The Volokh Conspiracy
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D.C. Police Department Allegedly Has Policy of Delaying/Denying FOIA Requests That May Lead to Criticism
A district court just allowed a First Amendment challenge to this policy to go forward.
From Phillips v. D.C., decided Monday by Judge James Boasberg (D.D.C.):
This suit alleges that the District of Columbia's Metropolitan Police Department plays favorites in how it responds to requests for information under the local Freedom of Information Act. Plaintiff Amy Phillips, a public defender, contends that the District unlawfully flags FOIA requests from people critical of MPD, which leads to response delays and denials and constitutes a violation of her First Amendment rights….
Taking the facts as laid out by Plaintiff to be true, which the Court must do at this stage, the genesis of the controversy lies in an Adverse Action Hearing held by MPD's Disciplinary Review Division in March 2019 to adjudicate alleged misconduct by a former officer. Phillips, who is a criminal-defense attorney in the District and an "outspoken critic of MPD," attended the March 2019 hearings and soon after submitted a FOIA request to MPD for tapes and transcripts of the proceedings [as she had done before on other occasions]…. The request was denied in full less than ninety minutes after it was submitted…. After an appeal to the Mayor's Office of Legal Counsel and a suit in D.C. Superior Court that was covered in the local news, MPD began producing documents responsive to Phillips's requests in September 2019, albeit with redactions Plaintiff believes are unwarranted.
In early 2020, Plaintiff began communicating with Vendette Parker, a recently retired MPD FOIA officer, who had worked on Phillips's request when she was still employed by the District. Parker alerted Plaintiff to the Department's unofficial "watchlist policy," which singled out for special treatment FOIA requests that "may lead to criticism" of MPD, in particular those "originating from news reporters or people known to be critical of the department" or for information that could "embarrass the department." Requests within these parameters were flagged for higher-up officials and were often "delayed, denied, or improperly altered." This included Phillips's March 2019 FOIA request, which was flagged both because the records themselves might embarrass MPD and because Phillips had been placed on the Department's "watchlist" based on the content of previous record requests….
Phillips brought this lawsuit against the District, alleging that its policy of "delaying, burdening, or denying" a subset of D.C. FOIA requests constitutes a content- and viewpoint-based restriction of speech in violation of the First Amendment….
[T]he City … [argues that] the First Amendment provides no right to access the documents she seeks, and so the denial of access cannot infringe on rights that never existed. This case, in Defendant's view, is really a statutory one that belongs in Superior Court….
[But] Phillips's argument is that the District has denied her something to which she is statutorily entitled because of her perceived viewpoint, which the District has gleaned from her social-media postings and attendance at certain MPD hearings, as well as the content of her FOIA requests. That government records are the "something" she is being denied here is of no consequence. It has long been recognized that the First Amendment protects against differential treatment, including in the award of public benefits, based on a person's speech. That is no less—and no more—true here. Plaintiff's allegation that she has been denied access to records covered by the D.C. FOIA because of her viewpoint thus constitutes a constitutional injury. The Court will not dismiss her Complaint on this ground either….
[The City also argues] that Phillips has not established a policy or practice of discrimination in violation of the First Amendment; that such policy (if it exists) is content and viewpoint neutral; and that the District's interests in maintaining the policy justify its existence. The District goes 0 for 3.
First, Defendant's assertion that Plaintiff has not established a pattern of discriminatory enforcement of the D.C. FOIA statute misunderstands the nature of her suit. It is correct, of course, that she must demonstrate "a discriminatory policy or practice" to succeed on her claim—but she need not do both. When a discriminatory policy has been alleged [as happened here], "plaintiffs do not need to extrapolate from concrete enforcement actions to determine whether the government has a policy of enforcing the neutral written rule in a content-discriminatory manner." …
Second, even the most cursory review of the [alleged] watchlist policy makes clear that it is not content or viewpoint neutral on its face. According to the Complaint, the District maintained "an unofficial, unwritten policy requiring [FOIA officers] to notify [Chief of Police Peter] Newsham and [Chief Operating Officer] LeeAnn Turner of FOIA requests that may lead to criticism of the department, specifically those originating from news reporters or people known to be critical of the department, or those containing requests for information with the potential to embarrass the department." That evinces a clear intent to apply differential treatment to requests seeking certain content (information that would likely embarrass the police department) and expressing a certain viewpoint (criticism of the department)….
Such content- and viewpoint-based regulations are subject to strict scrutiny and thus offend the First Amendment unless the Government can "prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." … On this record, it can do no such thing. Although the City asserts that it has "a substantial government interest in providing accurate information to the public," and "a compelling interest in maintaining 'close working relationships' between MPD leadership and FOIA staff for high profile requests," the Court is not convinced that it can consider these justifications at the motion-to-dismiss stage or that, if it could, those are sufficiently "compelling" interests to sustain a content-based policy. As Plaintiff points out, furthermore, it is not clear that the watchlist policy is narrowly (or at all) tailored to serving those interests, and Defendant offers little to explain how it is….
Congratulations to Charles Gerstein of Gerstein Harrow LLP, who is representing Amy Phillips in this case.