Court Rejects FOIA Requests For Race, Gender Of Supervisors With IA Complaints

In November 2008, the Fraternal Order of Police (FOP) submitted 20 separate Freedom Of Information Act requests to the Washington, D.C. Metropolitan Police Department (MPD) for documents generated in connection with internal disciplinary proceedings against officers of specified upper ranks for particular offenses in particular years. For example, 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.

Eventually, a Court ordered the Department to produce the requested disciplinary files, redacted of information that would identify the subject officers. The FOP 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.” However, the FOP objected to the redaction of the gender, race, and date data related to each complaint. The FOP asserted that it had an interest “in educating and defending police officers faced with disciplinary action, and in ensuring that discipline is being applied equally across racial and gender lines.”

A court of appeals rejected the FOP’s request for disclosure of gender, race, and related event dates. The Court ruled that “there is no dispute that police officers subject to departmental disciplinary proceedings have far more than a de minimis privacy interest in not being publicly identified. The propriety of redactions reasonably necessary to ensure their anonymity is not in doubt. Even with names redacted, the disclosure of other personal information may result in an invasion of their privacy because individuals can often be identified through other, disclosed information and the later recognition of identifying details.

“The FOP argues only that disclosure of gender, race, and related event dates does not implicate the officers’ privacy interest here, ‘because it cannot lead to the identification of the subject officer.’ This argument is categorical in nature; it is not based on the FOP’s contextual analysis of each (or any) challenged redaction to assess whether the withheld information might help it identify the subject officer. On the contrary, the FOP contends that ‘a redaction-by-redaction analysis was not (and is not now) necessary to determine whether it is proper under the D.C. FOIA for the District to redact the race and gender designations and the event dates contained in the subject disciplinary files.’

“This assertion does not persuade us. In the first place, the size and composition of the police force as a whole are irrelevant, because the information that the FOP sought and received was restricted to a small subset of that force, its lieutenants, captains, and other high-ranking officers. And second, what constitutes identifying information regarding a subject must be weighed not only from the viewpoint of the public, but also from the vantage of the FOP’s members who would have been familiar with the MPD’s operations and personnel.

“Given the particularization of the FOP’s individual FOIA requests and with the information disclosed in the files, including the details of the disciplinary infraction, the year (or narrower time frame) in which the infraction occurred, and various other facts, FOP members interested in identifying the subject of the disciplinary proceedings and familiar with the Police Department would have little difficulty winnowing down the possibilities to only a few candidates. It is quite plausible that, in many cases, the additional clues provided by the officer’s gender or race or the specific date of a key event would enable such a curious and well-informed reader to eliminate all but one of those possible suspects. In the absence of any evidence to the contrary, or of bad faith on the part of the MPD, its considered judgment on this score is entitled to respect.”

Fraternal Order of Police v. District of Columbia, 2015 WL 5474117 (D.C. App. 2015).