District of Columbia

Court of Appeals

No. 13-CV-1146 

FRATERNAL ORDER OF POLICE,

METROPOLITAN POLICE LABOR COMMITTEE,

Appellant,

 v. CAB-8401-10

DISTRICT OF COLUMBIA,

Appellee.

On Appeal from the Superior Court of the District of Columbia

Civil Division

BEFORE: FISHER and EASTERLY, Associate Judges; and NEBEKER, Senior Judge.

J U D G M E N T 

This case came to be heard on the transcript of record, the briefs filed, and 

was argued by counsel. On consideration whereof, and as set forth in the opinion filed 

this date, it is now hereby 

ORDERED and ADJUDGED that the order granting summary judgment to 

the District of Columbia is reversed, and the case is remanded to the Superior Court with 

the directive that it enter an order requiring the parties to engage in mediation before 

resuming litigation in this case.

For the Court:

 

Dated: May 26, 2016.

Opinion by Associate Judge Catharine Easterly.

MAY 26 2016
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 13-CV-1146

FRATERNAL ORDER OF POLICE,

METROPOLITAN POLICE LABOR COMMITTEE, APPELLANT,

 V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court 

of the District of Columbia

(CAB-8401-10)

(Hon. Erik P. Christian, Trial Judge)

(Argued April 21, 2015 Decided May 26, 2016)

Paul A. Fenn, with whom Barbara E. Duvall was on the brief, for appellant. 

Jason Lederstein, Assistant Attorney General, with whom Irvin B. Nathan, 

Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, 

and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for appellee.

Before FISHER and EASTERLY, Associate Judges, and NEBEKER, Senior 

Judge.

EASTERLY, Associate Judge: The Fraternal Order of Police (―FOP‖) appeals 

the Superior Court‘s order granting summary judgment to the District based on the 

court‘s determination that the District had fulfilled its obligations to respond to 

FOP‘s Freedom of Information Act (―FOIA‖) request. With some dismay, we 

5/26/16
2

reverse, but, before FOP and the District resume litigation in Superior Court, we 

direct them to engage in mediation. 

I. Facts and Procedural History

On September 24, 2010, FOP submitted a FOIA request to both the 

Metropolitan Police Department (―MPD‖) and the Office of the Chief Technology 

Officer (―OCTO‖). FOP requested three categories of documents ―in the 

possession, custody and/or control‖ of either entity: (1) all email sent to or from 

Mark Tuohey, including, but not limited to, all email sent to or from his email 

addresses at two law firms, Brown Rudnick LLP and Vinson & Elkins LLP, and 

one email address at the Washington D.C. Police Foundation; (2) all email sent to 

or from Eric Holder, including, but not limited to, all email sent to or from his 

email address at the law firm Covington & Burling LLP; (3) all email referencing 

or mentioning the Washington D.C. Police Foundation. FOP stated that it sought

documents from these categories generated over a four-year period, ―from 

November 1, 2006 to present.‖

Three days later, the FOIA Officer at MPD, Natasha Cenatus, sent a letter to 

FOP in which she ―acknowledge[d] the receipt of [FOP‘s] request,‖ designated
3

―FOIA Request #100927-001.‖ Ms. Cenatus advised FOP that the ―statutory time 

period permitted to process [its] request begins one full workday after the receipt 

of [its] request.‖1 Ms. Cenatus indicated, however, that there might be an 

―extension,‖ either ―due to the volume and extended time involved to process 

email searches‖ or because FOP‘s request ―may have to be addressed by several 

divisions within the department resulting in numerous responses.‖2 Ms. Cenatus

concluded her letter by informing FOP that it would ―receive written notice 

advising [it] of the availability of requested information and the cost (if any) for 

the search and duplication of requested materials, and how to obtain the

information.‖ That same day, Ms. Cenatus contacted OCTO about FOP‘s FOIA 

 

1

 Ms. Cenatus appears to have been referring to D.C. Code § 2-532 (c) 

(2006 Repl.), which provides that ―[a] public body, upon request reasonably 

describing any public record, shall within 15 days (except Saturdays, Sundays, and 

legal public holidays) of the receipt of any such request either make the requested 

public record accessible or notify the person making such request of its 

determination not to make the requested public record or any part thereof 

accessible and the reasons therefor.‖

2 Ms. Cenatus appears to have been invoking D.C. Code § 2-532 (d) (2006 

Repl.), which allows, in ―unusual circumstances,‖ ―the time limit prescribed in 

subsection (c) of this section‖ to be ―extended by written notice to the person 

making such request‖ for no more than ten days. ―Unusual circumstances‖ are 

restricted to: ―(1) The need to search for, collect, and appropriately examine a 

voluminous amount of separate and distinct records which are demanded in a 

single request;‖ or ―(2) The need for consultation, which shall be conducted with 

all practicable speed, with another public body having a substantial interest in the 

determination of the request or among 2 or more components of a public body 

having substantial subject-matter interest therein.‖ Id.; 1 DCMR § 405.3 (2005) 

(same).
4

request and asked it to search for variations of three names (Mark Tuohey, ―Erick 

[sic3] Holder,‖ and D.C. Police Foundation) within eight District government email 

accounts for MPD employees.

4

In early October, Ms. Cenatus sent a follow-up letter to FOP, now asserting 

that FOP‘s request was ―vague and overbroad‖ and claiming that ―[a]dditional 

information is required to conduct an adequate search.‖ For each category of 

documents, Ms. Cenatus asked for the ―name of the individual e-mail boxes to 

search or the unit/branch/department that may be associated with this request,‖ and 

invited FOP to identify the subject matter underlying its request ―to assist [MPD] 

in determining which individual e-mail boxes would most likely contain the 

information [FOP] [was] seeking.‖ Ms. Cenatus stated that ―[w]ithout additional 

information from [FOP] addressed above, MPD will conduct a search based on 

[its] reasonable interpretation of [FOP‘s] request.‖ She did not disclose that she 

had already asked OCTO to conduct searches of eight email accounts in relation to 

FOP‘s request. 

 

3

 The correct spelling is ―Eric.‖ 

4

 The eight District employees were Terry Ryan, Ron Harris, Cathy Lanier,

Gwendolyn Crump, Nicholas Breul, Leeanne Turner, Marvin Johnson, and Teresa

Quon.
5

In mid-October, Ms. Cenatus again wrote to FOP explaining that MPD was 

claiming entitlement to a ten-business-day extension pursuant to D.C. Code § 2-

532 (d). Although she did not specifically cite D.C. Code § 2-532 (d)(2) 

(authorizing an extension in ―unusual circumstances‖ where there is a need to 

consult with other agencies with ―substantial interest‖ in the requested records, see

supra note 2), Ms. Cenatus appeared to rely on this specific subsection, citing

―unusual circumstances concerning [MPD‘s] need for consultation with another 

public body, [OCTO], which has a substantial interest in the determination of this 

request, as well as consultation within MPD among its Office of General Counsel 

and the Executive Office of the Chief of Police . . . .‖5

The same day Ms. Cenatus wrote this letter, OCTO for the first time 

responded to FOP‘s FOIA request. Effectively disavowing a ―substantial interest 

in the determination of [FOP‘s] request‖ under D.C. Code § 2-532 (d)(2), OCTO 

stated that, pursuant to Mayor‘s Order 2008-88, it was ―require[d]‖ to ―transfer‖ all 

FOIA requests to ―the agency within the DC government that is the subject of the 

requested emails.‖ OCTO explained that the subject agency was responsible for 

 

5 Ms. Cenatus expressed no concern about the scope of the search or the 

volume of the requested material, although these factors can independently justify 

a ten-day extension of the deadline for production. See D.C. Code § 2-532 (d)(1); 

supra note 2.
6

―formulating an email search request, review of results, possible redaction or 

withholding, and transfer of final results to the requester.‖ OCTO then claimed 

that it was ―unable to transfer [FOP‘s] request as required, or to process it in any 

way, because of its extreme and extraordinary breadth.‖ OCTO stated that the 

request ―identifie[d] no subject agency . . . and would require searching all of the 

approximately 39,000 email mailboxes of the District Government.‖ OCTO thus 

asked FOP to ―make [its] request specific enough to enable the appropriate agency 

or agencies to process them by identifying the email mailboxes to be searched.‖

On October 29, 2010, Ms. Cenatus notified FOP that MPD had processed its

FOIA request. Ms. Cenatus stated that MPD had identified 1,400 pages of 

responsive documents and that these, along with a privilege log noting redactions

(also known as a ―Vaughn index‖6), would be released to FOP upon payment of 

costs for searching and copying. Ms. Cenatus explained that an email search 

request was still pending with OCTO and that MPD expected a response from that 

agency ―in approximately 90 days or by December 30, 2010.‖ 

Not having responded to any of these communications from either MPD or 

OCTO, FOP sued the District on November 4, 2010, for constructive denial of its 

 

6

So called after Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
7

FOIA request. Pursuant to D.C. Code § 2-532 (e) (2006 Repl.) and § 2-537 (a)(1), 

(c) (2010 Supp.), FOP sought declaratory and injunctive relief, as well as 

attorney‘s fees and costs. In its complaint, FOP acknowledged receipt of (and 

attached as exhibits) OCTO‘s one email and all of Ms. Cenatus‘s letters, with one 

exception: FOP made no mention of Ms. Cenatus‘s October 29 letter announcing 

the production of the 1,400 pages of documents that Ms. Cenatus had identified as 

responsive to FOP‘s FOIA request.

7

 On November 15, 2010, Ms. Cenatus emailed 

FOP to inform it that this production was ―still in the FOIA office.‖ Two weeks 

later, in its first motion for summary judgment, FOP acknowledged this production 

by MPD, although it protested its adequacy and timing.

Thirteen months later, in December 2011, the District moved to dismiss

FOP‘s suit ―for lack of subject matter jurisdiction.‖ Citing inter alia ―D.C.M.R. 

§ 1-402.6,‖8the District argued that it had no obligation to respond to FOP‘s 

 

7

 Although FOP represents in its brief to this court that it did not receive 

MPD‘s October 29 letter until sometime after November 4, 2010, there is nothing 

in the record to support that claim; instead, in its pleadings FOP repeatedly referred 

to MPD‘s ―October 29‖ letter as if it had received the letter on the day it was sent.

8

 This regulation does not exist. It appears that the District meant to cite to 

1 DCMR § 402.5 (2005): ―Where the information supplied by the requester is not 

sufficient to permit the identification and location of the record by the agency 

without an unreasonable amount of effort, the requester shall be contacted and 

asked to supplement the request with the necessary information. Every reasonable 

(continued...)
8

―overly broad‖ and ―vague‖ FOIA request. Still, the District argued that it had, to 

the best of its ability, adequately and timely responded anyway by making two

responsive productions: on October 29, 2010, and February 11, 2011.

In support of its motion to dismiss, the District submitted an affidavit from 

Ms. Cenatus describing her efforts to produce responsive documents. Ms. Cenatus 

preliminarily stated that ―[i]t was very difficult for [her] to process this FOIA 

request.‖ Regarding the requests for all emails to or from Mark Tuohey and Eric 

Holder, she stated that ―MPD does not know which email addresses are used by 

Messrs. Tuohey and Holder to send and receive email,‖ and that the ―four 

mailboxes provided by FOP . . . did little to assist [her] understanding of FOP‘s 

request because Messrs. Tuohey and Holder may use other mailboxes in addition 

to these.‖ As to the request for all emails referencing the Police Foundation, 

Ms. Cenatus explained that there were ―no limits on its scope whatsoever.‖ 

Ms. Cenatus also indicated that she was uncertain where to search for 

responsive emails. Ms. Cenatus did not explain how many email accounts MPD 

 

(continued...)

effort shall be made by the agency to assist in the identification and location of 

requested records.‖
9

possessed or why she could not search them all, but she acknowledged that she did 

not search every account.

9

 She noted her assumption that, ―[c]onsidering the ranks 

of the persons involved, . . . the circle where responsive emails would be circulated 

[was] likely fairly small.‖

10 She then stated that she had ―commissioned email 

searches within MPD‖ of eight email accounts11: ―Terry Ryan (General Counsel 

for MPD), Ron Harris (Deputy General Counsel for MPD), Cathy Lanier (Chief of 

Police), Gwendolyn Crump (Director of Communications), Nicholas Breul (a 

Lieutenant involved with the Foundation), Leeanne Turner (then-Director of 

Grants for the Foundation), Marvin Johnson (Manager of Grants), and Teresa 

Quon (Senior Assistant Attorney General Counsel for MPD – who may have been 

consulted for legal advice regarding the Foundation[)].‖

Ms. Cenatus stated in her affidavit that as a result of these searches, she 

released to FOP, on October 29, 2010, 1,400 pages of responsive documents 

 

9 Ms. Cenatus ―defer[red]‖ to OCTO‘s assertion that a response to FOP‘s 

request ―would require searching approximately 39,000 email mailboxes,‖ i.e., all 

the email accounts used by the District government. 

10

 Ms. Cenatus noted that she was ―aware that Mr. Holder is the Attorney 

General of the United States‖; that Mr. Tuohey ―is a private attorney who has 

worked for the District Council‖; and that both men ―used to sit on the Board‖ of 

the D.C. Police Foundation with FOP‘s Chairman Kristopher Baumann and Chief 

of Police Cathy Lanier.

11 The identities of these eight individuals corresponded to the eight email 

addresses Ms. Cenatus submitted to OCTO on September 27, 2010.
10

together with a Vaughn index. Ms. Cenatus further stated that on February 11, 

2011, she made a supplemental production of ―16,703 additional pages of records 

that had been provided to [her] by OCTO‖ in response to her September 2010

request. She noted that ―[t]o speed processing, [she] did not have the opportunity 

to check for the extent of redundancy with‖ her initial production.12

At the December 2011 hearing on the District‘s motion to dismiss, FOP 

protested that it never received a supplemental production of documents. Counsel 

for FOP further stated that, prompted by the confusion about what had actually 

been produced, he had only recently counted the pages picked up from MPD in 

response to Ms. Cenatus‘s October 29 letter; when he did so, he discovered that the 

production amounted to no more than several hundred pages.

As the Assistant Attorneys General (―AAGs‖) representing the District were 

new to the case, they could only say that MPD in its initial production had ―tried to 

give‖ FOP 1,400 pages, but counsel could not say how many pages FOP had 

actually received. Regarding the supplemental production, the AAGs informed the 

 

12

 Acknowledging that this production was ―several months past the 

deadline,‖ Ms. Cenatus stated that she released these documents to FOP ―at no 

charge.‖
11

Superior Court that MPD had packaged over 16,000 pages of documents in ―25 to 

35 envelopes‖ and sent them to FOP by first-class mail, without tracking or 

confirmation of delivery. The AAGs could not say why MPD had not, as with the 

initial production, simply contacted FOP to come pick up this ―very large 

production.‖ The AAGs told the court they would reproduce to FOP all the 

documents from the District‘s initial and supplemental productions. The court and 

the parties agreed to hold the litigation in abeyance until FOP could examine these

two productions in full. 

The District subsequently produced responsive documents in electronic 

format13 along with a revised Vaughn index. It then filed a motion for summary 

judgment or in the alternative a motion to dismiss FOP‘s suit as moot. The District 

preliminarily argued that FOP‘s ―overbroad‖ request had never triggered an

obligation on the District‘s part to search for or produce documents, because FOP 

had neither ―reasonably described‖ the records sought nor provided necessary 

clarifying information as requested by the District. The District then argued that it 

had nevertheless reasonably interpreted FOP‘s FOIA request and timely produced 

responsive documents. Alternatively, the District argued that the case should be 

 

13

 MPD provided the documents to FOP on a combination of DVDs and 

CDs. It later provided this same production to FOP on a flash drive.
12

dismissed as moot because the District had produced ―tens of thousands of pages 

of responsive documents‖; because FOP could not ―produce any credible evidence 

to demonstrate that there are any additional documents responsive to its request‖;

and because there were ―no longer any  ̳live‘ issues . . . to decide.‖

FOP opposed the District‘s motion to dismiss, arguing that its FOIA request 

reasonably described the records sought, as evidenced by the District‘s efforts to 

produce some responsive documents; that the District‘s search and resulting 

production were not reasonable because the District had arbitrarily limited its 

search to the email accounts of eight individuals selected by Ms. Cenatus; and that 

the case was not moot. FOP also cross-moved for summary judgment, arguing that 

the District had failed to timely comply with FOP‘s FOIA request, failed to 

demonstrate that it had conducted a reasonable search, and failed to justify in its 

Vaughn index all redactions or withholdings pursuant to the requirements of D.C. 

FOIA.

The Superior Court denied the District‘s motion to dismiss, concluding that 

the case was not moot, but it granted the District‘s motion for summary judgment. 

Taking up the District‘s argument that FOP had failed to reasonably describe the 

records sought, the court rejected the District‘s argument that such a failure 
13

rendered FOP‘s request ―void‖ and ruled instead that it tolled the District‘s 

obligations to produce documents under the deadlines imposed by D.C. FOIA. 

The trial court then determined that the District‘s search and production were 

reasonable in light of FOP‘s ―overbroad and vague‖ request, coupled with FOP‘s 

failure to respond to a request for clarification. Lastly, the court ruled that MPD‘s 

revised Vaughn index was sufficiently detailed to justify withholding documents.

But, noting certain discrepancies between the index and the documents actually 

produced, the court also ordered FOP to provide the District with a ―full list of 

documents not listed in the [i]ndex‖ so that the District could produce a revised 

index that accurately reflected the redactions in the produced documents. 

Concluding that FOP had not ―substantially prevailed‖ in the litigation, the court 

denied FOP‘s request for attorney‘s fees.

The Superior Court subsequently denied FOP‘s motion for reconsideration. 

This appeal followed.

II. The Adequacy of FOP’s FOIA Request

The District argues that we need not review whether it complied with its 

disclosure obligations under D.C. FOIA because FOP‘s request ―was so broadly 
14

worded as to be void from the start.‖ The District reasons that if ―no FOIA request 

can be said to have been made in the first place,‖ then any defects in its response 

cannot support a cause of action under D.C. FOIA. According to the District, 

summary judgment could have been granted on this ground alone. Reviewing this 

threshold question of law—in essence, a question of statutory interpretation—de 

novo,

14

we reject the District‘s argument that the wording of FOP‘s request 

rendered it void, and we uphold the trial court‘s decision to review the District‘s 

FOIA compliance. 

The District‘s novel argument cannot be reconciled with the language or 

animating spirit of D.C. FOIA. D.C. FOIA is a sunshine law that codifies, as

―[t]he public policy of the District,‖ the entitlement of ―all persons . . . to full and 

complete information regarding the affairs of government and the official acts of 

those who represent them as public officials and employees.‖ D.C. Code § 2-531

(2015 Supp.). A core provision is D.C. Code § 2-532 (c), which requires a ―public 

body, upon request reasonably describing any public record,‖15 to timely produce 

 

14 District of Columbia v. Place, 892 A.2d 1108, 1110-11 (D.C. 2006).

15

 D.C. FOIA borrows the definition of ―public record‖ from the D.C. 

Administrative Procedure Act. D.C. Code § 2-539 (2006 Repl.) (incorporating 

D.C. Code § 2-502 (18) (2006 Repl.) (―all . . . documentary materials . . . retained 

by a public body.‖)). ―Public body‖ is not defined by D.C. FOIA, but the D.C. 

(continued...)
15

those documents in its possession or to provide a legitimate reason for 

nonproduction. The District urges this court to interpret this statutory provision as 

imposing a predicate ―specificity‖ requirement that gives individual FOIA officers 

the authority to ignore FOIA requests that, in their view, fail to ―reasonably 

describe[]‖ records. But neither D.C. Code § 2-532 (c) nor any other provision of 

D.C. FOIA states that a requester‘s failure to reasonably describe records to a 

FOIA officer‘s satisfaction will render the request void. Particularly in light of the 

statutory directive that the provisions of D.C. FOIA be ―construed with the view 

toward expansion of public access,‖ D.C. Code § 2-531, we could treat that silence 

as definitive and reject the District‘s argument. But even were we to discern 

ambiguity in the statute and interpret it with the other tools we have at hand, we 

would reach the same conclusion.

The District acknowledges that the ―reasonably describ[es]‖ language from 

D.C. Code § 2-532 (c) was modeled on amendments to the federal FOIA. See

Committee on the Judiciary and Criminal Law, D.C. Council, Report on Bill No.

1-119 at 7 (Sept. 1, 1976). The federal statute originally obligated federal agencies 

 

(continued...)

APA defines it as ―the Mayor, an agency, or the Council of the District of 

Columbia.‖ D.C. Code § 2-502 (18A) (2006 Repl.).
16

to respond to requests for ―identifiable records.‖ But a concern arose that agencies 

were withholding documents from the public by narrowly construing this phrase—

that they were denying individuals‘ requests even when they knew ―all along 

precisely what records were being requested.‖ S. Rep. No. 93-854, at 162 (1974); 

see also Truitt v. Dep’t of State, 897 F.2d 540, 544-45 (D.C. Cir. 1990). Thus, in 

1974, Congress revised the statute to make clear that, to trigger an agency‘s federal 

FOIA obligations, a requester need only ―reasonably describe[]‖ the records

sought. See S. Rep. No. 93-854, at 161-62 (1974); see also 5 U.S.C. § 552 

(a)(3)(A) (2012); Truitt, 897 F.2d at 544-45. The amendment was meant to 

―make[] explicit the liberal standard for identification,‖ not to limit disclosure of 

public records. S. Rep. No. 93-854, at 162 (1974) (―[T]he identification standard 

. . . should not be used to obstruct public access to agency records.‖). 

The District Council passed local FOIA legislation two years later, in 1976. 

In its report on the bill, the Committee on the Judiciary and Criminal Law 

specifically noted Congress‘s concern that, under the earlier version of the federal 

FOIA, federal agencies had ―used the lack of identification as a general excuse for 

withholding records.‖ Report on Bill No. 1-119, at 7. Accordingly, the Committee 

explained that its draft legislation adopted the federal ―reasonably describ[e]‖ 

language to clarify ―the nature of a sufficient request‖ under D.C. FOIA. Id. And 
17

in its section-by-section analysis of the bill, the Committee stated that a ―request 

would be sufficient if it contained the general subject matter involved and 

reference to the official or to an office within an agency which was either the 

source or office responsible for keeping the record.‖ Id. at 12.

The implementing regulations of D.C. FOIA, in turn, impose no greater 

burden on requesters than to ―reasonably describe the desired record(s).‖ 1 DCMR 

§ 402.4.16 Far from giving an individual FOIA officer the authority to deem a 

FOIA request void when the officer is unsure what the requester wants or where it 

might be found, the regulations impose an affirmative obligation on the FOIA 

officer to engage with the requester and seek out the information needed to fulfill 

the request: ―Where the information supplied by the requester is not sufficient to 

permit the identification and location of the record by the agency without an 

unreasonable amount of effort, the requester shall be contacted and asked to 

supplement the request with the necessary information.‖ 1 DCMR § 402.5. 

Indeed, the regulations explicitly require that ―[e]very reasonable effort . . . be 

 

16

 Requesters are invited, ―[w]here possible,‖ to provide ―specific 

information regarding names, places, events, subjects, dates, files, titles, file 

designation, or other identifying information.‖ 1 DCMR § 402.4.
18

made by the agency to assist in the identification and location of requested 

records.‖ Id.

Moreover, when a District entity subject to FOIA has difficulty

understanding a request, the regulations provide that such difficulty operates as a 

tolling mechanism. Pursuant to 1 DCMR § 405.6, which falls under a section of 

the regulations addressing ―Time Limitations,‖ the clock for production does not 

start until the request is received ―in compliance with [D.C. FOIA and its 

regulations].‖ 1 DCMR § 405.6. More particularly, if a FOIA officer, ―pursuant to 

§ 402.5, [has] contact[ed] the requester for additional information, then the request 

is deemed received when the Freedom of Information Officer receives the 

additional information.‖ Id. 

In this case, there was no reason to toll the District‘s obligation to respond to 

FOP‘s request, much less reason to deem that request void. As we read FOP‘s 

request, it reasonably described what FOP sought. FOP requested MPD emails 

from a discrete time period (November 1, 2006 to September 24, 2010) that were 

sent to or by particular individuals (Eric Holder and Mark Tuohey), or that were 

about a particular entity (the Washington D.C. Police Foundation). We fail to see 

why MPD or OCTO struggled to discern what was meant by this request, but to the 
19

extent they did, D.C. FOIA regulations obligated the agencies to ask for clarifying 

information (as MPD and OCTO both did17). At most, any lingering confusion

about what to look for or where to find it is properly considered only in 

determining whether the District‘s search was reasonable. See infra Part III.

But the crux of the District‘s argument on appeal is not that FOP‘s request 

was void due to a lack of clarity. Rather, the District argues that FOP‘s FOIA 

request was void because the effort required to respond—including the necessary 

search and review process—imposed too great a burden on the District.18 To make 

this argument, the District looks to federal cases postdating the passage of D.C. 

 

17

 Clearly, MPD and OCTO did not consider FOP‘s request void. To the 

contrary, Ms. Cenatus acknowledged receipt, gave FOP‘s request an official 

number, indicated that she would process the request, and then subsequently 

represented that, ―hav[ing] processed‖ FOP‘s FOIA request, she was producing 

1,400 pages of responsive documents to FOP. For its part, OCTO eventually gave 

MPD 16,703 pages of documents in response to FOP‘s request, which MPD then 

turned over to FOP. 

18

 The District objects to what it understands as a request that it search all 

email accounts belonging to District employees—apparently 39,000 accounts total. 

But as the District is surely aware, one cannot direct a FOIA request to the entire 

District government. Rather, a requester seeking documents pursuant to D.C. Code 

§ 2-532 (c) must target a particular ―public body,‖ i.e., a specific agency, the 

Mayor‘s Office, or the Council. See supra note 15; 1 DCMR § 402.1 (―A request 

for a record of an agency . . . shall be directed to the particular agency.‖). Thus, 

FOP‘s FOIA request can only be read as asking for a search—either by MPD or 

OCTO—of MPD email accounts. (FOP never indicated that it believed OCTO as 

OCTO possessed any responsive documents.) 
20

FOIA that have interpreted the corresponding ―reasonably describe[]‖ language in 

the federal FOIA so as to relieve federal agencies of their obligation to respond to 

requests for voluminous records.19 See, e.g., Am. Fed’n of Gov’t Emps., Local 

2782 v. U.S. Dep’t of Commerce (AFGE), 907 F.2d 203, 209 (D.C. Cir. 1990) 

(―[N]either request  ̳reasonably describes‘ a class of documents subject to 

disclosure . . . . An agency need not honor a request that requires an unreasonably 

burdensome search.‖). 

This later judicial construction of the ―reasonably describes‖ language in the 

federal FOIA statute is no more than ―instructive authority with respect to our own 

Act.‖ Doe v. District of Columbia Metro. Police Dep’t, 948 A.2d 1210, 1220 

(D.C. 2008) (quoting Wash. Post. Co. v. Minority Bus. Opportunity Comm’n, 560 

A.2d 517, 521 n.5 (D.C. 1989)); see also Fraternal Order of Police, Metro. Police 

 

19 The District also cites to Irons v. Schuyler, 465 F.2d 608 (D.C. Cir. 

1972), but as Irons predated the 1974 amendments to the federal FOIA, it could 

not have interpreted the amended statute. To be sure, the Judiciary Committee 

Report discussing the proposed amendments contains a citation to Irons, but this 

citation simply supports the Committee‘s recommendation that a request 

―reasonably describe[]‖ the records sought. See S. Rep. No. 93-854, at 162 (1974); 

see also Truitt, 897 F.2d at 545 & n.34. 
21

Dep’t Labor Comm. v. District of Columbia (FOP Lanier20), 52 A.3d 822, 829 

n.14 (D.C. 2012) (acknowledging that ―when a local law is borrowed from a 

federal statute, it is presumed that [the preexisting] judicial construction of the 

federal statute is borrowed as well,‖ but explaining that this presumption does not 

apply to judicial constructions that postdate the passage of corresponding local 

laws). Unlike the federal courts interpreting the federal FOIA, we cannot discern a 

basis to read into the ―reasonably describing‖ language of D.C. Code § 2-532 (c)

the authority to treat as void requests that the District asserts are overly 

burdensome.21

To begin with, we understand the plain language of our statute—―reasonably 

describing any public record‖—to specify the quantum and quality of the 

information that must be provided by the requester. This language modifies the 

 

20

 Due to the number of published cases addressing distinct FOIA disputes 

between FOP and the District, we incorporate the subject matter of the request in 

our short-form citation to avoid confusion. 

21

 Even federal courts that acknowledge this void-for-volume interpretation 

of the federal FOIA require an agency to justify its disregard of a FOIA request

with ―a detailed explanation by the agency regarding the time and expense of a 

proposed search [so that a court might] assess its reasonableness.‖ Shapiro v. CIA, 

No. 14-CV-19, 2016 WL 1069646, at *5 (D.D.C. March 17, 2016) (quoting Wolf v. 

CIA, 569 F. Supp. 2d 1, 9 (D.D.C. 2008)). As discussed below, see infra Part 

III.A, neither MPD nor OCTO submitted such an explanation to the trial court. 

Thus, even were we to adopt this interpretation of D.C. FOIA, the District‘s 

argument would fail. 
22

―request,‖ not the effort that must be expended or the volume of production that 

must be made by the agency. This is not to say that the burden of fulfilling a 

request is of no concern under D.C. FOIA. When a FOIA request requires 

gathering and examining ―a voluminous amount of separate and distinct records,‖ 

D.C. Code § 2-532 (d)(1) affords the District additional time to produce responsive 

documents. See supra note 2.

22 The burden of fulfilling a request may also be 

considered by the trial court in evaluating the reasonableness of the District‘s 

efforts to search for and produce documents responsive to a request. D.C. FOIA 

provides these safety valves; but there is nothing in the statute that allows a 

prospective determination of undue burden to void a FOIA request.

The legislative history of D.C. Code § 2-532 (d) further supports our 

conclusion that D.C. FOIA does not permit a determination that certain FOIA 

requests are ―void for volume.‖ This history reflects the D.C. Council‘s intent to 

put a stop to ―open ended‖ extensions for processing requests. Thus, after 

imposing an initial fifteen-day response time, the Council chose to ―more strictly 

limit[] further delay to 10 days and only upon specified unusual circumstances 

such as with a request for voluminous separate records or records which exist in 

 

22

 The District never invoked this provision when responding to FOP‘s 

request. See supra note 5.
23

other agencies or in which other agencies have an interest.‖23 See Report on Bill

No. 1-119, at 6. In light of the Council‘s aim to strictly limit extensions of time,

even to accommodate production of voluminous documents, we are hard pressed to 

see how a different provision of D.C. FOIA, which in our view addresses the 

specificity of the request, ―voids‖ ab initio a request that, in the agency‘s 

judgment, imposes too great a burden on the agency.

24

 

23

 In this respect, the District‘s statute diverges from the federal FOIA. It 

establishes a much less flexible timetable for production of documents both overall 

and specifically with respect to voluminous documents. 

The federal FOIA does not set deadlines for the actual production of 

documents; instead it sets deadlines for the agency to determine whether it will 

comply with the request, 5 U.S.C. § 552 (a)(6)(A)(i), and requires only the 

―prompt[]‖ production of documents, 5 U.S.C. § 552 (a)(3)(A). The federal FOIA 

is also much more generous in giving agencies extra time to evaluate requests that 

appear to call for particularly voluminous productions: while ordinarily an agency 

has twenty business days to determine whether it will comply with a request, 5 

U.S.C. § 552 (a)(6)(A)(i), in ―unusual circumstances‖ (including the possibility of 

an especially voluminous production, 5 U.S.C. § 552 (a)(6)(B)(iii)(II)) the agency 

can toll the deadline for this determination by notifying the requester of its need for 

additional time, 5 U.S.C. § 552 (a)(6)(B)(i). And though the agency may not claim 

an extension of more than ten business days, id., a court reviewing a claim of 

untimeliness may grant the agency additional time as needed so long as the agency 

can show it is exercising due diligence in the face of ―exceptional circumstances.‖ 

5 U.S.C. § 552 (a)(6)(C)(i). 

24

 To the extent a ten-day extension is inadequate, that is an issue for the 

legislature, not this court, to resolve. We note that the D.C. Attorney General has 

previously contacted the D.C. Council to ask it to ―address [the burden-ofproduction problem] through legislation allowing agencies additional time to 

comply with FOIA requests,‖ but to date the Council has not seen fit to amend 

D.C. FOIA in this manner.
24

In sum, we reject the District‘s argument that FOP could not challenge in 

court the adequacy of the District‘s search and production because FOP‘s FOIA 

request was ―void for volume.‖ Instead we conclude that FOP submitted a request 

that reasonably described the documents it sought, triggering MPD‘s and OCTO‘s

obligations under D.C. FOIA to identify and produce responsive material. Thus 

we proceed to examine whether the District fulfilled its obligations under the 

statute.

III. The Adequacy of the District’s Search and Production

FOP argues that the Superior Court should not have granted the District 

summary judgment because the District‘s search for responsive documents, in only 

eight MPD email accounts, was inadequate,

25 and because the District‘s Vaughn

index failed to adequately justify its withholdings and redactions.

26

 Reviewing the 

 

25 FOP has not challenged the terms employed by the District in conducting 

its search.

26

 In its briefs to this court, FOP also sought to challenge the timing of the 

District‘s two productions. But at oral argument FOP conceded that, once a 

production has been made, the only issue for the courts is the adequacy of the 

production, and if the production is adequate, the timeliness of the production is 

moot, see Fraternal Order of Police, Metro. Police Labor Comm. v. District of 

Columbia, 113 A.3d 195, 199 (D.C. 2015) (―FOP‘s request for such a declaration 

[of untimeliness] is therefore moot once the trial court determines that the District 

has adequately and completely complied with the FOIA request.‖); see also id. at 

(continued...)
25

trial court‘s ruling de novo, we conduct an independent review of the record and 

apply the same substantive standard used by the trial court. Murphy v. 

Schwankhaus, 924 A.2d 988, 991 (D.C. 2007). We conclude that the District 

failed to demonstrate that it was entitled to summary judgment, Smith v. Swick & 

Shapiro, P.C., 75 A.3d 898, 901 (D.C. 2013) (―Summary judgment is appropriate 

only when there are no material facts in issue and when it is clear that the moving 

party is entitled to judgment as a matter of law.‖), and thus determine that remand 

is required.

A. The Adequacy of MPD’s Search

In assessing whether a District entity subject to FOIA has undertaken an 

adequate search to fulfill a FOIA request, courts look not to ―the fruits of the 

search,‖ but instead to the ―appropriateness of the methods used to carry out the 

search.‖27 Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 

 

(continued...)

200 (explaining that adequate production of documents moots out litigation of 

timeliness but not of attorney‘s fees).

27 In our analysis of this issue, we rely on federal case law as well as District 

precedent because this court has endorsed the test employed by federal courts for 

evaluating the adequacy of a search for documents responsive to a FOIA request. 

See Doe, 948 A.2d at 1220.
26

2003); accord, Weisberg v. Dep’t of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) 

(―[T]he issue to be resolved is not whether there might exist any other documents 

possibly responsive to the request, but rather whether the search for those 

documents was adequate.‖). ―An agency‘s search conducted in response to a 

FOIA request  ̳need not be perfect, only adequate, and adequacy is measured by 

the reasonableness of the effort in light of the specific request.‘‖ Fraternal Order 

of Police, Metro. Police Labor Comm. v. District of Columbia (FOP

Peaceoholics), 79 A.3d 347, 360 (D.C. 2013) (quoting Meeropol v. Meese, 790 

F.2d 942, 956 (D.C. Cir. 1986)).

In FOIA cases, ―[t]he burden is on the agency to demonstrate, not the 

requester to disprove, that the materials sought . . . have not been improperly 

withheld.‖ U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989) 

(quoting Committee Report explaining that ―[p]lacing the burden of proof upon the 

agency puts the task of justifying the withholding on the only party able to explain 

it‖). When the District seeks summary judgment, this burden aligns with the 

District‘s burden as the moving party to prove there is no genuine issue of fact 

regarding its fulfillment of its FOIA obligations. The District must establish 

―beyond material doubt‖ that it expended reasonable efforts ―to uncover all 

relevant documents.‖ Nation Magazine, Washington Bureau v. U.S. Customs 
27

Serv., 71 F.3d 885, 890 (D.C. Cir. 1995) (quoting Truitt, 897 F.2d at 542). To 

carry that burden, the District ―must set forth sufficient information in its affidavits 

for a court to determine if the search was adequate.‖ Id. (citing Oglesby v. U.S.

Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); see also FOP Peaceoholics, 79 

A.3d at 360 (―The burden is on the agency to establish  ̳through reasonably 

detailed affidavits that its search was reasonable.‘‖ (quoting Maynard v. CIA, 986 

F.2d 547, 560 (1st Cir. 1993))). 

As this court has explained, it is not enough for an affidavit to merely state,

in conclusory terms, that the locations searched were ―most likely to contain 

the information which had been requested.‖ Doe, 948 A.2d at 1220-21 (quoting 

Oglesby, 920 F.2d at 68). Instead, the affidavits submitted by the District in 

support of a motion for summary judgment ―must demonstrate  ̳with reasonable 

detail[] that the search method . . . was reasonably calculated to uncover all 

relevant documents.‘‖ FOP Peaceoholics, 79 A.3d at 360 (quoting Doe, 948 A.2d 

at 1221). More concretely, the District must adequately explain both how the 

search was conducted and why it was conducted in that manner; only then can the 

trial court assess the reasonableness of the District‘s efforts. See Oglesby, 920 

F.2d at 68 (determining that an agency failed to justify limiting its search to a 

single record system where it was ―not clear from [the agency‘s] affidavit that 
28

[this] system [wa]s the only possible place that responsive records [we]re likely to 

be located‖).

In this case, the District limited its search to eight MPD email accounts. We 

agree with FOP that the District failed to explain, much less justify, this limitation. 

While the District did attach an affidavit from Ms. Cenatus, that affidavit

insufficiently explains the restricted search that she performed. And the District 

submitted no comparable affidavit detailing OCTO‘s search. As a result, we know 

very little, and nothing, respectively, about the rationales for MPD‘s and OCTO‘s 

searches, and we are thus unable to say that they expended reasonable efforts.

Ms. Cenatus‘s job as the FOIA officer for MPD was to oversee the search 

for documents in MPD‘s possession that were responsive to FOP‘s request. Yet 

Ms. Cenatus‘s affidavit does not provide the number of email accounts employed 

by MPD or describe her capacity to search MPD email accounts.

28

 On this record 

 

28

 In its opposition to FOP‘s motion for summary judgment, the District 

asserted that its ―ability to search for e-mails can reasonably be conducted one of 

two ways‖: ―individual users can manually search their computers, or the District 

can conduct a larger-scale search through [OCTO].‖ This assertion is not 

supported by Ms. Cenatus‘s affidavit or by any other document in the record. In 

any event, it is far from clear what is meant by a ―manual‖ or ―larger-scale search 

through [OCTO].‖
29

we have no idea why searching all of MPD‘s email accounts was infeasible, much 

less why it might have been reasonable for her to limit her search to the eight 

accounts selected. See Church of Scientology of Cal. v. IRS, 792 F.2d 146, 151 

(D.C. Cir. 1986) (an agency must ―describe at least generally the structure of the 

agency‘s file system which makes further search difficult‖). The District asserts in 

its brief that, because ―it would have been unreasonable for Ms. Cenatus to initiate 

a search of every District employee‘s email account, or all of MPD for that 

matter,‖ she ―needed to winnow down the implicated accounts.‖ It goes without 

saying that Ms. Cenatus as the FOIA officer for MPD is only responsible for 

reviewing MPD records. But as to those records created and stored in electronic 

form, we do not know and cannot simply assume, in this age of computerized 

connectivity, that it would be unreasonable for MPD‘s FOIA officer to search all 

of MPD‘s email accounts, regardless of how many accounts that might be.

29

 

29

 Electronic records have been subject to D.C. FOIA since the Council

extended the statute‘s coverage through the Freedom of Information Amendment 

Act of 2000, D.C. Law 13-283, 48 D.C. Reg. 1917 (2001). The Council stated that 

its intent, ―in keeping with the general purpose of FOIA,‖ was ―to provide the 

public greater access to information, improve the effectiveness of the law, and 

encourage better government responsiveness to requests for public records.‖ 

Committee on Government Operations, D.C. Council, Report on Bill No. 13-829 at 

1 (2000). As amended, D.C. FOIA provides that ―[i]n responding to a request for 

records pursuant to this section, a public body shall make reasonable efforts to 

search for the records in electronic form or format, except when the efforts would 

significantly interfere with the operation of the public body‘s automated 

information system.‖ D.C. Code § 2-532 (a-2).
30

This deficit of information alone should have precluded a determination that 

MPD‘s search was reasonable. But Ms. Cenatus‘s affidavit also failed to explain 

why the eight email accounts she selected were ―reasonably calculated to uncover 

all relevant documents.‖ See Weisberg, 745 F.2d at 1485 (quoting Weisberg v. 

Dep’t of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir. 1983)). Much as she did in 

FOP Peaceoholics, Ms. Cenatus simply asserted that she had assembled what she 

considered to be a reasonable list of individuals likely to have contact with Mr. 

Holder and Mr. Tuohey. See 79 A.3d at 361 (―[Ms.] Cenatus said she had selected 

these particular custodians based on [her] determination that they were—by virtue 

of their positions, titles and responsibilities—the individuals within MPD most 

likely to possess electronic communications responsive to FOP‘s FOIA request.‖). 

But other than stating that she assumed ―the circle where responsive emails would 

be circulated is likely fairly small,‖ Ms. Cenatus did not explain why this circle 

should be limited to eight officials, or why these eight MPD officials in particular 

were chosen and others were excluded. Nor is it clear why emailed 

communication about the D.C. Police Foundation would be limited to high-ranking 

officials. Thus, as in FOP Peaceoholics, Ms. Cenatus‘s declaration does ―not 

enable a judicial arbiter to evaluate whether the search was, in fact, reasonably 

comprehensive.‖ 79 A.3d at 361.
31

Turning to OCTO, we know even less—nothing, actually—about its steps to 

fulfill FOP‘s FOIA request, and thus we cannot evaluate the reasonableness of its 

efforts in this case. The District never submitted an affidavit from OCTO detailing 

where or how it searched for responsive emails. Ms. Cenatus stated in her affidavit 

that she ―submitted a search request to [OCTO],‖ but we do not know what OCTO 

did with that request. Assuming OCTO searched only the email accounts used by 

the eight officials that Ms. Cenatus identified, we have no idea why circumscribing 

its search in this manner was reasonable. OCTO is, after all, the arm of the District 

government that ―develops, implements, and maintains the District‘s IT and 

telecommunications infrastructure,‖

30 and it reportedly employs ―cutting edge‖ 

systems.

31

 Perhaps it is nonetheless unreasonable to ask OCTO to run searches of 

all MPD email accounts, but if that is the case, OCTO must explain why. 

Given the paucity of information provided by the District about its searches, 

we conclude that the District has failed to carry its burden to win summary 

 

30

 Office of the Chief Technology Officer, District Agency Support, 

http://octo.dc.gov/page/district-agency-support (last visited April 19, 2016); see

D.C. Code § 1-1403 (2013 Repl.).

31

 See Executive Office of the Mayor, Mayor Bowser Announces Open Data 

Initiative, Names New Chief Technology Officer, MAYOR.DC.GOV (January 12, 

2016), http://mayor.dc.gov/release/mayor-bowser-announces-open-data-initiativenames-new-chief-technology-officer.
32

judgment with respect to the adequacy of its search.

32

 That said, we do not shut the 

door to a summary judgment ruling for the District in the future. If the parties are 

unable to settle this case, but see infra Part IV, and if the District renews its motion 

for summary judgment and provides the court with sufficient detail about its email 

systems, about the mechanisms available to search those systems, and about the 

individuals likely either to have had contact with Mr. Holder or Mr. Tuohey or to 

have worked on matters related to the Police Foundation, it may yet be able to 

establish that its previous searches were adequate. See FOP Peaceoholics, 79 A.3d 

at 362 (explaining that the District might yet be entitled to summary judgment if it 

presented additional proof showing its efforts to search for documents were 

 

32

 The District suggests that it was entitled to summary judgment,

notwithstanding its failure to demonstrate that it conducted a reasonable search, 

because FOP did not ―come forward with evidence to show that other e-mail 

accounts would likely also contain responsive materials.‖ To the extent the 

District relies on our statement in FOP Peaceoholics that once the District has 

failed to meet its burden, FOP ―needs to show only that the District might have 

discovered a responsive document had the District conducted a reasonable search 

in order to defeat the District‘s motion for summary judgment,‖ 79 A.3d at 362, the 

District mistakes the familiar summary judgment standard—that the nonmoving 

party need only identify a material issue of fact on the face of the existing record—

for a novel burden-shifting requirement with no foundation in our precedent. As

explained above, the District, as the moving party, bore the burden of proof. FOP 

thus had no obligation to ―come forward with evidence,‖ if the record developed 

by the District, viewed in the light most favorable to FOP, revealed that material 

issues of fact had yet to be resolved. The District‘s failure to explain why it

searched only eight email accounts raises substantial questions about the 

reasonableness of its search and precludes an award of summary judgment to the 

District. 
33

reasonable). Thus, for now, we remand for further litigation, as needed, regarding 

the adequacy of the District‘s search for documents responsive to FOP‘s FOIA 

request.

B. The Adequacy of the District’s Vaughn Index

FOP also argues that the Superior Court should not have granted the District 

summary judgment because MPD‘s revised Vaughn index was inadequate. For the 

reasons set forth below, we decline to reach this issue.

In its order granting summary judgment to the District, the Superior Court 

acknowledged FOP‘s argument that the District‘s Vaughn index33 was incomplete 

and appeared to determine that this argument might have merit. The court directed

FOP to provide the District with ―the full list of documents not listed in the Index 

to allow [the District] to provide [FOP] with a revised index which includes the 

documents not previously listed.‖ And it ordered the District to ―supply a revised 

 

33

 The court referred to the Vaughn index, singular, but the District had 

produced two indices, one with its October 29, 2010, production and another with 

its February 11, 2011, production.
34

Vaughn index within thirty days of [FOP‘s] findings.‖ Nonetheless the court 

granted the District summary judgment in full.

When FOP moved for reconsideration, it stated that, pursuant to the court‘s 

order, it ―intend[ed] to provide a more comprehensive objection to the District‘s

Vaughn Index.‖ In addition, FOP argued, as it does on appeal, that the District‘s 

Vaughn index neither (1) corresponded intelligibly to the production that the 

District had made, nor (2) contained sufficient information to justify the District‘s 

invocation of the deliberative process privilege. FOP subsequently filed a praecipe 

in which it identified 398 documents that it asserted had been redacted but not 

listed on the District‘s Vaughn index. 

In response, the District filed a praecipe in which it (1) explained that some 

of the documents identified by FOP had not been redacted but had been 

incompletely produced for other reasons;

34 (2) announced that it was reproducing a 

number of documents in unredacted form; and (3) disclosed that it had not been 

able to locate the unredacted copies of a certain number of documents and thus was 

 

34 According to the District, in some cases ―digital images [had] failed to 

load when they were retrieved from [OCTO]‖ and others were missing information 

because of particular ―settings on the individual District employee‘s mailbox.‖
35

―unable to address the reasons for their withholding on the revised Vaughn Index.‖ 

The District subsequently filed a second praecipe attaching a superseding 76-page 

―final‖ Vaughn index of all the documents for which it was asserting some 

privilege. Months later, the Superior Court denied FOP‘s motion for 

reconsideration in a one-page order.

In light of this procedural history, the Superior Court‘s summary judgment 

ruling appears to have been premature: the court ruled on the adequacy of the 

District‘s Vaughn index even as it directed further litigation about the index‘s 

adequacy. Moreover, given the court‘s order to the parties to continue to litigate 

this issue after its summary judgment ruling, it is unclear whether the Superior 

Court took into account subsequent filings related to the District‘s Vaughn index 

when it ruled on FOP‘s motion for reconsideration (which itself was filed before 

the District filed its ―final‖ Vaughn index).

35

 In the absence of adequate assurance 

that the Superior Court examined the final Vaughn index in conjunction with the 

 

35

 The awkwardness of the situation is highlighted by the briefing to this 

court, in which FOP challenges the Superior Court‘s summary judgment ruling by 

pointing to deficiencies in the Vaughn index accompanying the District‘s October 

29, 2010, production, rather than in the District‘s ―final‖ index.
36

District‘s total production (which is not part of the record on appeal36) we conclude 

that the best course of action is to vacate the court‘s summary judgment ruling on 

this issue. If continued litigation proves necessary, the parties may raise with the 

Superior Court whether the District has ―satisf[ied] its burden to provide  ̳a 

sufficiently detailed description of what it is refusing to produce and why‘‖ in its 

most current Vaughn index.37 FOP Peaceoholics, 79 A.3d at 358 (quoting 

Fiduccia v. U.S. Dep’t of Justice, 185 F.3d 1035, 1042 (9th Cir. 1999)).

 

36

 This is another impediment to appellate review: it precludes us from 

determining the force of FOP‘s argument that it cannot match the District‘s 

Vaughn index with its production because the production documents are neither 

Bates-stamped nor adequately identifiable by other means. It is surprising, 

however, that the District has not taken this simple step, particularly given the 

documents‘ electronic format. While Bates-stamping is not mandatory, an 

agency‘s production must be organized in a way that allows a requester to easily 

identify the redacted documents referenced in a Vaughn index. See Vaughn, 484 

F.2d at 827-28.

37

 In light of our decision to reverse the Superior Court‘s summary 

judgment order and leave open certain issues for further litigation as needed, we 

vacate the trial court‘s determination that FOP was ineligible for attorney‘s fees. 

See Featherson v. Educ. Diagnostic Inst., Inc., 933 A.2d 335, 339 n.4 (D.C. 2007) 

(vacating the trial court‘s denial of appellant‘s fee request because, given the 

reversal of the trial court‘s substantive ruling, ―a ruling that appellant is not the 

prevailing party[,] and therefore[] is not entitled to attorney‘s fees, is premature‖). 

If FOP renews its request for attorney‘s fees at the conclusion of this litigation, the 

trial court may then determine whether FOP is eligible for fees under the catalyst 

theory adopted in Frankel v. District of Columbia Office for Planning & Econ. 

Dev., 110 A.3d 553 (D.C. 2015), and, if so, whether an award of fees is warranted 

under the four-part test adopted in FOP Lanier, 52 A.3d at 828-32.
37

IV. Conclusion

A FOIA requester and the District entity receiving a request are not—or 

should not be—in an inherently adversarial relationship. Litigation is authorized

as an enforcement mechanism, but it is not meant to be the inevitable path. And 

yet FOP and the District appear to have tacitly chosen a course of pitched warfare 

in the courts. As a result, over the last five years, this court has issued seven 

published opinions resolving FOIA disputes between FOP and the District. This 

opinion raises that number to eight. Each case has presented its own discrete 

issues, but the constant is an apparent inability or unwillingness by both parties to 

communicate effectively to achieve the objectives animating FOIA. Both parties 

seem to have forgotten what FOIA is all about. 

FOP‘s sole interest should be to obtain the documents it has requested. And 

yet in this case it ignored preliminary correspondence from MPD inquiring about 

its request. Then, six days after MPD produced responsive documents, FOP sued 

the District without acknowledging that this production had occurred. Perhaps 

FOP had not received MPD‘s letter announcing the production—the record is 

unclear—but the salient point is that FOP apparently never contacted MPD‘s FOIA 

officer (hardly a stranger to FOP) to inquire about the status of its request. Even 
38

after FOP collected MPD‘s initial production, FOP did not review this production 

carefully and thus did not notice for over a year that the production described as

1,400 pages only amounted to several hundred. Actions like these cause us to 

question whether FOP was more interested in obtaining responsive documents, or

in litigating about obtaining responsive documents. 

The District fares no better under our scrutiny. Its interest should be in 

fulfilling, to the best of its ability, the open-government objectives of FOIA. And 

yet OCTO‘s and MPD‘s correspondence with FOP did not advance that purpose. 

OCTO, without basis, told FOP it would not process FOP‘s request. MPD, for its 

part, objected that FOP‘s request was vague when it was not and indicated that 

additional information was needed to process that request, even though MPD had 

already begun to do so. MPD then asserted that it was entitled to more time to 

process FOP‘s request under D.C. Code § 2-523 (d) because another agency, 

OCTO, had a ―substantial interest in the determination of this request,‖ when 

OCTO had no such interest. 

And even though MPD ultimately produced two sets of responsive 

documents, it did so in a manner apparently designed to ensure defects in 

production. MPD claimed that its initial production comprised 1,400 pages of 
39

documents, but it presented no records to substantiate this claim, even when FOP 

asserted that MPD had turned over only a few hundred pages. And MPD‘s second 

production inexplicably took paper form, even though all responsive documents

were electronic and could have been produced in that form (as they ultimately 

were). MPD then divided these hard copies—some 16,000 pages of documents—

into ―25 to 35 envelopes,‖ which it mailed to FOP without advance notice, 

tracking, delivery confirmation, or proof of mailing. Actions like these suggest 

that the District, like FOP, is more interested in gamesmanship than in FOIA 

compliance. 

While the text of the D.C. FOIA statute does not require the District and 

frequent FOIA requesters like FOP to consult in good faith, the course of this 

litigation illustrates the imperative to do so. We cannot order FOP and the District 

to end their FOIA feuds, but we can require them to engage in mediation so that 

they might determine whether settlement is possible, or at least narrow the areas of 

dispute, before resuming litigation. See D.C. Code § 17-306 (2013 Repl.)

(authorizing this court, in the disposition of an appeal, to ―direct the entry of such 
40

appropriate order, judgment, or decision, or require such further proceedings to be 

had, as is just in the circumstances‖).38 

For the reasons set forth above, we reverse the order granting summary 

judgment to the District and remand this case to the Superior Court with the 

directive that it enter an order requiring the parties to engage in mediation before 

resuming litigation in this case. 

So ordered.

 

38

 We also encourage FOP and the District to meet outside the context of 

litigation to discuss how the District‘s FOIA compliance can be improved. We 

understand that FOP, as an institutional litigant, provides some service to all 

potential FOIA requesters by suing the District to hold it to its obligations under 

the statute. But we also recognize that the District, while fulfilling its FOIA 

obligations, has a government to run. There are limits to the benefits of litigation, 

for both FOP and the District. We urge more communication and collaboration.