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FOP v. District of Columbia

Court of Appeals of Columbia District

September 17, 2015

FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE LABOR COMMITTEE, APPELLANT,
v.
DISTRICT OF COLUMBIA, APPELLEE

Argued May 14, 2015

Page 70

Appeal from the Superior Court of the District of Columbia. (CAB-618-09). (Hon. Craig Iscoe, Trial Judge).

Paul A. Fenn, with whom Hannah Kon was on the brief, for appellant.

Mary L. Wilson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.

Before GLICKMAN and BECKWITH, Associate Judges, and NEBEKER, Senior Judge.

OPINION

Page 71

Glickman, Associate Judge.

 This is a post-remand appeal in an action under the District of Columbia Freedom of Information Act (" FOIA" ),[1] in which the Fraternal Order of Police, Metropolitan Police Labor Committee (" FOP" ) obtained files of internal disciplinary proceedings against senior officers of the Metropolitan Police Department (" MPD" ). The FOP challenges the Superior Court's approval on summary judgment of the MPD's redaction of the disciplinary files to protect the anonymity and personal privacy of the officers involved in the proceedings. The principal dispute concerns the MPD's redaction, in some of the files, of

Page 72

the gender and race of the disciplined officers and the dates of relevant events. The FOP agrees that, in accordance with FOIA's personal privacy exemption, the officers should not be identified. It contends, however, that disclosure of gender, race, and related event dates does not implicate a privacy interest because " there is no circumstance" in which such disclosure plausibly could lead to a subject officer's identification in a police force as large as the MPD.[2] We are not persuaded by the FOP's arguments, and we affirm the judgment of the Superior Court.

I. Background

In November 2008, the FOP submitted twenty separate FOIA requests to the MPD for documents generated in connection with internal disciplinary proceedings against officers of specified upper ranks for particular offenses in particular years. Illustratively, one request sought all documents regarding any lieutenant who was disciplined during the year 2007 for " Conduct Unbecoming for inappropriate disciplining of a child or any other similar violation." A separate request sought records of any lieutenant disciplined in 2007 for " Untruthful Statements." Similar requests were made with respect to disciplinary files of police inspectors, captains, commanders, and assistant chiefs. There were separate requests, for instance, relating to any officer at the rank of captain or above disciplined in 2007 for " Absent Without Official Leave," and to any assistant chief disciplined that year for " Neglect of Duty for failure to provide[] direction."

The MPD denied each of the requests, citing the FOIA exemption for " [i]nformation of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." [3] The FOP thereupon brought the present FOIA action. In May 2009, the Superior Court granted summary judgment in the FOP's favor, ordering the MPD to produce the requested disciplinary files, redacted of information that would identify the subject officers. On the District's appeal, we held in an unpublished opinion that the requested documents should be produced under FOIA " if they can be appropriately redacted," and we remanded the case for the trial court to conduct an in camera review " to determine whether the documents when properly redacted are intelligible and of value to the FOP." [4]

A. The District's Initial Production of Redacted Documents for In Camera Review

On remand, the FOP confirmed that it was " not interested in obtaining the personal information of the disciplined MPD officers referenced in the subject disciplinary files," and it agreed that the MPD should redact " names, the officer's rank and district, home addresses, birth dates, social security numbers or other personal identifiers, and physical descriptions of individuals." Even with such redactions, the FOP explained, " the officers' conduct, facts surrounding the conduct, basis for the discipline, aggravating and mitigating factors considered, ...


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