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Fraternal Order Of Police, Metropolitan Police Labor Committee v. Columbia

Court of Appeals of Columbia District

May 26, 2016

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

          Argued April 21, 2015

         Appeal from the Superior Court of the District of Columbia (CAB-8401-10) (Hon. Erik P. Christian, Trial Judge)

          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.

         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.

          OPINION

          Catharine 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 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 "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 request and asked it to search for variations of three names (Mark Tuohey, "Erick [sic[3] 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.

         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 "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 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 "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 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 accounts[11]: "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 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 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 format[13] 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 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 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 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 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 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 ...


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