D.C. Transparency Watch: New Report and Court Case Highlight Issues in Local Access to Federal Prosecutors' D.C. Crime Stats

11-13-16.  UPDATED TO SHOW REVISED HEARING DATE FOR KREPP v. DOJ (12-14-16, 10:30).

Echoing concerns in recent months in a pending federal lawsuit and repeated by a former D.C. Attorney General, a new report again cites the U.S. Attorney here for lack of transparency. This time, for failing to provide data on prosecutions of sexual assaults.

An expert consultant for the Mayor’s Office of Victim Services reported she found it “extremely difficult” to get information needed for her analysis of progress by police and prosecutors since the Council passed the Sexual Assault Victims Rights Amendment Act of 2014. The law mandated her position and reports.

The consultant, Elisabeth Olds, explained in her October 25 report “Sexual Assault Prosecution Data in the District of Columbia” that access even to aggregate data has been “contentious” for three years.

The U.S. Department of Justice that oversees the U.S. Attorney declined the consultant’s public records requests on privacy grounds even though she believed “no victim-specific information was sought.” The consultant then gave the U.S Attorney a list of all sexual assault cases in 2015 and asked simply to be given the case outcomes, but she reports the office never even replied.

The consultant report did note the U.S. Attorney provided information in a handful of cases earlier and also participates in other collaborations and information-sharing within law enforcement mandated by the new law.

Her report, centered on police and court records for 671 sexual assault reports to MPD in 2015, showed that after investigation, police asked for 235 warrants but prosecutors approved only 42. Of 189 sexual assault arrests (based on probable cause found at the scene or later warrant), 124 cases went to court. Even without prosecutors’ data, the consultant’s report was able to present a detailed picture of the history of the cases and connect that with survivors’ experiences with police and prosecutors. The report concludes with recommendations for better data (outcomes as in the present report reported annually and publicly) and also improvements in explaining case decisions to individual survivors. According to the expert, many in 2015 experienced such “extreme displeasure” with those encounters that it limits “survivor and community trust in the system as a whole.”

Issues of U.S. Attorney's Office Data Communication Raised Earlier, Now in Court

Capitol Hill Advisory Neighborhood Commissioner Denise Krepp in 2015 criticized the U.S. Attorney’s Office for its response to her requests for data to keep neighbors informed of prosecutors’ response to crime trends.

According to her lawsuit filed in federal court in May, “[b]ecause the District of Columbia is unable to have its own local criminal prosecutor (who would be accountable to the voters and or the Mayor), Ms. Krepp had to resort to filing her [federal public records] request to obtain the type of data that should be readily available to the public. Despite a significant public interest in the data, the DOJ has ignored its obligation to be transparent to the public, and has instead chosen to stonewall Ms. Krepp, refusing to provide even the most basic prosecutorial data” – especially “information about how often its USAO attorneys are moving forward with criminal prosecutions.”

Former D.C. Attorney General Irv Nathan in a Washington Post op ed in February catalogued problems in the U.S. Attorney’s office here and analogized them to state officials who bungled the water problems in Flint, Michigan -- “appointed outsiders with little or no accountability to the local population.”

In making his case for a D.C. prosecutor, Nathan noted the problem of access to information on how the justice system is working here—pointing to the “admission” by the U.S. Attorney (originally reported in the Post December 12, 2015) that it had “no way to answer a D.C. citizen’s request” for records on arrests and prosecutions (referring to the Krepp request).

Nathan called that response a demonstration of the lack of accountability accompanying “the antiquated and undemocratic situation” that Congress created in retaining federal prosecution of major D.C. crimes when passing D.C. home rule. He urged that now should change, especially after Congress allowed the local ballot initiative resulting in "a highly competent, elected D.C. attorney general, Karl Racine."  (In September 2016, federal and D.C. officials reached agreement to transfer prosecution of some lesser crimes (not felonies) to the District attorney general. Effective October 1, D.C. will pay for eight prosecutors to be located in the U.S. Attorney's Office for local misdemeanors.)

The government has responded to the Krepp lawsuit and moved that it be dismissed without trial. In court papers, officials deny they refused to hand over existing records; they say they simply have none responsive to her request (data sorted by ward) and that Krepp never responded to their invitation to submit a new request for records in available formats such as by police district.

Krepp in her own court papers says, in effect, that's bureaucratic rigmarole unsuited to the spirit of open records laws, and that DOJ should have worked with her rather than spurning her request and subsequent appeal:

The data DOJ admits it has, which is sorted instead by police service area and/or police district instead of ward, would have sufficed to fulfill Ms. Krepp’s request and would have met the legal standards for the interpretation of FOIA requests. Instead of simply providing this data, DOJ decided to continue stonewalling Ms. Krepp.  

Senator Charles Grassley (R-Iowa), a keen watchdog over government accountability, forwarded Krepp’s request to DOJ. This time, to a senator's request, the response was not a brush-off and an invitation to resubmit but instead the alternative data was readily forthcoming.  Ms. Krepp's court papers don't hesitate to raise the question why the DOJ didn't extend her the same courtesy in the first place.

A hearing on the case is set for December 14 at 10:30 a.m. before Judge Katenji Brown Jackson in Courtroom 17.

The expert report is available at the D.C. Office of Victim Services and Justice Grants website. Available at the link below is the complaint initiating the case of Krepp v. U.S. Department of Justice. It is Case No. 16-cv-00926 (KBJ) in U.S. District Court for the District of Columbia.