FOIA Feud Continues Over Attorney Emails

“With some dismay.” the District of Columbia Court of Appeals has remanded and directed mediation of a FOIA claim by the Fraternal Order of Police (“FOP”) against the District that had been dismissed as fulfilled by the trial judge.

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.

The court

And even though MPD ultimately produced two sets of responsive documents, it did so in a manner apparently designed to ensure defects in production. MPD claimed that its initial production comprised 1,400 pages of documents, but it presented no records to substantiate this claim, even when FOP asserted that MPD had turned over only a few hundred pages. And MPD‘s second production inexplicably took paper form, even though all responsive documents were electronic and could have been produced in that form (as they ultimately were). MPD then divided these hard copies—some 16,000 pages of documents into 25 to 35 envelopes,which it mailed to FOP without advance notice, tracking, delivery confirmation, or proof of mailing. Actions like these suggest that the District, like FOP, is more interested in gamesmanship than in FOIA compliance.

While the text of the D.C. FOIA statute does not require the District and frequent FOIA requesters like FOP to consult in good faith, the course of this litigation illustrates the imperative to do so. We cannot order FOP and the District to end their FOIA feuds, but we can require them to engage in mediation so that they might determine whether settlement is possible, or at least narrow the areas of dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.) (authorizing this court, in the disposition of an appeal, to direct the entry of such appropriate order, judgment, or decision, or require such further proceedings to be had, as is just in the circumstances).

The court rejected the District’s interpretation of its FOIA obligations

we reject the District‘s argument that FOP could not challenge in court the adequacy of the District‘s search and production because FOP‘s FOIA request was “void for volume.” Instead we conclude that FOP submitted a request that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s obligations under D.C. FOIA to identify and produce responsive material.

And held insufficient the effort to comply

Turning to OCTO, we know even less—nothing, actually—about its steps to fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its efforts in this case… Given the paucity of information provided by the District about its searches, we conclude that the District has failed to carry its burden to win summary judgment with respect to the adequacy of its search.

Associate Judge Easterly authored the opinion, joined by Associate Judge Fisher and Senior Judge Nebeker. (Mike Frisch)