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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ANC 2F Meeting Agenda for August 7, 2013

ADVISORY NEIGHBORHOOD COMMISSION 2F
REGULAR MONTHLY PUBLIC
MEETING

Wednesday, August 7, 2013 – 7:00 PM

WASHINGTON PLAZA HOTEL—10 THOMAS CIRCLE, NW

AGENDA

COMMUNITY FORUM

 

Call to Order  

7:00

Commissioner Announcements  

7:00

Report from Executive Office of the Mayor   

7:05

Report from Office of Jack Evans, City Council Member, Ward 2  

7:10

Report from Metropolitan Police Department, Police Service Area 307  

7:15

Community Announcements  

7:20 

— 5-Minute Recess — 

BUSINESS MEETING

Approval of Agenda  

7:30

Approval of Minutes, Meeting of July 10, 2013  

7:30

Confirmation of New Executive Director  

7:35

ABRA Policy Committee Report (Commissioner John Fanning, Chairperson)

  • 1336 14th Street, NW – Ghana Café, ABRA #082751, request for support for entertainment endorsement
  • 1610 14th Street, NW – Ghibellina, ABRA #088785, request for support for substantial change in operation (12-seat sidewalk café, hours of operation, and entertainment endorsement). Petition date: Aug. 26.
 

7:40

Education Committee Report (Commissioner Matt Connolly and Evelyn Boyd Simmons, Co-Chairpersons)  

7:55

Crime and Public Safety Committee Report (Commissioner Chris Linn, Chairperson)  

8:00

Community Development Committee Report (Commissioner Walt Cain, Chairperson)

 

8:10

Old Business  

8:30

New Business

  • ABRA: 1209-1213 10th Street, NW – The American, ABRA #092766, new license application. Petition date: Sept. 9.
  • DDOT-Public Space Committee: Proposed closing of a public alley in Square 368 (ANC Single Member District 2F-06)
 

8:30

Treasurer’s Report (Commissioner Matt Connolly, Acting Treasurer)

  • Update
  • Adoption of quarterly report, FY 2013-Q3 (April – June 2013)
  • Approval of expenditures
 

8:50

Adjournment  

9:00

NOTICE:  The agenda attached to this notice of meeting is provided by ANC 2F in advance of its public meetings and contains matters that are expected to come before the meeting.  It is, however, subject to formal adoption by the ANC at the meeting, which may result in additions or deletions to the draft.   Individuals who may have official business before the ANC or persons with interests in specific matters are advised to contact the Executive Director or a Commissioner in advance of the meeting. See www.ANC2F.org for contact information.

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Mayor Holding Budget Town Hall on April 20

Mayor Vincent C. Gray invites you to come join him for a presentation and open discussion about his 2014 proposed budget:

Ward 2
Date: Saturday, April 20, 2013
Time: 2 pm – 4 pm
Location: Charles Sumner School – 1201 17th Street, NW

This is Ward 2-specific and will include lots of useful information.

Co-Hosted by

ANC 2A (Foggy Bottom)
ANC 2B (DuPont Circle)
ANC 2C (Penn Quarter)
ANC 2D (Sheridan-Kalorama)
ANC 2E (Georgetown)
ANC 2F (Logan Circle)

HOPE TO SEE YOU THERE!!

For any questions please contact:

James “Freddie” Bulger
Ward 2 Liason
Mayor’s Office of Neighborhood Engagment
Executive Office of the Mayor
(202) 340 7229
James.bulger@dc.gov

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Text of Resolution Regarding Proposed Liquor Moratorium

Here is the text of a resolution I have shared with my 2F colleagues and which I will ask them to discuss and vote on at our meeting tonight, which begins at 7 p.m.

(UPDATE: The ANC passed the resolution unanimously, 7-0.)

April 3, 2013
A Resolution by Advisory Neighborhood Commission 2F
Regarding the Proposed Liquor License Moratorium in the
Historic 14th and U Street Corridor

WHEREAS, The Shaw-Dupont Citizens Alliance on December 10, 2012, petitioned the Alcoholic Beverage Control Board of the District of Columbia (“ABC Board”) seeking to establish a moratorium on the issuance of new retailer-class liquor licensees; and

WHEREAS, The proposed moratorium would encompass a zone extending within the boundaries of Advisory Neighborhood Commission 2F (“ANC 2F”); and

WHEREAS, The written advice of ANC 2F, as an affected ANC, must be accorded Great Weight by the ABC Board, pursuant to section 13(d)(3) of the Advisory Neighborhood Commissions Act of 1975; and

WHEREAS, The Alcoholic Beverage Control Board has scheduled a hearing on the petition on May 22, 2013, and has solicited formal comments from affected ANCs; and

WHEREAS, ANC 2F has discussed and received public comments on the moratorium at meetings of its Crime and Public Safety Committee and ABRA Policy Committee, as well as three meetings of the full commission and a joint listening session held March 20, 2013, with ANCs 1B and 2B; and

WHEREAS, Community sentiment is strongly opposed to the moratorium, as evidenced by comments at the above-referenced meetings, as well as contacts from individual constituents, and an online petition with 1,196 signatures as of April 3, 2013; and

WHEREAS, ANC 2F welcomes the presence of liquor-licensed establishments, having endorsed the findings of the ARTS Overlay Review Committee, which stated that “restaurants and bars are an important ingredient in having a vibrant ARTS District: they contribute foot traffic to the arts and retail uses, and play an important role in achieving a vibrant and safe nighttime street environment”; and

WHEREAS, Serious concerns have been raised about the efficacy and advisability of moratorium zones elsewhere in the District of Columbia and whether they contribute the intended net positive effect to community values such as retail diversity and public safety; and

WHEREAS, The petition advances a number of dubious claims about issues such as crime rates and enforcement of existing zoning regulations under the Uptown ARTS Overlay; and

WHEREAS, Current tools exist, and other creative solutions should be pursued, to address the negative impacts raised in the petition; and

WHEREAS, Moratoriums are market-distorting mechanisms that unfairly advantage incumbent businesses; transform liquor licenses into commodities that may cost tens of thousands of dollars, pricing local entrepreneurs out of the market; depress the tax base; and discourage non-liquor amenities by making neighborhoods less desirable places overall for businesses to locate; therefore, be it

RESOLVED, That ANC 2F advise the ABC Board to deny the pending petition to create a retail liquor license moratorium zone in the Historic 14th and U Street Corridor in its entirety, and to decline to move forward with any rule-making process to effectuate such a moratorium zone; and

FURTHER RESOLVED, That ANC 2F Chairman Matt Raymond be directed to write a report elaborating upon the basis for this resolution that will serve as formal written advice to the ABC Board, to be voted upon at the May 2013 meeting of ANC 2F; and

FURTHER RESOLVED, That such report include an acknowledgement of potential impacts that might accompany the growth of liquor licenses in our area and a focus on positive steps the community should take, short of a moratorium, to address those impacts; and

FURTHER RESOLVED, That ANC 2F recommit itself to working with District agencies, the City Council, the Metropolitan Police Department, residents, the business community, neighboring ANCs and other stakeholders to improve the enforcement of all applicable laws and regulations governing liquor licensees and potential community impacts, and to seek changes in such laws and regulations, where deemed advisable.

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Listening Session THIS WEDNESDAY on Proposed Liquor Moratorium

Advisory Neighborhood Commissions from U Street, Logan and Dupont Holding Listening Session on Proposed 14th & U Liquor Moratorium

Wednesday, March 20, 2013
7:00 – 9:00pm
Thurgood Marshall Center
1816 12th St. NW

Members from the U Street (1B), Logan Circle (2F) and Dupont Circle (2B) ANCs will be holding a joint listening session to hear directly from the residents and the business community about a proposed Liquor Moratorium for 14th and U Streets. The meeting will be an opportunity for the neighborhood to speak directly to their elected officials who will be voting over the next few months on whether to support a moratorium in the area. Special invited guests include representatives from the Alcoholic Beverage Regulatory Agency, the Metropolitan Police Department, and the Shaw Dupont Citizens Alliance, who proposed the moratorium.

Though this is the only joint meeting being held on the proposal, ANCs may hold additional smaller meetings – decisions or actions will not be taken at this meeting. Organizers intend to give each participant 1-2 minutes to speak and request that members of the community direct their comments to the ANC Commissioners present.

Please share this announcement with your friends and neighbors and be sure to attend this listening session to have your voice heard as the community debates a moratorium at 14th and U.

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Rock ‘n’ Roll Marathon Brings Major Road Closures

A quick post to let everyone know that tomorrow’s Rock ‘n’ Roll Marathon (and half marathon) are bringing not just tens of thousands of runners into the District, but also a huge number of road closures.

While the race doesn’t cut through ANC 2F, the course for the half marathon virtually encircles much of Northwest Washington, all the way down to Constitution Avenue.  (There are rolling street closures and openings, so not all streets will be closed for the duration of the race.)

You can read all about it here–so if you’re going to be out and about on the roads between tomorrow morning and mid-afternoon, plan ahead and give yourself plenty of time to get where you’re going.

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ANC March Monthly Meeting POSTPONED to THURSDAY March 14

Because of the increasingly foreboding weather forecast, ANC 2F is postponing today’s regularly scheduled monthly meeting until next Thursday (not Wednesday as previously posted) , March 14, at 7 p.m. The location remains the same: the Washington Plaza Hotel.

We regret any inconvenience this might cause, but we felt that in the case of Snowquester, discretion was the better part of valor.

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Street Sweeping Resumes Tomorrow (March 1)

Heads up, car owners and operators: DC’s Residential Street Sweeping Season gets underway once again beginning tomorrow, March 1. From DPW’s announcement of Feb. 12:

Signs are posted that identify the days of the week and hours of the day when parking restrictions will be enforced so the sweepers can clean the streets effectively. Parking enforcement of residential sweeping violations will begin Monday, March 11, to give motorists a few days to get used to the parking restrictions.

Tickets for violations will run you $30–and that doesn’t count the cost of your car being towed, if you are so unfortunate.

Street-sweeping season continues through October 31. Additional information can be found here.

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Bitter Cold Brings Advice for Homeless

Continued bitterly freezing temperatures, combined with the possibility of up to a couple of additional inches of snow, are prompting city officials to remind District residents about some of the resources that are available to the homeless because of the threat posed by hypothermia.

I wanted to pass along this alert I received from the D.C. Office on Aging:

The District of Columbia is committed to protecting the homeless from extreme weather injury by meeting the demand for shelter during hypothermia (not enough heat). An alert is issued when the temperature falls below 32 degrees which is freezing. You can help. Call the hotline when you see a homeless person who may be impacted by extreme temperatures. The Hypothermia Hotline, 1 (800) 535-7252, is operated by the United Planning Organization (UPO). Families seeking emergency shelter should go to the Virginia Williams Family Resource Center at 33 N Street, NE. The shelter operates between the hours of 8 am and 3:30 pm, Monday through Friday (except for holidays and days on which the District government is closed). After 3:30 pm and on weekends, during extreme temperature alerts, families should call the Shelter Hotline for transportation to the DC General family shelter or other available family shelter. For more information, call 311.

To that I would add a reminder to check in on any elderly or vulnerable neighbors who might not have adequate heat.

In the meantime, bundle up and stay warm!

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“Garrison is Saved!”

I just received an email from the co-chair of our Education Committee, Evelyn Boyd Simmons, stating only the three words in that headline.

Garrison Elementary School has apparently been spared closure, as had been proposed by D.C. Public Schools Chancellor Kaya Henderson. (UPDATE: Here is the announcement.)

Any way you sliced it, there was no way Garrison deserved to be on the closure list. Within moments of Henderson’s proposal, a groundswell began that was propelled by the same people who had been fighting to improve Garrison long beforehand. ANC 2F was proud to partner with them to make our case, repeatedly and in detail.

I attended a meeting with Henderson a few weeks ago and asked her point-blank: She had been taking pains to note that the public input she was seeking was not just a kabuki dance (my term, not hers). She had been asking for solutions, not just rallies.  We offered compelling arguments, statistics and–yes–solutions.  In the final analysis, if she followed through on the closure of Garrison, would she be able to look us in the eye and tell us that she was truly listening?

At the time, she assured me she would be able to say exactly that.  While I await details, it turns out that she was true to her word, and I applaud her for that.

UPDATE: More details from WaPo. The list of 20 was ultimately pared down to 15. Ward 2′s Francis-Stevens was also spared.

From the article:

“Garrison will stay open in part because of parents’ commitment to help recruit new students and in part because of demographic information showing that the school’s Logan Circle neighborhood is growing faster than officials previously understood, Henderson said.

“Francis-Stevens Education Campus will remain open, the chancellor said, because its extra space will be filled by an expansion of the city’s selective School Without Walls. And Johnson Middle School will stay open because of safety concerns.”

Yep. She listeneed.

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