New FOIA Lawsuit Challenges $862,000 Bill for Electronic Police Records Already Required to Be Public And A Broken Appeal System

The Metropolitan Police Department in Washington, D.C., by law, must keep a record of all arrests, stops, and other police-involved incidents and the records “shall be open to public inspection when not in actual use.”  (No public records request needed and no exemptions and redactions.) Originally kept by pen and ink in an “arrest book” at each station, officers’ reports now are done electronically and stored in a citywide database that can be queried to produce a printout of any incident, referred to as Form PD-251. The D.C. courts for years have recognized the longstanding right of public access to guard against secret arrests.

So, if you need a police report, such as to show your insurance you reported a break-in, you can get it just by asking, as MPD explains here.

But ask for more than one, and you’re in for multiple illegal roadblocks according to a new lawsuit filed last month in D.C. Superior Court by Civil Rights Corps (CRC). This D.C. nonprofit has prevailed against flawed police and court practices in landmark cases nationwide since its founding in 2016.

The group asked for all available PD-251 forms. But MPD responded not with records but a bill for over $862,000 payable in advance.

The CRC said in its court papers that the “astronomical” fee was the MPD cost estimate for 23,000 hours’ work to search, review, and make copies of 1.7 million records. CRC says the amount is unlawful (since FOIA fees must reflect actual costs only), and the records are in an electronic database specifically advertised as allowing mass downloads. CRC offered free help if MPD couldn’t manage that database feature they found in the vendor’s published description of its product. Thus, according to the lawsuit, the actual cost of the request will be, at most, a thousand dollars or less.

With only a few facts disputed about accessing the data, the conflict seems suited to the straightforward FOIA denial appeal process provided in D.C. law — a fast, free, and generally fair administrative (non-court) review. But the lawsuit says that didn’t work either.

The Mayor’s Office of Legal Counsel that decides appeals, CRC alleges, ignored the law mandating a 10-day turnaround to issue an opinion. Instead, it waited for an MPD reply (that never came), ignoring its own warning to MPD that it would decide anyway if the agency didn’t answer fast. The CRC court filing cites multiple prior appeal delays, calling the accumulated experience clear evidence of “a policy and practice of disregarding its statutory deadlines,” and asking the court to order the mayor to obey the law.

The case raises longstanding issues. MPD records fees such $3 million in the ACLU stop and frisk data suit and $6,000 in Denise Krepp’s request for juvenile street stop video in her own Capitol Hill ANC district, and the general charge in the Phillips case of manipulating time and cost to discourage requesters on an “enemies list,” have brought to light whether calculations are in good faith. Conclusive evidence is lacking (though the Phillips case–see update here–continues). Delay is more clearcut: the Open Government Coalition has asked the D.C. Council to address backlogged FOIA appeals as high as 200-300 in two years of testimony, as recapped in this July blog post, and a committee has twice urged the mayor to follow the law concerning timely opinions.

The MPD FOIA office handles far more requests than any D.C. agency, but FY22 statistics (the latest year with full data) suggest a general need for support and resources to improve performance. For example:

• Delay: Of almost 2,000 requests MPD processed (nearly 20 percent of the citywide total), about 40 percent were late, and over 500 were very late (taking more than 26 days).
• End of year backlog: MPD began the year with over 200 and ended with over 300 (average wait 225 days); only one agency had more.
• Denials: Over 70 percent of requests got adverse responses (denied in whole or part or no records found). The Open Government Office held in 2020 that MPD over-redacts due to an incorrect reading of the law of privacy, and the Open Government Coalition renewed concern on the subject in oversight testimony this year.
• Appeals: Disappointed requesters appealed more denials by MPD than by any other agency, and the mayor reversed more decisions by MPD than by any other.  
• Litigation: Of 29 active FOIA lawsuits in Superior Court, half were challenging MPD decisions.

D.C. has yet to respond to the suit. It is Civil Rights Corps v. D.C., Case No. 2023-CAB-004258, assigned to Associate Judge Milton C. Lee. The first court date is October 13, 2023, at 9:30 via WebEx.