Right to Know in D.C.: Press Wins One, Activist Loses Another, In Two Court Battles Over D.C. Police Records and the Freedom of Information Act

After eight months, The Washington Post has won its fight for release of police body-worn camera video showing the June 2017 traffic stop of D.C. Council member Trayon White Sr. (D-Ward 8). Background on the case is here.

And D.C. activist April Goggans has lost her case seeking records (that police say mostly don’t exist) from her experience of several years of police surveillance and harassment at her house in Ward 8 and in the neighborhood.

Trayon White Sr. Case

The parties on March 6 filed a short notice to the court that the case may now be closed because the Post and police “settled all claims.” Without any trial or decision on the merits, there is no legal precedent.

But the press won. An individual familiar with the details told the D.C. Open Government Coalition the D.C. Metropolitan Police Department reversed themselves and released the video. The original incident occurred when police noticed White was driving with no headlights, cited him and also arrested him after finding his license suspended. MPD at first denied the video as exempt under the D.C. Freedom of Information Act claiming release would invade White’s privacy.

The District’s privacy defense went a bit limp when White told a reporter in January that release was OK with him.

According to the same Coalition source, in settling the case MPD also agreed to pay at least part of the attorneys’ fees the Post spent bringing the court case it took to get the video. In a lawsuit lasting over eight months and requiring several rounds of legal paperwork, those costs could be many thousands of dollars.

The video was released with few redactions, according to the source. The Open Government Coalition has been concerned with over-redaction, the MPD practice of releasing body-worn camera video with many details blurred for no clear legal reason (such as license plates of passing cars). See earlier blog post on this subject.

The case did result in a strong opinion of the court in an early round in January when Associate Judge Hiram Puig-Lugo refused to dismiss the case and vigorously rejected the District position that records of elected officials’ off-duty conduct should remain secret. The court found it "difficult to see" and "dubious" there is any personal privacy interest in the details of Council member White's very public traffic stop, while in contrast, "residents of the District of Columbia have a right to know” the details.

This is a message that could be helpful in future administrative appeals, the 200 FOIA cases a year decided not in court but by attorneys in the mayor’s office—attorneys who earlier upheld the MPD denial. There is now a stronger case to reject agency secrecy, that at least records of some off-duty conduct of elected officials should be public.

So, what’s on the video?

It remains to be seen if the Post will now report what happened in those midnight minutes between MPD officers and possibly their most vocal critic among D.C. elected officials—as shown in video the newspaper spent time and money prying loose. After all, the whole basis of the case was the public interest.

The case is WP Company v. District of Columbia, 2018 CA 005576 B.

April Goggans Case

In this case about records of police surveillance of a leader of Black Lives Matter in the District, Superior Court Associate Judge William M. Jackson ruled March 13 that MPD did all an agency should do as it responded to 14 FOIA requests by April Goggans in 2017-18.

The court never gets close to the explosive concerns that underlie the case—involving police overreach and politically-motivated monitoring of activists in recent years. (See the suit filed March 21 by ACLU and Center for Media Justice about FBI failure to fully respond to FOIA requests about surveillance of "black identity extremists.")

Sticking to the narrow question in the lawsuit, whether MPD followed the requirements of D.C. FOIA, Judge Jackson said he was deciding the case without trial since no facts disputed the MPD account. That is, Goggans had shown nothing to contradict the MPD narrative that the agency had “sought information in numerous places and conducted numerous searches in response to plaintiff’s requests. Moreover, the MPD kept [her] informed and turned over in good faith what it believed to be all the responsive documents that were in its possession.”

The MPD did withdraw its initial response in which it refused to confirm or deny there were any relevant records—a response originally honed by the CIA in responding to press inquiries about cold war topics that could reveal covert actions (since even rejection would reveal too much, in effect confirming the subject of the request did exist).

Ultimately several hundred pages were released, but thousands more pages evidently contained some relevant search terms yet were somehow withheld on grounds that evaluation showed them "not responsive." The opinion doesn’t say whether the court, as often happens, asked the agency for copies and reviewed the disputed records in private to assess the agency’s conclusion.

In one hearing, the sides were arguing whether a responsive record must include the specific terms in the request, “surveillance” or “monitoring.” Agencies need not go to great lengths to interpret an obscure request, but if facts were in the record that MPD withheld records just by interpreting Goggans’s request hyper-literally, the D.C. Court of Appeals might be interested to take a second look at the court's conclusion that everything was fine in the agency process.

Aggressive litigation by Goggans’s attorneys from the Georgetown University Law Center Civil Rights Clinic forced MPD into several do-overs including new searches and a deposition, very unusual in FOIA cases, where the MPD FOIA Officer answered questions under oath about exactly what they had done in answering the requests.

But whatever may be the plausibility of skeptics’ general claim that police cover up overly-aggressive and even unlawful spying, apparently Goggans could never show why the court should conclude this search missed a lot. The court noted “[t]he fact that the searches did not turn up more responsive documents does not make the search unreasonable.”

A further FOIA request for the unreleased pages could shed some further light on things.

Attorney Andrew Mandrela from the Georgetown clinic told the Coalition his client has not decided whether to pursue the case further. Any intent to seek review by the D.C. Court of Appeals requires a notice within 30 days of the March 13 decision.  UPDATE:  Notice of Appeal filed April 12.

See also Natalie Delgadillo’s story in DCist. 

The case is Goggans v. District of Columbia, 2017 CA 007926 B.