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Fraternal Order of Police, Metropolitan Labor Committee v. District of Columbia

Court of Appeals of Columbia District

January 2, 2014

FRATERNAL ORDER OF POLICE, METROPOLITAN LABOR COMMITTEE, Appellant,
v.
DISTRICT OF COLUMBIA, Appellee.

Argued June 4, 2013.

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[Copyrighted Material Omitted]

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Paul A. Fenn, with whom Erinn M. Maguire, Baltimore, MD, was on the brief, for appellant.

Mary L. Wilson, Senior Assistant Attorney General, Office of the Solicitor General, with whom Irvin B. Nathan, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.

Before GLICKMAN and McLEESE, Associate Judges, and REID, Senior Judge.

REID, Senior Judge:

This appeal arises out of a Freedom of Information Act (" FOIA" ) request made by appellant, the Fraternal Order of Police, Metropolitan Police Labor Committee (" FOP" ), for certain documents related to the " Intoxilyzer 5000EN," a device used by the Metropolitan Police Department (" MPD" ) to measure the amount of alcohol in a suspect's breath. Appellee, the District of Columbia, initially denied the request on the basis of the FOIA exemption for " investigatory records compiled for law enforcement purposes," set forth in D.C.Code ยง 2-534 (2010 Supp.); [1] the District's investigation related to errors in the

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Intoxilyzer measurements that resulted in reversals of some convictions for driving while under the influence. In response to the denial of its FOIA request, FOP filed a complaint in the Superior Court against the District, alleging FOIA violations and seeking declaratory and injunctive relief, as well as attorneys' fees and costs. Following the completion of its investigation and during the litigation proceedings, the District produced numerous documents and denied the request for others on grounds of privilege (attorney-client, deliberative process, and work product).[2] Despite numerous issues presented in the trial court by the parties, the court narrowed the issue to the District's initial denial of FOP's document request. FOP appeals the trial court's rejection of its challenge to the District's initial denial of its request under the investigatory records exemption; and in response to the District's argument that the case is moot, FOP continues to preserve its trial court argument regarding the adequacy of the District's subsequent FOIA disclosures.

First, we hold that the case is not moot because the trial court has not determined whether the District sustained its FOIA burden by disclosing all of the requested documents to which FOP is entitled. Second, we conclude that FOP has not forfeited its challenge to the adequacy of the disclosures that the District made subsequent to its initial response to FOP. Third, we hold that the trial court erred by granting the District's motion for summary judgment. Accordingly, for the reasons stated below, we vacate the trial court's order and remand this case for further proceedings consistent with this opinion.

FACTUAL SUMMARY

Relevant background for this appeal reveals that in addition to this FOIA case concerning MPD's use of the Intoxilyzer 5000EN to determine whether persons who had been stopped by police officers were driving while under the influence of or impaired by alcohol, civil cases pertaining to allegedly erroneous breathalyzer readings were proceeding through the federal district court for the District of Columbia. At various times during the first half of the year 2010, approximately twenty persons sued the District of Columbia and MPD Officer Kelvin King in federal district court, alleging constitutional violations due to their convictions for driving while intoxicated (" DWI" ). Those cases were consolidated. See Molina-Aviles v. District of Columbia, 824 F.Supp.2d 4, 5 n. 1 (D.D.C.2011).

The consolidated federal case showed that Officer King, head of MPD's Impaired Driver Support Unit, was " responsible for calibrating the breath test machines and

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testing them for accuracy." Id. at 6. He had been assigned that responsibility for several years.[3] The plaintiffs alleged that they were convicted due to incorrect Intoxilyzer readings, and they averred that the District had announced on February 26, 2010, its awareness of " a potential problem with the accuracy of the [Intoxilyzer] machines." Id. at 7-8. The convictions of most of the plaintiffs were vacated or dismissed in the Superior Court. On November 14, 2011, the district court denied Officer King's motion to dismiss, without prejudice. Id. at 6.

At some point prior to the FOIA request in this case, MPD hired a consultant, Ilmar Paegle, to assist with the breathalyzer program. Mr. Paegle determined that the Intoxilyzer was giving inaccurate readings. In response to the controversy concerning the accuracy of the Intoxilyzer readings MPD opened an investigation, focusing on Officer King, and FOP sought documents relating to the Intoxilyzer.[4]

FOP submitted its FOIA request to MPD and the Office of the Chief Technology Officer (" OCTO" ) on April 21, 2010. FOP asked for nine categories of materials, and its letter specifically referenced Officer King:

1. Any and all documents from October 1, 2008 to April 1, 2010, related to any quality control problems, and or calibration problems with the Intoxilyzer 5000EN[ ] utilized by the Metropolitan Police Department.
2. Any and all documents sent from the [MPD] to the District of Columbia's Attorney[ ] General['s] Office related to any quality control problems, and or calibration problems with the Intoxilyzer 5000EN[ ] utilized by the [MPD] from October 1, 2008 to April 1, 2010.
3. Any and all documents, emails, and attachments sent or received, from Assistant Chief Patrick Burke's [MPD] email address [ ] from October 1, 2008 to April 1, 2010, relevant to the [MPD] Intoxilyzer 5000EN.
4. Any and all documents, emails, and attachments sent or received, from Assistant Chief Patrick Burke's [MPD] email address [ ] from October 1, 2008 to April 1, 2010, related and relevant to any quality control problems, and or calibration problems with the MPD's Intoxilyzer 5000EN.
5. Any and all documents, emails, and attachments sent or received, from Assistant Chief Patrick Burke's [MPD] email address [ ] or any member of his staff, to the Office of the Attorney General['s] Office, related and relevant to any quality control problems, and or calibration problems with the MPD's Intoxilyzer 5000EN from October 1, 2008 to April 1, 2010.
6. Any and all documents, emails and attachments sent or received from Mr. James Austrich's [MPD] email address [ ] from October 1, 2008 to April 1, 2010, related to any quality control problems with the Intoxilyzer 5000EN.

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7. Any and all documents, emails and attachments sent or received from Mr. Ilmar Paegle's [MPD] email address [ ] from October 1, 2008 to April 1, 2010, related to any quality control problems, and or ...

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