Fraternal Order Police v. Dist. of Columbia

124 A.3d 69

FRATERNAL ORDER OF POLICE, METROPOLITAN POLICE LABOR COMMITTEE, Appellant,

v.DISTRICT OF COLUMBIA, Appellee.

No. 13–CV–1333.

District of Columbia Court of Appeals.

Argued May 14, 2015.

Decided Sept. 17, 2015.

Paul A. Fenn, with whom Hannah Kon, Baltimore, MD, was on the brief, for appellant.

Mary L. Wilson, Senior Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.

Opinion

GLICKMAN, Associate Judge:

This is a post-remand appeal in an action under the District of Columbia Freedom of Information Act (“FOIA”),¹in which the Fraternal Order of Police, Metropolitan Police Labor Committee (“FOP”) obtained files of internal disciplinary proceedings against senior officers of the Metropolitan Police Department (“MPD”). The FOP challenges the Superior Court's approval on summary judgment of the MPD's redaction of the disciplinary files to protect the anonymity and personal privacy of the officers involved in the proceedings. The principal dispute concerns the MPD's redaction, in some of the files, of the gender and race of the disciplined officers and the dates of relevant events. The FOP agrees that, in accordance with FOIA's personal privacy exemption, the officers should not be identified. It contends, however, that disclosure of gender, race, and related event dates does not implicate a privacy interest because “there is no circumstance” in which such disclosure plausibly could lead to a subject officer's identification in a police force as large as the MPD.²We are not persuaded by the FOP's arguments, and we affirm the judgment of the Superior Court.

I. Background

In November 2008, the FOP submitted twenty separate FOIA requests to the MPD for documents generated in connection with internal disciplinary proceedings against officers of specified upper ranks for particular offenses in particular years. Illustratively, one request sought all documents regarding any lieutenant who was disciplined during the year 2007 for “Conduct Unbecoming for inappropriate disciplining of a child or any other similar violation.” A separate request sought records of any lieutenant disciplined in 2007 for “Untruthful Statements.” Similar requests were made with respect to disciplinary files of police inspectors, captains, commanders, and assistant chiefs. There were separate requests, for instance, relating to any officer at the rank of captain or above disciplined in 2007 for “Absent Without Official Leave,” and to any assistant chief disciplined that year for “Neglect of Duty for failure to provide[ ] direction.”

The MPD denied each of the requests, citing the FOIA exemption for “[i]nformation of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”³The FOP thereupon brought the present FOIA action. In May 2009, the Superior Court granted summary judgment in the FOP's favor, ordering the MPD to produce the requested disciplinary files, redacted of information that would identify the subject officers. On the District's appeal, we held in an unpublished opinion that the requested documents should be produced under FOIA “if they can be appropriately redacted,” and we remanded the case for the trial court to conduct an in camerareview “to determine whether the documents when properly redacted are intelligible and of value to the FOP.”⁴

A. The District's Initial Production of Redacted Documents for In CameraReview

On remand, the FOP confirmed that it was “not interested in obtaining the personal information of the disciplined MPD officers referenced in the subject disciplinary files,” and it agreed that the MPD should redact “names, the officer's rank and district, home addresses, birth dates, social security numbers or other personal identifiers, and physical descriptions of individuals.” Even with such redactions, the FOP explained, “the officers' conduct, facts surrounding the conduct, basis for the discipline, aggravating and mitigating factors considered, evidence included in the record or submitted at any hearing, and the actual discipline imposed will all be disclosed.”

This information, the FOP proffered, would be useful in its efforts to “educate, prepare, and defend police officers who are faced with disciplinary action” and to “ensur[e] that the MPD disciplines officers in a consistent and just manner.”

Pursuant to the court's direction, to carry out our instructions on remand, the District submitted five sample disciplinary files, in both a redacted and an unredacted format, for in camerareview. The files in this initial production comprised thousands of pages. The District provided the redacted set to the FOP as well.

At a status hearing on June 22, 2012, the FOP confirmed that the redacted files were intelligible and of value to it. Nonetheless, it argued that the MPD had redacted more information than necessary to protect the unidentified officers' anonymity and personal privacy. The FOP gave the court and the MPD a binder of pages from the five sample files displaying what it considered to be excessive redaction. In some instances, entire sentences or paragraphs had been blacked out. For its part, the court expressed the preliminary view that the MPD's redactions appeared to be generally reasonable, apart from some obviously inadvertent mistakes (which the District conceded). The court directed the parties to confer and try to agree on which redactions were appropriate.

A month later, at the next status hearing, the parties reported having made progress, but some redactions in the five sample files were still in dispute.⁵Stating that, in general, it found the MPD's remaining redactions to have been reasonable, the court cautioned the District not to be “overly active in redacting” and urged the parties to continue working to resolve their outstanding disagreements. The District agreed to produce the rest of the disciplinary files covered by the FOIA request.

B. The Redactions in the District's Production of the Remaining Responsive Files

On December 14, 2012, the parties appeared before the court once again. By this time, the District had produced redacted copies of all the remaining disciplinary files (in what the parties have referred to as the District's second production, to distinguish it from the initial production of five sample files). But disagreements remained regarding the District's redactions, which the parties addressed at the hearing and in subsequent briefing.

First, claiming that the sample files in the District's initial production had been redacted more heavily than the 26 files in the second production, the FOP argued that this inconsistency demonstrated that the sample files had been over-redacted and needed to be re-produced with fewer deletions. The District disagreed, contending that the sample files had been redacted in accordance with FOIA's requirements even if they did contain more redactions than the other files.

Second, despite its prior agreement that the District should redact physical descriptions and other identifiers of officers involved in the disciplinary proceedings, the FOP objected to the redaction of references to gender, race, and event dates in some of the documents in the two productions. It argued that this information could not reveal the identities of any officers, given that the police force had nearly 4,000 members. In response, the District explained that the MPD had removed references to gender, race, and event dates in the disciplinary files only where it believed the information actually would enable the FOP and its members to identify the officers in question. Identification would be easier than the FOP suggested, the District argued, because the FOIA requests targeted disciplinary proceedings involving only higher ranking officers, who constituted a subset of the police force.

C. The Superior Court's Ruling

The court ruled on the FOP's objections at a hearing on August 30, 2013. Regarding the sample files produced for in camerainspection, the court stated that it had “exhaustively” performed “a very detailed,” “comprehensive” examination of all of the submitted documents in unredacted and redacted form. Based on that examination, the court concluded that all the redactions were proper, regardless of whether there were fewer redactions in the files subsequently produced. The court therefore rejected the FOP's call for the District to re-redact and re-produce the first group of five disciplinary files.

The court also upheld the MPD's excision of references to gender, race, and event date in order to prevent unwarranted invasions of personal privacy. It was not persuaded by FOP's contention that these redactions were unnecessary to protect the anonymity of disciplined officers in view of the total size of the police force. “[I]n many cases,” the court found, the revelation of gender, race, or date information could enable the FOP to identify individuals involved in the disciplinary proceedings, and the risk of such identification by FOP members with “specialized knowledge” of the MPD or personal familiarity with the disciplined officers was “not trivial.” For example, the court noted, the FOP might have little difficulty overcoming the anonymity of an officer with “a relatively uncommon combination of race and gender ..., particular[ly] if it's possible to determine what district the officer was assigned in, dates [o]n which [the officer] worked,” or other facts that would aid the identification process. The court emphasized that the MPD had not applied an “inflexible policy” of redacting allreferences in the disciplinary files to gender, race, and date, because it appropriately recognized that the risk of identifying a subject officer varied from case to case.

The court further found that the personal privacy interests implicated by the redactions ...