"FOIA Nerd" Lawsuit Survives In Part

The United States District Court for the District of Columbia (Chief Judge Boasberg) has issued an opinion in lawsuit brought by a public defender alleging a civil rights violation in the local police's responses to her FOIA requests

This suit, much like a Rorschach test, looks very different depending on the litigants’ perspectives. For Plaintiff Amy Phillips, a public defender here in the District and an inveterate critic of the local police force, this is a muckraking lawsuit trying to topple a Metropolitan Police Department policy of singling out Freedom of Information Act requests for higher scrutiny based on whether the requesters are friends or foes of MPD. For Defendant District of Columbia, by
contrast, this is a nothing burger about the Department’s justifiable practice of notifying its Chief of Police of requests for high-profile materials so that she can be prepared to answer questions about these incidents and the resulting FOIA demands.

After two years of litigation and a contentious discovery period that produced more disputes than the Court would care to remember, Defendant now moves for summary judgment. It argues that Phillips lacks standing to seek prospective relief, has not established that the policy she wishes to challenge ever existed or caused her harm, and cannot show that this policy is attributable to the District. Phillips cross-moves for partial summary judgment. The Court ultimately delivers a split decision, denying Plaintiff’s Motion while granting in part and denying in part Defendant's.

Plaintiff

Since the bulk of this Opinion deals with Defendant’s Motion, the facts here are set forth in the light most favorable to Plaintiff. Phillips, a self-described critic of MPD and a “FOIA nerd,” ECF No. 54-6 (Dep. of Amy Phillips) at 17:22–18:2, is an attorney with the Public Defender Service here in the District. See ECF No. 63-1 (Pl. SUMF), ¶ 80. She has often taken to X (formerly Twitter) to voice her criticisms of MPD and has also aired her grievances against the department at a D.C. Council hearing. Id., ¶¶ 82–84. Phillips, true to her moniker, is also a frequent user of the D.C. FOIA. See ECF No. 54-1 (Def. SUMF), ¶ 65 (noting that Phillips has made a “hobby of making FOIA demands of MPD”) (cleaned up). Although she alleges that she “uses FOIA to expose police wrongdoing,” Pl. SUMF, ¶ 80, she has also said that she submits FOIA requests to “screw with the police.” ECF No. 54-31 (May 31, 2020, Email Chain Between Phillips and Blanks) at 3.

A history of the FOIA requests is recounted

Readers might be thinking that this suit turns on Defendant’s apparently chronic failure to comply with D.C.’s FOIA. After talking with Parker, however — the same Parker who worked as MPD’s FOIA officer from 2017 to 2020 and rejected many of Phillips’s previous requests, see Def. SUMF, ¶¶ 18, 27 — Plaintiff became convinced that something more sinister was afoot. Specifically, she learned of the existence of a policy of subjecting certain FOIA requests to additional scrutiny.

Hence this lawsuit

Phillips filed her Amended Complaint in September of last year. See ECF No. 42 (Am. Compl.). That pleading, which is the operative one here, contains a single 42 U.S.C. § 1983 count alleging that Defendant violated Plaintiff’s First Amendment rights by delaying or outright denying her requests “on the basis of the content and viewpoint of speech that requesters will voice using the requested information and . . . speech that requesters have voiced in the past.” Id., ¶ 99. Defendants have now moved for summary judgment, and Plaintiff has responded with a Motion for Partial Summary Judgment of her own.

Here

In the end, the Court is not tasked with picking apart Plaintiff’s evidence, making credibility determinations for the various witnesses in the case, or weighing the evidence in the record one way or another. The question it is called to answer is much simpler: has Phillips produced enough to show that “a reasonable jury could return a verdict” for her? Liberty Lobby, 477 U.S. at 248. She did not do so for her request for injunctive relief and thus cannot show that she has standing to obtain such a remedy. The Court, accordingly, will grant Defendant’s Motion to that extent. But she has met her burden as to the rest of her case, so the Court will not grant Defendant summary judgment on this part of Phillip’s cause of action. 

(Mike Frisch)