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Frankel v. District of Columbia Office for Planning & Economic Dev.

Court of Appeals of Columbia District

February 12, 2015

DAVID P. FRANKEL, APPELLANT,
v.
DISTRICT OF COLUMBIA OFFICE FOR PLANNING AND ECONOMIC DEVELOPMENT, APPELLEE

Submitted May 13, 2014

Amended March 5, 2015.[*]

As Corrected March 4, 2015.

Appeal from the Superior Court of the District of Columbia. (CAB-312-10). (Hon. Judith Bartnoff, Trial Judge).

Alan B. Frankle was on the brief for appellant.

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

Before WASHINGTON, Chief Judge, BECKWITH, Associate Judge, and KING, Senior Judge.

OPINION

Page 554

Beckwith, Associate Judge.

David Frankel appeals from an order granting in part and denying in part his application for attorney's fees in his Freedom of Information Act suit against the District of Columbia Office of the Deputy Mayor for Planning and Economic Development. The trial court ruled that Mr. Frankel was eligible for and entitled to attorney's fees, but it did not award all the fees that Mr. Frankel sought. Mr. Frankel argues on appeal that the trial court abused its discretion by denying attorney's fees for time spent preparing three motions that were either denied or never filed. We agree, and we reverse and remand for proceedings not inconsistent with this opinion.

I. Factual Background

In 2008, the D.C. Office of the Deputy Mayor for Planning and Economic Development (ODMPED) announced plans to

Page 555

construct a new library and a private multi-story residential building on the site of the old Tenley-Friendship Neighborhood Library and the soccer field of the adjacent Janney Elementary School in Northwest Washington, D.C. On December 9, 2009, Mr. Frankel submitted a request to ODMPED under the D.C. Freedom of Information Act (FOIA), D.C. Code § § 2-531 to -540 (2012 Repl.), to obtain public records relating to this development.[1] ODMPED did not respond within the fifteen days allowed by the statute. See D.C. Code § 2-532 (c). On January 21, 2010, Mr. Frankel sued ODMPED pursuant to D.C. Code § 2-537 (a-1) to compel a response. ODMPED filed an answer on February 18, 2010, without responding to Mr. Frankel's FOIA request.

On April 22, 2010, the day before a scheduling conference with the trial court, ODMPED disclosed fifty-nine emails to Mr. Frankel. At the conference, the trial court ordered ODMPED to file a dispositive motion, an affidavit describing the record searches it had performed, and a Vaughn index[2] by May 21, 2010. ODMPED filed a motion for summary judgment on May 21, supported by an affidavit of FOIA Officer Mary Margaret Plumridge. ODMPED argued that it had complied with Mr. Frankel's request and that all the documents it withheld were exempt from disclosure under the deliberative process or attorney-client privileges. Mr. Frankel first responded by sending ODMPED a motion seeking Rule 11 sanctions for allegedly making false statements in its summary judgment motion. See S.Ct. Civ. R. 11 (c). ODMPED then filed a praecipe clarifying several statements in the motion. Mr. Frankel did not file the Rule 11 motion with the court.

Mr. Frankel next responded by filing a motion to strike the Plumridge affidavit because of, among other things, vagueness, lack of personal knowledge, and a deficient Vaughn index. ODMPED responded by filing two supplemental affidavits from Ms. Plumridge and another FOIA Officer, Sean Madigan, as well as a new Vaughn index listing more withheld documents. Mr. Frankel learned from the supplemental affidavits that ODMPED had not searched the files of several people listed in the FOIA ...


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