Brown v. Wash. Metro. Area Transit Auth.

DAVID W. BROWN, Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.

Civil Action No. 19-cv-2853 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

February 18, 2020

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff David Brown initiated this lawsuit in D.C. Superior Court after his two requests for documents from the defendant, Washington Metropolitan Area Transit Authority ("WMATA"), were closed when plaintiff did not accede to defendant's demand that he clarify his requests. Notice of Removal, ECF No. 1, Att. 1 ("Compl.") ¶¶ 6, 9, 25, 27, ECF No. 1-1. In addition, defendant refused to classify plaintiff as a "representative of the news media," which classification is necessary to limit the fees WMATA could have charged him to produce the documents he requested. Id. ¶¶ 18, 37; WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, PUBLIC ACCESS TO RECORDS POLICY ("PARP") § 8.2 (2019).¹ Defendant removed the case to this Court, see Notice of Removal, and has now moved to dismiss the complaint, Def.'s Mot. to Dismiss or, in the Alternative, for Summary Judgment ("Def.'s Mot."), ECF No. 8, for lack of jurisdiction and failure to state a claim upon which relief can be granted, or alternatively, for summary judgment, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 56. See generally Def.'s Mem. of Points and Auths. in Support of Def.'s Mot.("Def.'s Mem."), ECF No. 8. Plaintiff opposes defendant's bricolage motion and seeks partial summary judgment on his claims that WMATA unlawfully refused to categorize him as a representative of the news media. See Pl.'s Cross-Motion for Partial Summary Judgment ("Pl.'s Mot."), ECF No. 14. As explained below, defendant's motion is granted in part and denied in part, while plaintiff's motion for partial summary judgment is denied in whole. Specifically, the defendant properly closed one of plaintiff's two requests and is therefore entitled to summary judgment on that claim, but improperly closed the other, for which defendant's motion for summary judgment is therefore denied. Plaintiff's challenge to defendant's failure to classify him as a news media representative for fee purposes with respect to his one surviving request is dismissed because plaintiff has failed to allege facts that he is entitled to the reduction in fees he seeks.

I. BACKGROUND

On January 27, 2019, plaintiff requested three WMATA handbooks pursuant to that agency's Freedom of Information Act ("FOIA") equivalent, the Public Access to Records Policy. Decl. of Lynn Bowersox ("Def.'s Decl."), Att. A ("Handbook Request") at 11, ECF No. 8-1²; Def.'s Statement of Material Facts ("Def.'s Statement of Facts") ¶ 1, ECF No. 8³; see also PARP § 1.0 (explaining that WMATA "interpret[s] and appl[ies] [PARP] consistent with the federal [FOIA]"). He sought handbooks related to "Metrorail safety rules and procedures," "Metrorail station standard operating procedures," as well as the employee handbook for WMATA's Department of Bus Service. Def.'s Decl., Att. B ("Def.'s Resp. to Handbook Request") at 13,ECF No. 8-1 (capitalization altered). In the request, plaintiff stated that he was "a recognized representative of the news media," had written two books, and was a "regular contributor" to magazines like The Atlantic and The Week. Handbook Request at 11. As a result, plaintiff did "not expect to be assessed any fees" in association with his request because, he asserted, such fees are limited to "duplication fees pursuant to Section 8.2 of the PARP." Id.; see also PARP § 8.2 ("Fees shall be limited to the charges for copying when records are not sought for commercial use and the request is made by . . . a representative of the news media.").

The defendant responded on February 13, 2019, and informed plaintiff that his request, as written, was "unduly burdensome." Def.'s Resp. to Handbook Request at 13. As defendant explained, the requested handbooks contained "detailed information regarding matters . . . that would compromise the safety of WMATA's customers, equipment and facilities if released to the public," including, for example "how to release brakes, silent alarms, [and] emergency response procedures." Def.'s Resp. to Handbook Request at 13. According to defendant, these materials were exempt from disclosure under PARP. Id. Before releasing the handbooks then, sensitive information would have to be redacted, a task defendant estimated would take "approximately 40 hours of staff time" at a cost of $3,681.60. Id. Defendant worried that expending those resources on plaintiff's request and others like it would threaten to "reduce [WMATA] to being full-time investigators on behalf of requesters to the detriment of [its] main mission." Id. Instead of denying the request outright, however, defendant offered plaintiff the chance to "narrow the scope of [his] burdensome request." Id. To this end, defendant provided plaintiff with the title page and the table of contents for each of the requested handbooks, and gave him ten business days, until February 28, to narrow his request or it would be closed. Id. at 13-14.

Defendant also notified the plaintiff that whether he was entitled to a "fee waiver . . . as a member of the media" could not be determined. Id. In order to decide plaintiff's eligibility for a fee waiver under section 8.2 of PARP, defendant needed more information, namely "a written explanation of the purpose" of the request, "a written affirmation" that plaintiff would "use his editorial skills to generate a news article, or other original media content based on" the requested handbooks, and "[p]roof that [plaintiff] is expected to publish a news article related to the records" requested. Id. This information, too, needed to be provided by February 28, 2019, or defendant planned to label plaintiff "a commercial requester for fee categorization purposes." Id. Finally, plaintiff was informed that, if he "wish[ed]," he could "appeal WMATA's decision" to defendant's PARP appeal panel. Id. at 15.

Plaintiff neither narrowed his request nor provided the additional information defendant sought, Def.'s Statement of Facts ¶ 26, so on March 6, his request was closed, id. ¶ 27; Def.'s Decl., Att. C ("Handbook Request Closure") at 19, ECF No. 8-1. Plaintiff did, however, appeal both defendant's "refusal to process [his] request as written" and its "refusal to classify Mr. Brown as a representative of the news media for fee purposes." Def.'s Decl., Att. D ("Handbook Request Appeal") at 25, ECF No. 8-1. On April 3, 2019, his appeal was rebuffed. A panel composed of WMATA's Chief of External Relations, Chief Operating Officer, and Senior Counsel affirmed the initial closure "for the same reasons stated in that decision." Def.'s Decl., Att. E ("Handbook Request Appeal Decision") at 33, ECF No. 8-1. The panel informed plaintiff that he could "appeal [their] decision by seeking injunctive or declaratory relief in any state or federal court in the District of Columbia." Id.

On May 18, 2019, plaintiff submitted his second request to defendant, this time looking for "copies of all records of tips, warnings, or related communications sent to the Metro TransitPolice since 1 July 2018 as part of the 'See Something, Say Something' campaign." Def.'s Decl., Att. F ("Tip Request") at 35, ECF No. 8-1. Again, plaintiff did "not expect to be assessed any fees" owing to his journalistic credentials. Id. As it had with the first request, on June 5, 2019, defendant asked plaintiff to try again. Defendant pointed out that "customers who communicate tips, warnings, etc. do not generally reference the reasons that they have made contact" and saying whether any particular tip was related to the "See Something, Say Something" campaign would be impossible. Def.'s Decl., Att. G ("Def.'s Resp. to Tip Request") at 37, ECF No. 8-1. If plaintiff did not clarify his request, defendant planned to close it ten business days later, on June 20, 2019. Moreover, defendant repeated its demand for additional information related to plaintiff's intended use of the requested materials in order to determine his eligibility for a fee waiver. Id. at 37-38. Plaintiff was given ten days to provide the information or he would be categorized as a "commercial requester" and potentially liable for fees associated with his request. Id. at 38. Once more, defendant alerted plaintiff of his right to an administrative appeal. Id. at 38-39. Again, plaintiff neither clarified his request nor provided the information defendant requested before June 20, 2019, so the request was closed. Def.'s Statement of Facts ¶ 40; Def.'s Decl., Att. H ("Tip Request Closure") at 42, ECF No. 8-1.

Instead, on July 3, 2019, plaintiff once again appealed. He took issue with what, to his mind, was defendant's narrow focus "on its purported inability to ascertain why people made tips." Def.'s Decl., Att. I ("Tip Request Appeal") at 47, ECF No. 8-1. He asserted that no clarification was necessary because it was incumbent on defendant to "interpret[] the request liberally to include all tips . . . about potential security risks" made during the specified time period. Id. He also appealed defendant's "determination that [he was] a commercial requester,"arguing that he had "amply demonstrated that he is a representative of the news media." Id. at 52.

Plaintiff's appeal of his second PARP request fared no better than the first. The administrative appeal panel agreed that, as written, plaintiff's request "failed to reasonably describe the records [plaintiff] sought" because defendant had no way of knowing whether a tip was made in response to the "See Something, Say Something" campaign. Def.'s Decl., Att. J ("Tip Request Appeal Decision") at 61, ECF No. 8-1. Moreover, the panel rejected plaintiff's claim that defendant should have liberally construed his request to include all tips made about security risks during the relevant time period. Id. According to the panel,...