Tag Archives: FOIA Lawsuit

SMD 5B03 ANC Commissioner Steps Down – Why And What Happens Next

SMD 5B03 ANC Vacancy AnnouncementAdvisory Neighborhood Commissioner (ANC) for Single Member District (SMD) 5B03 Tiffany Bridge recently stepped down from her ANC Post. SMD 5B03 boundaries are Monroe Street NE to the North, 13th Street NE to the West, Rhode Island Avenue to the South, and 19th and 18th Street NE to the East. We reached out to her to inquire why she stepped down, and she provided us with the following statement:

The short version is, I have a very different opinion from the other commissioners about what, at a practical level, constitutes openness and transparency in local government. Which wouldn’t be a problem by itself (we’re all accountable at the ballot box for the kind of elected official we are, after all, and I don’t believe in telling other elected officials how to represent their districts), but the practical upshot had turned out to be: a lawsuit filed against the ANC for not honoring a FOIA request that should have been a no-brainer, to which I am a party simply because I was on the ANC at the time; my total lack of confidence that I wouldn’t get dragged into those kinds of shenanigans again by continuing to be part of that body; and personal abusiveness leveled at me from other commissioners because of my belief that our constituents are entitled to know what we’re up to and why.
I’m sorry to not complete my term- I hate being a quitter more than almost anything- but I could no longer ignore that being confident in the principles guiding my own behavior wasn’t going to be enough to keep me from getting dragged into nonsense I don’t want to be associated with. Not to mention that there can be real consequences for that kind of thing- While criminal penalties for FOIA violation are rarely applied, contempt of court is not uncommon, for example. It was no longer a risk I was comfortable taking.

The FOIA case Ms. Bridge is referring to is the one we covered here yesterday. So what happens next? Ms. Bridge tells us:

Once the seat is officially certified vacant, there will be a special election process. Candidates may collect signatures for an election, but if only one candidate returns a valid petition, he or she will automatically be awarded the seat. The person ending up with the seat will have to run for reelection (if they so choose) next year along with all other ANCs.

We assume this process is already underway as a DC Board of Elections ANC vacancy announcement was posted on August 23rd on the Brookland bulletin board at the corner of 12th and Newton Street, NE. We would like to thank Ms. Bridge for her service to the community.

ANC 5B Loses FOIA Court Case – Releases Brookland’s Finest Protest Documentation

At the May 2013 ANC 5B meeting  ANC 5B-04 Commissioner Steptoe introduced a resolution resulting in the Commission taking a 4 – 1 vote to protest the Brookland’s Finest restaurant’s liquor license application. Although the Resolution was procedurally sound (Commissioners are allowed to introduce resolutions under “new business”) many were taken aback by the fact that the vote was not announced on the published meeting agenda and that the resolution was supported by 15 exhibits that were not shared with the public. At the time, Commissioner Steptoe  claimed that the she visited “every house in the perimeter of the establishment” and found that “a majority of the property owners are against it”. (See the first video below around 2:10 – 2:30.) Many found this claim difficult to believe given the overwhelming neighborhood support for the restaurant. We did an analysis of documentation acquired from DC’s Alcoholic Beverage Regulation Administration (ABRA) in July and found that actually 31 immediate neighbors were against and 149 were in favor of the establishment. We also found that many signatures in protest of the restaurant’s liquor license were not actually from Brookland neighbors, but from members of two churches near the proposed restaurant.

When pressed at the July 24th ANC 5B meeting on the finding that many opposing signatures actually came from residents who are members of nearby churches, used church addresses as their residence on the petitions, and are not residents of Brookland, Commissioner Steptoe retorted that those raising these points were “misinformed” and “mistaken” (see the video below around 9:15 – 16:10.). However,  now thanks to the FOIA case, we can see that actually this is the case via Exhibit 9 (pages 10, 14, 15) which can be found here.

Back tracking a bit, following the May ANC 5B  vote to protest the restaurant’s liquor license, the Brookland Bridge Blog and a Brookland resident, Conor Crimmins, submitted Freedom of Information Act (FOIA) requests for the Exhibits associated with the protest resolution. ANC 5B refused to release the Exhibits associated with this vote, which led to Mr. Crimmins taking the ANC to court to gain access to them (the Brookland Bridge Blog declined to take further action). The end result is that the ANC lost the court case and had to hand over these documents. Mr. Crimmins shared them with us and we are making the documents available to you here. (For a list of documents, see below.) The process to obtain these documents was quite lengthy and involved many steps. Mr. Crimmins shared a timeline of events including how and when he requested and received each of the documents:

  • May 24: I emailed Cmr. Higgins (my SMD Cmr. ) and requested all Exhibits used by ANC5B in support of their Resolution to Protest Brookland’s Finest ABRA Application, voted on at the May 22nd Meeting. Cmr. Higgins responds that I must contact Cmr. Steptoe to receive these documents.

  • May 24: I emailed Cmr. Steptoe a forward of my request to Cmr. Higgins and then made an individual request of her for the documents, as instructed by Cmr. Higgins.

  • June 3: Having received no communication from Cmr. Steptoe, I resent my request to Cmr. Steptoe (and other ANC5B Commissioners) and made another request for the 15 Exhibits.

  • June 3: Cmr. Steptoe responds to my request by stating that ANC 5B will not provide any of the Exhibits.

  • June 3: I had two conversations with Gottlieb Simon, Director or ANCs, about my request.  While sympathetic, he states that it ‘sounds’ like these are documents that should most likely be made available, but he cannot say because he has not seen them.  He also offers that he has no authority to make an ANC provide the documents even if he did think they should be public.  He then informed me that I had three options, I could try and see if the documents had been provided to ABRA, and if so, try and make a request for them through ABRA.  I could try and get the ANC, at their next meeting, to take make a motion and take a vote to force the release of the documents.  Or, I could file a FOIA law suit to try and obtain them.

  • June 3: I began discussion with Don Padou, about FOIA lawsuit.

  • June 5: Made a second request of Cmr. Higgins for the Exhibits

  • June 5: Cmr. Higgins replied that she did not have copies of the Exhibits

  • June 19: Filed FOIA lawsuit and served ANC5B

  • July 1: I made a request of Ms. Fashbaugh at ABRA for documents.  No reply.

  • July 1: Don made request on my behalf to EOM/FOIA asking for support in FOIA request and intervention

  • July 5: Filed Discovery Request

  • July 6: Steptoe sent email notice to community of Complaint

  • July 12: DC’s Office of the Attorney General (OAG) Drafted Memo to ANC5B in response to a Question ANC5B asked it regarding if they had to give up documents

  • July 12: Based on “new OAG interpretations” Cmr. Steptoe emailed me copies of Exhibits 10 and 11

  • July 16: Having learned of OAG memo, we make FOIA request for copy of OAG Memo to ANC5B

  • July 29: Receive copy of OAG memo

  • July 31: File Preliminary Injunction

  • Aug 7: OAG releases Exhibits 1, 2, 9, 10, 11, 13, 14, 15 (those that I had expressly named by title in my original FOIA request)

  • Aug 13: Court hearing.  We argue that we are still due Exhibits 3-8 and 12.  Court rules in our favor.  We receive Exhibits 3-8 and 12 at 8pm on Aug 13.

  • Aug 14: 8pm – 1:35am (Aug 15) ABRA Hearing on Brookland’s Finest Application

For me, the most frustrating aspect of this situation is the basic issue of transparency. Why is a court case necessary for the public to obtain access to the documentation that was a foundation for a vote before the ANC? Further, on July 12th, the Legal Counsel Division of the Office of the Attorney General provided ANC 5B with a legal opinion that not only must they provide a copy of the Resolution and Exhibits 10 and 11 but that they should provide copies of the other Exhibits.  While ANC 5B did provide copies of Exhibits 10 and 11, they also continued to withhold the Resolution and the other Exhibits against the advice in the OAG’s opinion. As a result, Don Padou, Mr. Crimmins attorney, filed a Motion for a Preliminary Injunction at the end of July and it was only after the hearing was scheduled that the District agreed to release the Resolution and 7 of the Exhibits. I reached out to Mr. Padou, who wrote the following:

At the PI [Preliminary Injunction] hearing, the Judge decided in Conor’s favor and ordered the documents released by 5 PM that day.  The District did not release the documents until after 8 PM and after I sent several emails and left a phone message for the District’s lawyer.

The delay in producing the documents was not the first time that the District failed to follow the Judge’s orders.  Prior to the PI hearing, the Judge ordered the District to provide him with a copy of the Resolution and all 15 exhibits.  The District provided the Resolution and half of the exhibits, but refused to provide all of the exhibits until the Judge issued a second order.
We asked ANC Commissioner Steptoe for a response to the results of the court case and she replied with the following statement:

FOIA requests tend to be pretextual strategies by persons/entities seeking a leg up and/or expose.  So, when I rec’d the FOIA request immediately after the ANC’s May vote by persons in dogged support of the bar (the bar is in my SMD), according to our bylaws, my read was to deny the FOIA request based on deliberative processes.  However, since I do not write DC law, I also immediately contacted OAG in May seeking their legal interpretation under deliberative processes.  I also referred requesters to OAG for legal interpretation, to no avail.  Instead, ANC 5B rec’d no legal interpretation from OAG until after one of the requesters filed a lawsuit in July/August.  While I view these machinations as unnecessary waste – pretextual or otherwise – such do not rest on ANC 5B.

All of this seems like a lot of work and bother for documents that could have been turned over without the need for a court case. I agree with Commissioner Steptoe – this whole process resulted in unnecessary waste, so why not just turn over documents as  a matter of government transparency and avoid the lengthy (and I assume costly) process?  Not having any experience with FOIA cases, I was surprised to find that DC is required to provide an attorney to defend the ANC’s stance. This made me wonder how much of our tax payer dollars go towards a case like this. I asked Mr. Padou to estimate the cost this particular case would incur to DC taxpayers. He had this to say:

It is hard to quantify how much D.C. taxpayers pay when D.C. agencies refuse to comply with FOIA.  I can tell you that D.C. judges are fed up and constantly scold D.C. agencies for their failure to comply.  The fees to a plaintiff’s lawyer can be very low (a couple hundred dollars) if the District agency turns over documents shortly after a FOIA complaint is filed.  If the agency decides to fight in court, however, the fees escalate.  I can’t give you any kind of estimate for how this case will turn out because I have no idea how long ANC 5B will prolong litigation.  I can tell you that if ANC 5B had complied with the OAG’s July 12th letter, the cost to D.C. taxpayers would have been very, very low.

Here is a list of the exhibits, linked above:

Exhibit 1: ANC 5B Resolution in Protest of Brookland’s Finest
Exhibit 2: ABRA Application of Brookland’s Finest
Exhibit 3: ANC 5B 2013 Boundaries Map
Exhibit 4: ANC5B04/Steptoe Notice of April 27th Meeting regarding Brookland’s Finest
Exhibit 5: ANC5B04/Steptoe Agenda for April 27th Meeting regarding Brookland’s Finest
Exhibit 6: ANC5B04/Steptoe Sign-In sheet for April 27th Meeting regarding Brookland’s Finest
Exhibit 7: ANC5B04/Steptoe Notice of April 27th Meeting written on to indicate early adjournment of the meeting of April 27th and posted to door of Demountable Trailer
Exhibit 8: Cmr. Steptoe email to community on April 28th explaining early adjournment of the meeting of April 27th
Exhibit 9: ANC5B04/Steptoe Survey of Nearby Residents “For” or “Against” Brookland’s Finest conducted on May 3, 4, 5, and 10
Exhibit 10: ANC5B04/Steptoe letter to Nearby Residents left when no one was home during survey
Exhibit 11: ABRA Notice to ANC5B of Brookland’s Finest Application
Exhibit 12: Cmr. Steptoe email to community on May 9th noticing of official ABRA Placard Notice of Brookland’s Finest
Exhibit 13: ANC5B04/Steptoe letter to Nearby Residents informing them of discrepancies in ABRA Application for Brookland’s Finest and Previously published and provided information from Brookland’s Finest
Exhibit 14: Copy of First Official Protest by Protestants of Brookland’s Finest ABRA Application
Exhibit 15: Copy of Second Official Protest by Protestants of Brookland’s Finest ABRA Application