FOIA Lawsuit Against D.C. Over ANC 2F Actions

Today I issued the following press release:


 

Contact: Matt Raymond, 202-744-1921, matt@mattraymond.com

Frivolous Lawsuit Against D.C., Logan Circle’s ANC a Product of Misguided Crusade Against Immigrant Small Businessman

 Please note: Any opinions expressed below are those of Chairman Raymond only, except insofar as formal positions and votes of ANC 2F are recounted.

(Washington, D.C.)—A lawsuit filed yesterday in Superior Court (James Kane v. DC, 14-3386 [422992]) against the District of Columbia regarding actions of Logan Circle’s Advisory Neighborhood Commission (ANC) 2F is rife with demonstrable falsehoods and could have far-reaching negative impacts on the ANC and an upstanding local businessman.

The complaint (http://wp.me/a22M8Q-x4) centers on the ANC’s efforts to comply with a Freedom of Information request filed by James Kane, now the plaintiff, who sought communications about the ANC’s dealings regarding Logan Circle’s Ghana Café between April 1, 2013, and April 23, 2014.  An initial search revealed at least 500 emails plus several other documents directly related to Ghana Café.

However, the FOIA request went far beyond the one business, asking for every communication over a period of more than one year related to broad terms such as the city’s ABRA liquor license enforcement agency, the Alcohol Beverage Control Board, such commonly used terms in liquor license matters as “settlement agreement” or “voluntary agreement,” and even the exceptionally broad term “resolution.”

When ANC 2F Chairman Matt Raymond began the broader search, he found that there were literally thousands of potentially responsive documents (the bulk of which being emails). He communicated this fact to Kane’s attorney and suggested narrowing the search to Ghana Café, citing the unreasonable amount of time the search and document production would entail, plus the fact that ANC commissioners are volunteer, unpaid officials, most of whom have day jobs. D.C. law requires only eight hours of personnel time related to document reformatting, which would be exceeded by an order of magnitude in accounting for thousands of documents.

ABRA and the ABC Board are the D.C. agencies that constitute the lion’s share of ANC activities, and Ghana Café is but one of numerous liquor licensees the ANC dealt with in 2013 when residential development and dining establishments boomed in Logan Circle. ANC 2F has a total annual budget of $18,770 and is able to employ only part-time staff to assist with routine matters such as preparing agendas and taking minutes.

Neither Kane nor his attorney responded to Raymond’s good-faith offer to comply, instead taking the matter directly to court.

“To call this a fishing expedition would be an understatement,” Raymond said. “It’s more akin to Captain Ahab’s brash pursuit of Moby Dick. The extreme nature of the FOIA request and this lawsuit speak to the plaintiff’s intemperate efforts to bring harm to Ghana Café, as well as to greatly hinder the ability of ANC 2F to represent the needs of Logan Circle residents.”

One year ago, Ghana Café owner Tony Opare, a Ghanaian immigrant, approached the ANC in hopes of easing restrictions on his liquor license that put him at a competitive disadvantage with nearby businesses. The ANC reached out to Kane and surrounding neighbors who along with ANC 2F were also a party to Ghana Café’s settlement agreement, which places additional conditions on a licensee than normal regulations. When Opare’s application for live music on weekends was denied by the ABC Board, giving neighbors little incentive to continue negotiations, they became nonresponsive to the ANC.

In March 2014, frustrated by the bad-faith negotiations and sympathetic to Opare’s plight, the ANC voted to withdraw from the existing settlement agreement and enter into a new one with Ghana Café, placing it on more equal footing with competitors.

Neighbors had valid concerns about a number of health violations, but Opare rectified them quickly and then had a record on par with other establishments in the neighborhood. The neighbors also alleged numerous violations of Ghana Café’s license and settlement agreement. However, ABRA notes only a single minor infraction in Ghana Café’s history, related to paperwork.

The ANC in recent years has been responsive to the concerns of Kane and his neighbors—e.g., successfully opposing a 2011 Ghana Café application for outdoor seating. In addition, the ANC voted last year to oppose live music before later switching course and voting this year to ease restrictions after deeming the continued opposition to Opare unreasonable.

“Mr. Opare has been held hostage for a year by a small group of surrounding residents, to the detriment of his business and patrons,” Raymond said. “The vehemence with which they have pursued their crusade is disproportionate, if not discriminatory, compared to their dealings with similarly situated restaurants. Ghana Café is not the bad actor those few neighbors would have us believe.

“A likely outcome of their intransigence would be to force the closure of a business owned by a man who was living the American Dream.”

Kane’s lawsuit makes several demonstrably false claims about ANC 2F’s handling of the FOIA request:

 Allegation: “On information and belief, as of May 29, 2014, ANC 2F did not submit a request to [the Office of the Chief Technology Officer, or OCTO] to search ANC 2F’s government-hosted email accounts for emails responsive to Mr. Kane’s FOIA request.”

 Fact: At the request of ANC 2F, D.C.’s Office of Advisory Neighborhood Commissions made a formal request on May 27 that OCTO do a search of government-hosted emails, which was listed as “in progress” when the lawsuit was filed—a fact the plaintiff could have found out with a simple call or email to ANC 2F.

Allegation: “On information and belief, as of May 29, 2014, none of the non-government hosted email accounts used by ANC 2F Commissioners was searched for emails responsive to Mr. Kane’s FOIA request.”

 Fact: As previously mentioned, all emails and documents potentially responsive to the Ghana Café issue were searched and segregated, numbering more than 500. Raymond also commenced a good-faith search of the other overly broad terms in the FOIA request. While an exact number was not determined, it without question would have been in the thousands, constituting an undue and unlawful burden on the ANC. Again, this is a fact the plaintiff could have found out with a simple call or email to ANC 2F.

 Ironically, the plaintiff’s filing, in quoting Raymond’s emails, contradicts its own claim.

 Allegation: “On information and belief, as of May 29, 2014, ANC 2F did not search for nonemail documents that are responsive to Mr. Kane’s FOIA request.”

 Fact:  Reviews conducted by ANC 2F included non-email documents, all of which were being segregated and held as potentially responsive—another fact the plaintiff could have found out with a simple call or email to ANC 2F.

 The complaint’s contention in “Count One” that the District therefore violated the FOIA law for its supposed failures to search is also false.

The filing further complains that ANC 2F failed to produce a “Vaughn index,” which essentially is a detailed, item-by-item spreadsheet listing all potentially responsive communications and determinations whether each could be considered privileged under the law and court precedent. Producing such an index for the request as submitted would have required untold hours of work by a small army of administrative personnel, easily exhausting ANC 2F’s $18,770 budget.

If the plaintiff’s hope was that the ANC would choose the path of least resistance and turn over, wholesale, thousands of documents without proper review and due diligence regarding potentially privileged information, such as that which would result in invasions of privacy or damage a business’s competitive position, it then would have exposed the District to additional liability for the illegal release of such information. In addition, “capricious and arbitrary” responses to FOIA requests potentially expose government officials to criminal liability.

While the law permits the filing of FOIA-related lawsuits, it also offers an administrative appeals process via the Office of the Mayor, which would have lasted no more than 10 days. If an appellant disagreed with the outcome, he still would have the option to file a civil claim. In bypassing a speedy appeal, the plaintiff could drag out the matter until at least Sept. 12, the date the court set for an initial conference regarding the lawsuit.

“If Mr. Kane and his attorney were truly interested in the information they are seeking, they would have pursued the expedited administrative appeals process rather than delaying the matter for months and incurring substantial attorney’s fees, for which D.C. taxpayers would be on the hook if the District lost in court,” Raymond said.

“Moreover, simple and cordial discussions might have resolved the situation instead of tying up the courts.

“Logan Circle residents and all D.C. citizens should be outraged at this treatment of a well-meaning small businessmen, this flagrant abuse of the legal process, and the potential damage inflicted on hard-working, volunteer representatives attempting to do the work of the people.”

 # # #

 ANC 2F represents part or all of several D.C. neighborhoods including Logan Circle, Thomas Circle, Old City, Blagden Alley/Naylor Court, Franklin Square, and parts of Shaw and Downtown. ANC 2F comprises eight Single Member Districts and therefore has eight commissioners. Its website is located at http://anc2f.org/.

 

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