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Pulling public records out of the Metropolitan Police Department can be maddeningly difficult, particularly if they regard a public official. It’s almost as if you have to be a major newspaper with the resources to pay attorneys to sue the government to get access to records in the public interest.
Consider, for example, the recent lawsuit filed by the Washington Post seeking body camera footage of Ward 8 Councilmember Trayon White’s 2017 arrest. As LL previously reported, the Post sued the District after MPD denied a reporter’s request for the footage, and after the paper appealed that decision to Mayor Muriel Bowser.
Bowser, through her Office of Legal Counsel, denied the appeal, writing in a letter to the reporter that White has a “strong privacy interest in not being associated with alleged criminal activity.”
An MPD officer stopped White in June 2017 for driving with his headlights out less than a block from his office at the Wilson Building. He was arrested for driving with a suspended license, but the charges were later dropped. White previously told LL that “D.C. should just go ahead and release the footage.”
The case was settled out of court last month. Kris Coratti, the Post’s Vice President of Communications and Events, says the paper has received the footage, but she declined to answer questions about settlement negotiations.
A spokesperson for the D.C. attorney general’s office says the District will pay $15,000 to cover the Post’s attorney fees.
So far, the newspaper has not published the footage, and LL’s repeated attempts to get his hands on it have been met with bureaucratic delay.
A Freedom of Information Act specialist handling the request has acknowledged that the footage was released to the Post and therefore should be immediately releasable to anyone else, but the specialist has declined to do so without approval from a supervisor. City Paper left a message with the supervisor, who did not call us back.
When LL first wrote in January about the Post’s lawsuit, some open government advocates were hopeful that a judge’s decision in the newspaper’s favor could lead to a precedent that leads to greater transparency.
But because the case was settled without a judge’s final order, that optimism crumbles a bit.
“The case shows that there can be a strong public interest in records about elected officials, even off duty, that should send a message to the D.C. government that they can’t get away with blanket denials anymore,” says Fritz Mulhauser, a local attorney familiar with FOIA litigation. “There’s not something you can take to the bank in a future lawsuit, but you can certainly jawbone the mayor’s office and say the one opinion in this case, while not binding, suggests blanket rejections like they’ve tried may not work anymore.”
That one opinion came from D.C. Superior Court Judge Hiram E. Puig-Lugo in response to the District’s attempt to have the Post’s lawsuit thrown out.
“There is no personal privacy interest in the circumstances of a traffic stop that took place in a public space for anyone in the area to see,” Puig-Lugo writes. “Even if such a privacy interest were found, the public interest in clarifying interactions between Councilmember White and MPD, as well as the propriety of police officers during the encounter weigh in favor of disclosure.”
It doesn’t appear that Puig-Lugo’s decision has had much impact on MPD’s habit of denying requests for information in favor of public officials’ personal privacy.
In the past month LL has requested police reports related to two sitting councilmembers and was denied in both instances on the grounds that the release of such records would invade their personal privacy.
The first request, born of a tip that a councilmember’s vehicle may have been involved in a collision in February, was initially denied. City Paper is not identifying the councilmember because the tip has not been confirmed.
In its denial, MPD cited the personal privacy exemption to the public records law.
Asked whether MPD had performed a search and then determined that the records were exempt, or whether no records existed, a FOIA officer agreed to re-open the request and “double check if there are any records that can be released.” LL is waiting for a response.
The second request sought reports referencing White in 2019. White’s BMW had been involved in an alleged hit-and-run collision. In a statement, White said a friend borrowed his car and that he’d filed a report with police. This week, 28-year-old Sergio Hill was charged in D.C. Superior Court with leaving the scene of a collision and driving without a license.
Again MPD denied LL’s request, but this time the department refused to even acknowledge the existence of such records.
“The Metropolitan Police Department (MPD) can neither admit or deny the existence of such records. To do so, would constitute as a clearly unwarranted invasion of personal privacy,” an MPD FOIA officer writes via email.
An MPD spokesperson, Kristen Metzger, explains further that the D.C. Drivers Privacy Protection Act prevents the department from releasing identifying information in a vehicle accident report. Metzger also says LL’s requests were likely denied because they lacked specific date ranges and “are considered fishing for records.”