § 402.5.
Indeed, the regulations explicitly require that ―[e]very reasonable effort . . . be
16
Requesters are invited, ―[w]here possible,‖ to provide ―specific
information regarding names, places, events, subjects, dates, files, titles, file
designation, or other identifying information.‖ 1 DCMR § 402.4.
18
made by the agency to assist in the identification and location of requested
records.‖ Id.
Moreover, when a District entity subject to FOIA has difficulty
understanding a request, the regulations provide that such difficulty operates as a
tolling mechanism. Pursuant to 1 DCMR § 405.6, which falls under a section of
the regulations addressing ―Time Limitations,‖ the clock for production does not
start until the request is received ―in compliance with [D.C. FOIA and its
regulations].‖ 1 DCMR § 405.6. More particularly, if a FOIA officer, ―pursuant to
§ 402.5, [has] contact[ed] the requester for additional information, then the request
is deemed received when the Freedom of Information Officer receives the
additional information.‖ Id.
In this case, there was no reason to toll the District‘s obligation to respond to
FOP‘s request, much less reason to deem that request void. As we read FOP‘s
request, it reasonably described what FOP sought. FOP requested MPD emails
from a discrete time period (November 1, 2006 to September 24, 2010) that were
sent to or by particular individuals (Eric Holder and Mark Tuohey), or that were
about a particular entity (the Washington D.C. Police Foundation). We fail to see
why MPD or OCTO struggled to discern what was meant by this request, but to the
19
extent they did, D.C. FOIA regulations obligated the agencies to ask for clarifying
information (as MPD and OCTO both did17). At most, any lingering confusion
about what to look for or where to find it is properly considered only in
determining whether the District‘s search was reasonable. See infra Part III.
But the crux of the District‘s argument on appeal is not that FOP‘s request
was void due to a lack of clarity. Rather, the District argues that FOP‘s FOIA
request was void because the effort required to respond—including the necessary
search and review process—imposed too great a burden on the District.18 To make
this argument, the District looks to federal cases postdating the passage of D.C.
17
Clearly, MPD and OCTO did not consider FOP‘s request void. To the
contrary, Ms. Cenatus acknowledged receipt, gave FOP‘s request an official
number, indicated that she would process the request, and then subsequently
represented that, ―hav[ing] processed‖ FOP‘s FOIA request, she was producing
1,400 pages of responsive documents to FOP. For its part, OCTO eventually gave
MPD 16,703 pages of documents in response to FOP‘s request, which MPD then
turned over to FOP.
18
The District objects to what it understands as a request that it search all
email accounts belonging to District employees—apparently 39,000 accounts total.
But as the District is surely aware, one cannot direct a FOIA request to the entire
District government. Rather, a requester seeking documents pursuant to D.C. Code
§ 2-532 (c) must target a particular ―public body,‖ i.e., a specific agency, the
Mayor‘s Office, or the Council. See supra note 15; 1 DCMR § 402.1 (―A request
for a record of an agency . . . shall be directed to the particular agency.‖). Thus,
FOP‘s FOIA request can only be read as asking for a search—either by MPD or
OCTO—of MPD email accounts. (FOP never indicated that it believed OCTO as
OCTO possessed any responsive documents.)
20
FOIA that have interpreted the corresponding ―reasonably describe[]‖ language in
the federal FOIA so as to relieve federal agencies of their obligation to respond to
requests for voluminous records.19 See, e.g., Am. Fed’n of Gov’t Emps., Local
2782 v. U.S. Dep’t of Commerce (AFGE), 907 F.2d 203, 209 (D.C. Cir. 1990)
(―[N]either request ‗reasonably describes‘ a class of documents subject to
disclosure . . . . An agency need not honor a request that requires an unreasonably
burdensome search.‖).
This later judicial construction of the ―reasonably describes‖ language in the
federal FOIA statute is no more than ―instructive authority with respect to our own
Act.‖ Doe v. District of Columbia Metro. Police Dep’t, 948 A.2d 1210, 1220
(D.C. 2008) (quoting Wash. Post. Co. v. Minority Bus. Opportunity Comm’n, 560
A.2d 517, 521 n.5 (D.C. 1989)); see also Fraternal Order of Police, Metro. Police
19
The District also cites to Irons v. Schuyler, 465 F.2d 608 (D.C. Cir.
1972), but as Irons predated the 1974 amendments to the federal FOIA, it could
not have interpreted the amended statute. To be sure, the Judiciary Committee
Report discussing the proposed amendments contains a citation to Irons, but this
citation simply supports the Committee‘s recommendation that a request
―reasonably describe[]‖ the records sought. See S. Rep. No. 93-854, at 162 (1974);
see also Truitt, 897 F.2d at 545 & n.34.
21
Dep’t Labor Comm. v. District of Columbia (FOP Lanier20), 52 A.3d 822, 829
n.14 (D.C. 2012) (acknowledging that ―when a local law is borrowed from a
federal statute, it is presumed that [the preexisting] judicial construction of the
federal statute is borrowed as well,‖ but explaining that this presumption does not
apply to judicial constructions that postdate the passage of corresponding local
laws). Unlike the federal courts interpreting the federal FOIA, we cannot discern a
basis to read into the ―reasonably describing‖ language of D.C. Code § 2-532 (c)
the authority to treat as void requests that the District asserts are overly
burdensome.21
To begin with, we understand the plain language of our statute—―reasonably
describing any public record‖—to specify the quantum and quality of the
information that must be provided by the requester. This language modifies the
20
Due to the number of published cases addressing distinct FOIA disputes
between FOP and the District, we incorporate the subject matter of the request in
our short-form citation to avoid confusion.
21
Even federal courts that acknowledge this void-for-volume interpretation
of the federal FOIA require an agency to justify its disregard of a FOIA request
with ―a detailed explanation by the agency regarding the time and expense of a
proposed search [so that a court might] assess its reasonableness.‖ Shapiro v. CIA,
No. 14-CV-19, 2016 WL 1069646, at *5 (D.D.C. March 17, 2016) (quoting Wolf v.
CIA, 569 F. Supp. 2d 1, 9 (D.D.C. 2008)). As discussed below, see infra Part
III.A, neither MPD nor OCTO submitted such an explanation to the trial court.
Thus, even were we to adopt this interpretation of D.C. FOIA, the District‘s
argument would fail.
22
―request,‖ not the effort that must be expended or the volume of production that
must be made by the agency. This is not to say that the burden of fulfilling a
request is of no concern under D.C. FOIA. When a FOIA request requires
gathering and examining ―a voluminous amount of separate and distinct records,‖
D.C. Code § 2-532 (d)(1) affords the District additional time to produce responsive
documents. See supra note 2.22 The burden of fulfilling a request may also be
considered by the trial court in evaluating the reasonableness of the District‘s
efforts to search for and produce documents responsive to a request. D.C. FOIA
provides these safety valves; but there is nothing in the statute that allows a
prospective determination of undue burden to void a FOIA request.
The legislative history of D.C. Code § 2-532 (d) further supports our
conclusion that D.C. FOIA does not permit a determination that certain FOIA
requests are ―void for volume.‖ This history reflects the D.C. Council‘s intent to
put a stop to ―open ended‖ extensions for processing requests. Thus, after
imposing an initial fifteen-day response time, the Council chose to ―more strictly
limit[] further delay to 10 days and only upon specified unusual circumstances
such as with a request for voluminous separate records or records which exist in
22
The District never invoked this provision when responding to FOP‘s
request. See supra note 5.
23
other agencies or in which other agencies have an interest.‖23 See Report on Bill
No. 1-119, at 6. In light of the Council‘s aim to strictly limit extensions of time,
even to accommodate production of voluminous documents, we are hard pressed to
see how a different provision of D.C. FOIA, which in our view addresses the
specificity of the request, ―voids‖ ab initio a request that, in the agency‘s
judgment, imposes too great a burden on the agency.24
23
In this respect, the District‘s statute diverges from the federal FOIA. It
establishes a much less flexible timetable for production of documents both overall
and specifically with respect to voluminous documents.
The federal FOIA does not set deadlines for the actual production of
documents; instead it sets deadlines for the agency to determine whether it will
comply with the request, 5 U.S.C. § 552 (a)(6)(A)(i), and requires only the
―prompt[]‖ production of documents, 5 U.S.C. § 552 (a)(3)(A). The federal FOIA
is also much more generous in giving agencies extra time to evaluate requests that
appear to call for particularly voluminous productions: while ordinarily an agency
has twenty business days to determine whether it will comply with a request, 5
U.S.C. § 552 (a)(6)(A)(i), in ―unusual circumstances‖ (including the possibility of
an especially voluminous production, 5 U.S.C. § 552 (a)(6)(B)(iii)(II)) the agency
can toll the deadline for this determination by notifying the requester of its need for
additional time, 5 U.S.C. § 552 (a)(6)(B)(i). And though the agency may not claim
an extension of more than ten business days, id., a court reviewing a claim of
untimeliness may grant the agency additional time as needed so long as the agency
can show it is exercising due diligence in the face of ―exceptional circumstances.‖
5 U.S.C. § 552 (a)(6)(C)(i).
24
To the extent a ten-day extension is inadequate, that is an issue for the
legislature, not this court, to resolve. We note that the D.C. Attorney General has
previously contacted the D.C. Council to ask it to ―address [the burden-of-
production problem] through legislation allowing agencies additional time to
comply with FOIA requests,‖ but to date the Council has not seen fit to amend
D.C. FOIA in this manner.
24
In sum, we reject the District‘s argument that FOP could not challenge in
court the adequacy of the District‘s search and production because FOP‘s FOIA
request was ―void for volume.‖ Instead we conclude that FOP submitted a request
that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s
obligations under D.C. FOIA to identify and produce responsive material. Thus
we proceed to examine whether the District fulfilled its obligations under the
statute.
III. The Adequacy of the District’s Search and Production
FOP argues that the Superior Court should not have granted the District
summary judgment because the District‘s search for responsive documents, in only
eight MPD email accounts, was inadequate,25 and because the District‘s Vaughn
index failed to adequately justify its withholdings and redactions.26 Reviewing the
25
FOP has not challenged the terms employed by the District in conducting
its search.
26
In its briefs to this court, FOP also sought to challenge the timing of the
District‘s two productions. But at oral argument FOP conceded that, once a
production has been made, the only issue for the courts is the adequacy of the
production, and if the production is adequate, the timeliness of the production is
moot, see Fraternal Order of Police, Metro. Police Labor Comm. v. District of
Columbia, 113 A.3d 195, 199 (D.C. 2015) (―FOP‘s request for such a declaration
[of untimeliness] is therefore moot once the trial court determines that the District
has adequately and completely complied with the FOIA request.‖); see also id. at
(continued…)
 25
trial court‘s ruling de novo, we conduct an independent review of the record and
apply the same substantive standard used by the trial court. Murphy v.
Schwankhaus, 924 A.2d 988, 991 (D.C. 2007). We conclude that the District
failed to demonstrate that it was entitled to summary judgment, Smith v. Swick &
Shapiro, P.C., 75 A.3d 898, 901 (D.C. 2013) (―Summary judgment is appropriate
only when there are no material facts in issue and when it is clear that the moving
party is entitled to judgment as a matter of law.‖), and thus determine that remand
is required.
A. The Adequacy of MPD’s Search
In assessing whether a District entity subject to FOIA has undertaken an
adequate search to fulfill a FOIA request, courts look not to ―the fruits of the
search,‖ but instead to the ―appropriateness of the methods used to carry out the
search.‖27 Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir.
(continued…)
200 (explaining that adequate production of documents moots out litigation of
timeliness but not of attorney‘s fees).
27
In our analysis of this issue, we rely on federal case law as well as District
precedent because this court has endorsed the test employed by federal courts for
evaluating the adequacy of a search for documents responsive to a FOIA request.
See Doe, 948 A.2d at 1220.
26
2003); accord, Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)
(―[T]he issue to be resolved is not whether there might exist any other documents
possibly responsive to the request, but rather whether the search for those
documents was adequate.‖). ―An agency‘s search conducted in response to a
FOIA request ‗need not be perfect, only adequate, and adequacy is measured by
the reasonableness of the effort in light of the specific request.‘‖ Fraternal Order
of Police, Metro. Police Labor Comm. v. District of Columbia (FOP
Peaceoholics), 79 A.3d 347, 360 (D.C. 2013) (quoting Meeropol v. Meese, 790
F.2d 942, 956 (D.C. Cir. 1986)).
In FOIA cases, ―[t]he burden is on the agency to demonstrate, not the
requester to disprove, that the materials sought . . . have not been improperly
withheld.‖ U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)
(quoting Committee Report explaining that ―[p]lacing the burden of proof upon the
agency puts the task of justifying the withholding on the only party able to explain
it‖). When the District seeks summary judgment, this burden aligns with the
District‘s burden as the moving party to prove there is no genuine issue of fact
regarding its fulfillment of its FOIA obligations. The District must establish
―beyond material doubt‖ that it expended reasonable efforts ―to uncover all
relevant documents.‖ Nation Magazine, Washington Bureau v. U.S. Customs
27
Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt, 897 F.2d at 542). To
carry that burden, the District ―must set forth sufficient information in its affidavits
for a court to determine if the search was adequate.‖ Id. (citing Oglesby v. U.S.
Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see also FOP Peaceoholics, 79
A.3d at 360 (―The burden is on the agency to establish ‗through reasonably
detailed affidavits that its search was reasonable.‘‖ (quoting Maynard v. CIA, 986
F.2d 547, 560 (1st Cir. 1993))).
As this court has explained, it is not enough for an affidavit to merely state,
in conclusory terms, that the locations searched were ―most likely to contain
the information which had been requested.‖ Doe, 948 A.2d at 1220-21 (quoting
Oglesby, 920 F.2d at 68). Instead, the affidavits submitted by the District in
support of a motion for summary judgment ―must demonstrate ‗with reasonable
detail[] that the search method . . . was reasonably calculated to uncover all
relevant documents.‘‖ FOP Peaceoholics, 79 A.3d at 360 (quoting Doe, 948 A.2d
at 1221). More concretely, the District must adequately explain both how the
search was conducted and why it was conducted in that manner; only then can the
trial court assess the reasonableness of the District‘s efforts. See Oglesby, 920
F.2d at 68 (determining that an agency failed to justify limiting its search to a
single record system where it was ―not clear from [the agency‘s] affidavit that
28
[this] system [wa]s the only possible place that responsive records [we]re likely to
be located‖).
In this case, the District limited its search to eight MPD email accounts. We
agree with FOP that the District failed to explain, much less justify, this limitation.
While the District did attach an affidavit from Ms. Cenatus, that affidavit
insufficiently explains the restricted search that she performed. And the District
submitted no comparable affidavit detailing OCTO‘s search. As a result, we know
very little, and nothing, respectively, about the rationales for MPD‘s and OCTO‘s
searches, and we are thus unable to say that they expended reasonable efforts.
Ms. Cenatus‘s job as the FOIA officer for MPD was to oversee the search
for documents in MPD‘s possession that were responsive to FOP‘s request. Yet
Ms. Cenatus‘s affidavit does not provide the number of email accounts employed
by MPD or describe her capacity to search MPD email accounts.28 On this record
28
In its opposition to FOP‘s motion for summary judgment, the District
asserted that its ―ability to search for e-mails can reasonably be conducted one of
two ways‖: ―individual users can manually search their computers, or the District
can conduct a larger-scale search through [OCTO].‖ This assertion is not
supported by Ms. Cenatus‘s affidavit or by any other document in the record. In
any event, it is far from clear what is meant by a ―manual‖ or ―larger-scale search
through [OCTO].‖
29
we have no idea why searching all of MPD‘s email accounts was infeasible, much
less why it might have been reasonable for her to limit her search to the eight
accounts selected. See Church of Scientology of Cal. v. IRS, 792 F.2d 146, 151
(D.C. Cir. 1986) (an agency must ―describe at least generally the structure of the
agency‘s file system which makes further search difficult‖). The District asserts in
its brief that, because ―it would have been unreasonable for Ms. Cenatus to initiate
a search of every District employee‘s email account, or all of MPD for that
matter,‖ she ―needed to winnow down the implicated accounts.‖ It goes without
saying that Ms. Cenatus as the FOIA officer for MPD is only responsible for
reviewing MPD records. But as to those records created and stored in electronic
form, we do not know and cannot simply assume, in this age of computerized
connectivity, that it would be unreasonable for MPD‘s FOIA officer to search all
of MPD‘s email accounts, regardless of how many accounts that might be.29
29
Electronic records have been subject to D.C. FOIA since the Council
extended the statute‘s coverage through the Freedom of Information Amendment
Act of 2000, D.C. Law 13-283, 48 D.C. Reg. 1917 (2001). The Council stated that
its intent, ―in keeping with the general purpose of FOIA,‖ was ―to provide the
public greater access to information, improve the effectiveness of the law, and
encourage better government responsiveness to requests for public records.‖
Committee on Government Operations, D.C. Council, Report on Bill No. 13-829 at
1 (2000). As amended, D.C. FOIA provides that ―[i]n responding to a request for
records pursuant to this section, a public body shall make reasonable efforts to
search for the records in electronic form or format, except when the efforts would
significantly interfere with the operation of the public body‘s automated
information system.‖ D.C. Code § 2-532 (a-2).
30
This deficit of information alone should have precluded a determination that
MPD‘s search was reasonable. But Ms. Cenatus‘s affidavit also failed to explain
why the eight email accounts she selected were ―reasonably calculated to uncover
all relevant documents.‖ See Weisberg, 745 F.2d at 1485 (quoting Weisberg v.
Dep’t of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983)). Much as she did in
FOP Peaceoholics, Ms. Cenatus simply asserted that she had assembled what she
considered to be a reasonable list of individuals likely to have contact with Mr.
Holder and Mr. Tuohey. See 79 A.3d at 361 (―[Ms.] Cenatus said she had selected
these particular custodians based on [her] determination that they were—by virtue
of their positions, titles and responsibilities—the individuals within MPD most
likely to possess electronic communications responsive to FOP‘s FOIA request.‖).
But other than stating that she assumed ―the circle where responsive emails would
be circulated is likely fairly small,‖ Ms. Cenatus did not explain why this circle
should be limited to eight officials, or why these eight MPD officials in particular
were chosen and others were excluded. Nor is it clear why emailed
communication about the D.C. Police Foundation would be limited to high-ranking
officials. Thus, as in FOP Peaceoholics, Ms. Cenatus‘s declaration does ―not
enable a judicial arbiter to evaluate whether the search was, in fact, reasonably
comprehensive.‖ 79 A.3d at 361.
31
Turning to OCTO, we know even less—nothing, actually—about its steps to
fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its
efforts in this case. The District never submitted an affidavit from OCTO detailing
where or how it searched for responsive emails. Ms. Cenatus stated in her affidavit
that she ―submitted a search request to [OCTO],‖ but we do not know what OCTO
did with that request. Assuming OCTO searched only the email accounts used by
the eight officials that Ms. Cenatus identified, we have no idea why circumscribing
its search in this manner was reasonable. OCTO is, after all, the arm of the District
government that ―develops, implements, and maintains the District‘s IT and
telecommunications infrastructure,‖30 and it reportedly employs ―cutting edge‖
systems.31 Perhaps it is nonetheless unreasonable to ask OCTO to run searches of
all MPD email accounts, but if that is the case, OCTO must explain why.
Given the paucity of information provided by the District about its searches,
we conclude that the District has failed to carry its burden to win summary
30
Office of the Chief Technology Officer, District Agency Support,
http://octo.dc.gov/page/district-agency-support (last visited April 19, 2016); see
D.C. Code § 1-1403 (2013 Repl.).
31
See Executive Office of the Mayor, Mayor Bowser Announces Open Data
Initiative, Names New Chief Technology Officer, MAYOR.DC.GOV (January 12,
2016), http://mayor.dc.gov/release/mayor-bowser-announces-open-data-initiative-
names-new-chief-technology-officer.
32
judgment with respect to the adequacy of its search.32 That said, we do not shut the
door to a summary judgment ruling for the District in the future. If the parties are
unable to settle this case, but see infra Part IV, and if the District renews its motion
for summary judgment and provides the court with sufficient detail about its email
systems, about the mechanisms available to search those systems, and about the
individuals likely either to have had contact with Mr. Holder or Mr. Tuohey or to
have worked on matters related to the Police Foundation, it may yet be able to
establish that its previous searches were adequate. See FOP Peaceoholics, 79 A.3d
at 362 (explaining that the District might yet be entitled to summary judgment if it
presented additional proof showing its efforts to search for documents were
32
The District suggests that it was entitled to summary judgment,
notwithstanding its failure to demonstrate that it conducted a reasonable search,
because FOP did not ―come forward with evidence to show that other e-mail
accounts would likely also contain responsive materials.‖ To the extent the
District relies on our statement in FOP Peaceoholics that once the District has
failed to meet its burden, FOP ―needs to show only that the District might have
discovered a responsive document had the District conducted a reasonable search
in order to defeat the District‘s motion for summary judgment,‖ 79 A.3d at 362, the
District mistakes the familiar summary judgment standard—that the nonmoving
party need only identify a material issue of fact on the face of the existing record—
for a novel burden-shifting requirement with no foundation in our precedent. As
explained above, the District, as the moving party, bore the burden of proof. FOP
thus had no obligation to ―come forward with evidence,‖ if the record developed
by the District, viewed in the light most favorable to FOP, revealed that material
issues of fact had yet to be resolved. The District‘s failure to explain why it
searched only eight email accounts raises substantial questions about the
reasonableness of its search and precludes an award of summary judgment to the
District.
33
reasonable). Thus, for now, we remand for further litigation, as needed, regarding
the adequacy of the District‘s search for documents responsive to FOP‘s FOIA
request.
B. The Adequacy of the District’s Vaughn Index
FOP also argues that the Superior Court should not have granted the District
summary judgment because MPD‘s revised Vaughn index was inadequate. For the
reasons set forth below, we decline to reach this issue.
In its order granting summary judgment to the District, the Superior Court
acknowledged FOP‘s argument that the District‘s Vaughn index33 was incomplete
and appeared to determine that this argument might have merit. The court directed
FOP to provide the District with ―the full list of documents not listed in the Index
to allow [the District] to provide [FOP] with a revised index which includes the
documents not previously listed.‖ And it ordered the District to ―supply a revised
33
The court referred to the Vaughn index, singular, but the District had
produced two indices, one with its October 29, 2010, production and another with
its February 11, 2011, production.
34
Vaughn index within thirty days of [FOP‘s] findings.‖ Nonetheless the court
granted the District summary judgment in full.
When FOP moved for reconsideration, it stated that, pursuant to the court‘s
order, it ―intend[ed] to provide a more comprehensive objection to the District‘s
Vaughn Index.‖ In addition, FOP argued, as it does on appeal, that the District‘s
Vaughn index neither (1) corresponded intelligibly to the production that the
District had made, nor (2) contained sufficient information to justify the District‘s
invocation of the deliberative process privilege. FOP subsequently filed a praecipe
in which it identified 398 documents that it asserted had been redacted but not
listed on the District‘s Vaughn index.
In response, the District filed a praecipe in which it (1) explained that some
of the documents identified by FOP had not been redacted but had been
incompletely produced for other reasons;34 (2) announced that it was reproducing a
number of documents in unredacted form; and (3) disclosed that it had not been
able to locate the unredacted copies of a certain number of documents and thus was
34
According to the District, in some cases ―digital images [had] failed to
load when they were retrieved from [OCTO]‖ and others were missing information
because of particular ―settings on the individual District employee‘s mailbox.‖
35
―unable to address the reasons for their withholding on the revised Vaughn Index.‖
The District subsequently filed a second praecipe attaching a superseding 76-page
―final‖ Vaughn index of all the documents for which it was asserting some
privilege. Months later, the Superior Court denied FOP‘s motion for
reconsideration in a one-page order.
In light of this procedural history, the Superior Court‘s summary judgment
ruling appears to have been premature: the court ruled on the adequacy of the
District‘s Vaughn index even as it directed further litigation about the index‘s
adequacy. Moreover, given the court‘s order to the parties to continue to litigate
this issue after its summary judgment ruling, it is unclear whether the Superior
Court took into account subsequent filings related to the District‘s Vaughn index
when it ruled on FOP‘s motion for reconsideration (which itself was filed before
the District filed its ―final‖ Vaughn index).35 In the absence of adequate assurance
that the Superior Court examined the final Vaughn index in conjunction with the
35
The awkwardness of the situation is highlighted by the briefing to this
court, in which FOP challenges the Superior Court‘s summary judgment ruling by
pointing to deficiencies in the Vaughn index accompanying the District‘s October
29, 2010, production, rather than in the District‘s ―final‖ index.
36
District‘s total production (which is not part of the record on appeal36) we conclude
that the best course of action is to vacate the court‘s summary judgment ruling on
this issue. If continued litigation proves necessary, the parties may raise with the
Superior Court whether the District has ―satisf[ied] its burden to provide ‗a
sufficiently detailed description of what it is refusing to produce and why‘‖ in its
most current Vaughn index.37 FOP Peaceoholics, 79 A.3d at 358 (quoting
Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999)).
36
This is another impediment to appellate review: it precludes us from
determining the force of FOP‘s argument that it cannot match the District‘s
Vaughn index with its production because the production documents are neither
Bates-stamped nor adequately identifiable by other means. It is surprising,
however, that the District has not taken this simple step, particularly given the
documents‘ electronic format. While Bates-stamping is not mandatory, an
agency‘s production must be organized in a way that allows a requester to easily
identify the redacted documents referenced in a Vaughn index. See Vaughn, 484
F.2d at 827-28.
37
In light of our decision to reverse the Superior Court‘s summary
judgment order and leave open certain issues for further litigation as needed, we
vacate the trial court‘s determination that FOP was ineligible for attorney‘s fees.
See Featherson v. Educ. Diagnostic Inst., Inc., 933 A.2d 335, 339 n.4 (D.C. 2007)
(vacating the trial court‘s denial of appellant‘s fee request because, given the
reversal of the trial court‘s substantive ruling, ―a ruling that appellant is not the
prevailing party[,] and therefore[] is not entitled to attorney‘s fees, is premature‖).
If FOP renews its request for attorney‘s fees at the conclusion of this litigation, the
trial court may then determine whether FOP is eligible for fees under the catalyst
theory adopted in Frankel v. District of Columbia Office for Planning & Econ.
Dev., 110 A.3d 553 (D.C. 2015), and, if so, whether an award of fees is warranted
under the four-part test adopted in FOP Lanier, 52 A.3d at 828-32.
37
IV. Conclusion
A FOIA requester and the District entity receiving a request are not—or
should not be—in an inherently adversarial relationship. Litigation is authorized
as an enforcement mechanism, but it is not meant to be the inevitable path. And
yet FOP and the District appear to have tacitly chosen a course of pitched warfare
in the courts. As a result, over the last five years, this court has issued seven
published opinions resolving FOIA disputes between FOP and the District. This
opinion raises that number to eight. Each case has presented its own discrete
issues, but the constant is an apparent inability or unwillingness by both parties to
communicate effectively to achieve the objectives animating FOIA. Both parties
seem to have forgotten what FOIA is all about.
FOP‘s sole interest should be to obtain the documents it has requested. And
yet in this case it ignored preliminary correspondence from MPD inquiring about
its request. Then, six days after MPD produced responsive documents, FOP sued
the District without acknowledging that this production had occurred. Perhaps
FOP had not received MPD‘s letter announcing the production—the record is
unclear—but the salient point is that FOP apparently never contacted MPD‘s FOIA
officer (hardly a stranger to FOP) to inquire about the status of its request. Even
38
after FOP collected MPD‘s initial production, FOP did not review this production
carefully and thus did not notice for over a year that the production described as
1,400 pages only amounted to several hundred. Actions like these cause us to
question whether FOP was more interested in obtaining responsive documents, or
in litigating about obtaining responsive documents.
The District fares no better under our scrutiny. Its interest should be in
fulfilling, to the best of its ability, the open-government objectives of FOIA. And
yet OCTO‘s and MPD‘s correspondence with FOP did not advance that purpose.
OCTO, without basis, told FOP it would not process FOP‘s request. MPD, for its
part, objected that FOP‘s request was vague when it was not and indicated that
additional information was needed to process that request, even though MPD had
already begun to do so. MPD then asserted that it was entitled to more time to
process FOP‘s request under D.C. Code § 2-523 (d) because another agency,
OCTO, had a ―substantial interest in the determination of this request,‖ when
OCTO had no such interest.
And even though MPD ultimately produced two sets of responsive
documents, it did so in a manner apparently designed to ensure defects in
production. MPD claimed that its initial production comprised 1,400 pages of
39
documents, but it presented no records to substantiate this claim, even when FOP
asserted that MPD had turned over only a few hundred pages. And MPD‘s second
production inexplicably took paper form, even though all responsive documents
were electronic and could have been produced in that form (as they ultimately
were). MPD then divided these hard copies—some 16,000 pages of documents—
into ―25 to 35 envelopes,‖ which it mailed to FOP without advance notice,
tracking, delivery confirmation, or proof of mailing. Actions like these suggest
that the District, like FOP, is more interested in gamesmanship than in FOIA
compliance.
While the text of the D.C. FOIA statute does not require the District and
frequent FOIA requesters like FOP to consult in good faith, the course of this
litigation illustrates the imperative to do so. We cannot order FOP and the District
to end their FOIA feuds, but we can require them to engage in mediation so that
they might determine whether settlement is possible, or at least narrow the areas of
dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.)
(authorizing this court, in the disposition of an appeal, to ―direct the entry of such
40
appropriate order, judgment, or decision, or require such further proceedings to be
had, as is just in the circumstances‖).38
For the reasons set forth above, we reverse the order granting summary
judgment to the District and remand this case to the Superior Court with the
directive that it enter an order requiring the parties to engage in mediation before
resuming litigation in this case.
So ordered.
38
We also encourage FOP and the District to meet outside the context of
litigation to discuss how the District‘s FOIA compliance can be improved. We
understand that FOP, as an institutional litigant, provides some service to all
potential FOIA requesters by suing the District to hold it to its obligations under
the statute. But we also recognize that the District, while fulfilling its FOIA
obligations, has a government to run. There are limits to the benefits of litigation,
for both FOP and the District. We urge more communication and collaboration.