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Don Padou's ANC Accountability Project!

Tuesday, August 5, 2014   (0 Comments)
Posted by: Joe Libertelli
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Alum Don Padou, '11, has been busy keeping the District and its local Advisory Neighborhood Commissions accountable, winning favorable DC Superior Court decisions in two Freedom of Information Act cases.  

In a case of first impression, Vining v. DC, DC Superior Court Judge Nash held that government officials cannot avoid their FOIA obligations by using non-government hosted email accounts such as Yahoo and Gmail.  

Plaintiff, Kirby Vining, submitted a FOIA request seeking emails sent and received by an Advisory Neighborhood Commissioner using a Yahoo email account.  The District argued that such emails were not "public records" subject to disclosure under the FOIA.  Judge Stuart Nash ruled from the bench on June 27, 2014 that "public record" under DC's FOIA is broader than "agency record" as that term is used in federal FOIA cases.  Judge Nash found that the emails at issue were "public records" and ordered them produced in 30 days.

Rather than produce the emails, the District moved for reconsideration arguing that the ANC Commissioner was not a "public body."  The motion for reconsideration is still pending.

In a second case, Crimmins v. District of Columbia Advisory Neighborhood Commission 5B, DC Superior Court Judge Michael O'Keefe held that an audio recording of an ANC Commissioner's public meeting was a public record under the FOIA even when the recording was made with a digital recorder owned by the ANC Commissioner.

Plaintiff, Conor Crimmins, sought documents related to ANC 5B's opposition to a liquor license.  Among the documents that ANC 5B refused to provide to Mr. Crimmins were copies of the resolution passed by the ANC opposing a liquor license and a packet of documents provided to each Commissioner prior to the vote on the resolution.  Mr. Crimmins moved for a preliminary injunction, a first in FOIA litigation in the District, and prevailed.

The litigation continued over an audio recording Made by Commissioner Carolyn Steptoe of a public meeting that she held in April 2013 at which the main topic was the pending liquor license application.  The District argued that the audio recording was not a "public record" because it had been created with Commissioner Steptoe's own recorder.

Judge O'Keefe found that it is the content of a record and not its format or the means of  creation that determines whether or not the record is subject to FOIA.  Judge O'Keefe held that the recording was made in connection with Commissioner Steptoe's official duties and, therefore, was a public record subject to disclosure.  According to Don, Commissioner Steptoe sought to destroy the recording rather than comply with the Court's order.  Judge O'Keefe ordered Vestigant, a forensic computer firm, to try and recover the erased recording.  Vestigant was successful.  Judge O'Keefe found ANC 5B in contempt and sanctioned it $1,400, the cost Vestigant charged to recover the recording.  Judge O'Keefe also referred Commissioner Steptoe to the U.S. Attorney and to the Office of the Attorney General for criminal prosecution for perjury.

The District noticed an appeal in the case, but agreed to withdraw its appeal last week after the parties reached an agreement on attorney fees.

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