August 22, 2017 Via e-mail: ethan@dailycallernewsfoundation.org Ethan Barton, Investigative Reporter, Daily Caller News Foundation, 1050 17 Street, NW Washington, DC 20036 Re: Public Access to Records Policy (PARP) Appeal 16-9214 (Appeal of the Partial Denial of PARP 16.0214) Dear Mr. Barton: ‘This is a decisioa regarding your June 14, 2017, administrative appeal! of the Washington Metropolitan Area Transit Authority (WMATA)'s partial denial of records pertaining to Metro Transit Police Commendation or Complaint Forms and WMATA Customer Comment Forms submitted in ‘November 2016: Pursuant to WMATA’s Public Access to Records Policy (PARP),? the appeal was reviewed by an Administrative Panel composed of Patricia Y. ‘Lee, General Coansel; Joseph Leader, Chief Operating Officer; and Lynn Bowersox, Assistant General Manager of the Department of Customer Service, Communications and Marketing.* | Although the appeal was dated June 13, 2017, it was rcsved alr $ pam, Eastern Jretnaoe | Tine, and thus is casideed to have been submited on the next sissy. Sex CP. ermatintens For Biological Diversity v. Gutierrez, 481 F.Supp. 2487, 60 (D.D.C 2006 noting tha, Tams te for purposes of appealing adverse records determinations, "nomal (agency) business | ours extend fom 830m, o Spam, Este Time, Monday tough Friday") weorensa26i | > As disused in frher detail eri, you orginally requested records dated fom May venees 1,2015, to November 30, 2016, However, you subsequemlyagresd to nr the sop _ofyourequest ta enesonth eid (November 1,216, 0 November 30, 216). | 2 Patiemed after, bit legally distinct from, the federal Freedom of Information Act FOIA), the PARP was enacted in accordance with WMATA’s interstate Compact and, 85 such, carries the force of law.. See Pub. L- No. 89-774, 80 Stat. 1324 (1966), DI Code Ann. § 9-1107:01 (2017); Md. Code Ann, Transp. § 10-204 (2017); Va. Cade | Asm. § 582-3100 @OID. "A copy of the PARP is avaiable online at scam. | hnps:ewwe mata convabout record ‘mstrmemie | & Sse PARP $§ 9.1,9.13. Lynn Bowersox was designated to serve as a panlist byInre Appeal 16-9214 (Appeal of Records Request 16.0214) Page 2 In the sections that follow, the Panel will set forth the procedural history of the appeal and will then explain the legal bases upon which we denied it. I. Background: On November 30, 2016, you submitted two PARP requests for the following records: First Request 1) Copies of any and all comments submitted using Metro Transit Police Commendation or Complaint Forms since May 1, 2015; 2) Copies ‘of any and all responses from WMATA to the submitter; 3) Copies of any and all documents regarding actions WMATA took to resolve any issues raised by the submissions; and 4) Copies of any and all communications regarding cach submission and resulting actions. Second Request: 1) Copies of any and all comments submitted using WMATA Customer Comment Forms since May 1, 2015; 2) Copies of any and all responses from WMATA to the ‘commenting customer, 3) Copies of eny and all documents regarding actions WMATA took to resolve any issues raised by the comments; and 4) Copies of any and all communications regarding cach ‘comment and resulting actions. On December 14, 2016, WMATA informed you that we had aggregated ‘your two requests into a single four-part request for 1) Copies of any and all comments submitted using Metro Transit Police Commendation or Complaint Forms and WMATA Customer Comment Forms since May 1, 2015; ‘Barbara Richardson, WMATA"s Chief of External Relations, who was unavailable t0 consider the appeal * Soe Attachment I (Iti PARP Request 16-0214 (Received 11/30/2016))Inre Appeal 169214 (Appeal of Records Request 16.0214) Tage 3 2) Copies of any and all responses. from WMATA to the ‘comments requested in part 1; 3) Copies of any and all documents regarding actions WMATA. took toresolve any issues raised by such comments; and 4) Copies of any and all communications regarding each such ‘comment and any resulting actions.® WMATA further informed you that your aggregated request was burdensome, and that therefore you were required lo marrow i¢ withia 10 business days, or it would be closed.” On December 16, 2016, you agreed to narrow your PARP request to the three-month period from September 1, 2016, to November 30, 2016. You also expressly withdrew part 4 of your request.® On January 24, 2017, we advised you that your PARP request was still ‘burdensome, and, therefore, needed to be further narrowed. On January 26, 2017, you agreed to limit your request to the one-month period from ‘November 1, 2016, to November 30, 20162 (On May 30, 2017, WMATA issued a decision that partially granted part 1 of your PARP request” In accordance with that decision, we released 243 pages of records reflecting the Metro Transit Police and WMATA custemer ‘comments received in November 2016." These records also listed the dates * Section 8.10 of the PARP provides for aggregation of records requests by the same requester or by a group of requestors acting in concert, if WMATA reasonably beleves that such requests actually constitute a single request, or involve clearly related mates, 7 Section 7.5 ofthe PARP requires requesters total ther requests “to enable WMATA 1 locate [the responsive records] them with a reasonable amount of effort.” Morcove, it is wellestablished that a requesters failure to sulficently clarify and narrow his information request constituted a filure 10 exhaust administrative remedies, ths requiring denial of the request. See, eg, DE Brew v. Atwood, 847 F. Supp. 24 95 @DC.2012), * See Attachment 2 (Fist Narrowed PARP Request 16-0214 (Received 12/16/2016) ° Soe Attachment 3 (Second Narrowed PARP Request 16-0214 (Received 1/2672017)) See Attachment 4. (nitial Decision re: Part 1 of PARP Request 16-0214 (Sent 5/30/2017) © ‘See Attachment 5. (“Online Metro Transit Police and WMATA Customer Comments forthe Month of Novenber 2016,” redacted pursuant to PARP § 6.14 (confidential ‘commercial information) and PARP § 6.1.6 (personal privacy).){Inve Appeal 16-9214 (Appeal of Records Request 16-0214) Page 4 that the comments had been received, as well as information regarding their dispositions, to the extent available.” On June 7, 2017, you inquired about the remaining parts of your PARP request." Two days later, we denied the remainder of your request on the grounds that no additional responsive records existed apart from communications reflecting the pre-decisional, internal deliberations of WMATA personel, which were exempt from release under PARP § 61.5.4 On June 14, 2017, you appealed the denial of parts 2-4 of your PARP request, and on August 1, 2017, the Panel convened to assess the merits of ‘the appeal? Il, Bases for Decision: ‘The arguments raised in the appeal are three-fold. First, you contend that "2 Id. The released records encompassed a 243-page spreadsheet, which contained information regarding Metro Transit Police and WMATA Customer Comments for the Month of November 2016. Mos: of the underlying information had been inputted manually. However, where none hai been provided, 2 default "No Value” etry had been Automatically entered inthe relevant cell.” As discussed in farther detail inthe next ‘session, WMATA is only required to provide exiting documents in response to pubic records requests. See NLRB v. Seas, Roebuck & Co., 421 US. 132,95 S.Ct 1504, 44 LBd2d 29 (1975) (holding that agencies are not required to create documents in response to pubic records request); see. also Ce. for Pub. Integrity v. FCC, 505 F. ‘Supp. 24 106, 114 (D.D.C. 2007) recognizing thatthe creation of new rocords is “of ‘course... not required by FOIA”) (intemal citations omitted). ° Seq June 7, 2017, Ema fom Ean Barton to Emily Woodward Deutsch Specifically, we informed you tht, othe extent that you were seeking final responses and actions regarding Metro Transit Police and WMATA customer comments, sich ‘comments were oftentimes resolveé verbally and, in those instances, there would be no responsive ecords. We further informed you that, to the degree that any other records ‘existed reflecting pre-decisional,inernal discussions, they would be exempt pursuant to PARP § 6.1.5. See Attachment 6. (lune 9, 2017, Decision (noting. that “records responsive to [the remainder of the request]” were denied pursuant to PARP § 6.1.5 Cnteral deliberative process))) ' Seo Attachment 7 (PARP Appeal), page 1 (arguing that “{w]hile portions of {the} responsive records may fall under PARP Exemption 6.1.5, the final determinations and Solutions would not," and further arguing that {these records are especialy important for release, as they would show that issues identified by WMATA customers are resolved")Inve Appeal 16-9214 (Appeal of Records Request 16-0214) Page S there are records responsive te parts 2-4 of your request that are not covered under any PARP exemption, and therefore should be released. Second, you allege that, to the extent that other responsive records are covered under PARP § 6.1.5, this exemption should be waived. Third, you claim that any records released on appeal should be provided in their original clectronic format. [At the outset, the Panel observes that you affirmatively withdrew part 4 of your request before WMATA issued the decision below.'® Therefore, this part of your request has been waived, and is not properly on appeal.” Moreover, the Panel sees no reason to distur WMATA’s prior denial of parts 2 and 3 based on the arguments that you have presented, which we shall address in turn. First, you contend that additional responsive records exist, which are not subject to any PARP exemption.'* However, that is simply not the case. By definition, records refer to written documents and other recordings, such as audio and video footage.” They do not include unrecorded verbal See note 7, supra (explaining requester’ obligation to narow burdensome records requests). See McDonnell Douglas Corp. ». NASA, 102 F. Supp. 24 21, 24 (D.D.C. 2000) (Gismissing appeal on grounds that underlying. public records’ request had been ‘withdrawn) reconsideration denied, 109 F. Supp. 2427 (D.D.C. 2000). Even part 4 of, your request were properly on appeal, however, it would implicate the same records, and thus be deniable on the same grounds, as parts 2 and 3. " See Attachment 7 (PARP Appeal), page 1 (arguing that “[w]hile portions of {the} responsive records may fall under PARP Exemption 6.15, the final determinations and Solutions would not,” and further arguing that [these records are especially important for release, as they would show that issues identified by WMATA customers are resolved"). \ Section 4.7 of the PARP defines “records as existing writings and other forms of documented ‘or recorded expresson. This definition is consistent with cours!) interpretation ofthe term under the federal FOLA. See e.., Blunt-Bey v. US. Dep of Jastice, 612 F, Supp. 2d 72, 75 (D.C. 2009) (applying the “dictionary meaning of the word “record” []}as that which is writen or wanseribed to perpetuate knowledge or events,” since the FOIA failed to define the term) intemal citation omitted), gol! Office of Inspector Gen, US. Dep't of Justice, 125 F, Supp. 34 274,283 (D.D.C.2015), aff, No. 15273, 2016 WL 6238495 (D.C. Cit. Sept. 22,2016), cert. denied sub nom. Agi v. Office of Inspector Gen, Dep't of Justice, 137 8. Ct. 1108, 197 L. Ed. 24 210 (2017) (holding that an agency's daty to conduct a reasonable seach in response 10 & request doesnot include recreating records destroyed in the normal course of busines).‘Inve Appeal 16-9214 (Appeal of Records Request 16.0214) Page 6 responses to Metro Transit Police and Customer comments.” As noted in WMATA’s decision below, such comments are “oftentimes” resolved verbally, without the issuance of any written decision or recorded action." ‘You assume thatthe term “oftentimes” implies instances in which recorded responses to Metro Transit Police and Customer comments do exist? However, following a search that was reasonably calculated to satisfy your request, WMATA was unable to locate any recorded responses, of other documented actions, taken to resolve the comments received by Metro Transit Police in November 2016 Similarly, WMATA was unable to locate any records of responses or other actions taken to resolve the customer comments received during that time period. * Moreover, while, as noted in the appeal, several comments released in response to part 1 of your request contained “No Value” entries, these were nor indicative of additional responsive records that had been withheld. Rather, such enties denoted 2 lack of information recorded in response to certain Metro Transit Police and WMATA customer comments. WMATA is not required to create additional records where none exist As such, the Panel finds that there are no additional responsive records availabe for release, and thatthe initial argument raised on appeal is therefore without merit. Second, you allege tha! WMATA ought to release the records that it withheld under PARP § 6.1.5, “such as communications where WMATA ia 2 See attached June 9, 2017, Decision (noting that “(WMATA] employees oftentimes hhave verbal discussions regandng resolving these types of issues, and therefore, in these instances, there would be no responsive records) ® Seo attached PARP Apped (alleging th instances where records do in fac, exis). ® See DiBacco ¥. US. Army, 795 F.3d 178, 191 (DC. Ci. 2015) (quoting SafeCard Serees, inc. v. SEC, 926 1 24 1197, 1201 (D.C. Gi. 1991) (holding that “(when a plaintiff questions the adequacy of the search an agency made in order 10 siisty its Irecords} request the facta! question it raises is whether the search was reasonably calculated to discover the requested docament, not whether it actually uncovered every document extant”) a % See note 12, supra (noting that the 243-page spreadsheet released to the requester included defaut “No Value entries where relevant information had not bee entered), % See note 12, supra (citing case law in support of proposition that agencies are not required to reat documents esponse to public records requests). “oftentimes,” by definition, means ther areInre Appeal 16-9214 (Appel of Records Request 16.0214) Page? officials discussfed] how to respond to WMATA customers and how to resolve issues.”” However, this argument also is without merit. The withheld records, which were generated before WMATA undertook any formal response or other final action, reflect the intemal deliberations of ‘our personnel in resolving customer comments. Such records are inherently pre-decisional and deliberative, and thus fall squarely within the ambit of PARP § 6.1.5. You do not disagree, but ask that WMATA should waive this exemption to increase public understanding of WMATA operations, and to reassure customers that their concerns and complaints are being taken seriously.” However, this presumes that WMATA has no other means to inform customers about our operations, or to publicly acknowledge ani address theit concerns and complains. In fact, we have several methods of doing so, including our Metro Rider Guide, operational alerts, press releases, crime statistics, and public hearings and meetings transcripts. °° These resources, which are all available on our website, collectively shed more light on WMATA. operations, and are of greater interest to the public at large, than the pre-decisiona, internal deliberations of our personne! with regard to the comments of select individuals.®! As ® ‘See attached PARP Appeal, page 2 (alleging that “records that do fll under PARP [Exemption 6.15, such as communications where WMATA officials discuss how to respond to WMATA customers and how to resolve issues, [should] be released” on the grounds that doing so “would be especially helpful to WMATA. customers? understanding ofthe organization and) would reveal that WMATA takes customers’ ‘complaints seriously and respects their concerns” and further alleging that “[Jhere is no public evidence thar WMATA responds to customers who identify concerns, no is there ‘public evidence that WMATA corrects thelse) issues”). ™ See Pub Citizen nc. v. Office of Mgmt & Budget, $98 F.34 865, 874 (D.C. Cit, 2010) (Golding tha, to warrant protection under Exemption 5, a document must be both pre- Gecisional (generated before the adoption of an agency policy) and deliberative (eflectng the giveand-ake ofthe consultative process) internal citations omitted), » See note 27, supra, % See Rider Guide st hps:/nwww.wmata.comMider-guidel; Operational Alerts at Inups:iwww.wmatacomiiderguide'ubscribel; Press” ‘Releases at htps:/www.wmatacomlaboutnewwindexcfin; Crime Statistics at hitps:/ww.wmataconvabouvtransitpolicelrime-stats cm; and Public Hearings and Meeting Transriptsat tps: /www. wma con/abou/pubichearingvindex.cfm. | WMATA recognies there may be oveasions in which the final actions taken in response to specifi: Metro Transit Police and customer comments could have fit- ‘reaching implicatins. In such instances, WMATA would release the records ‘surounding such comments to any PARP requester who demonstrated their public value.Ine Appeal 169214 (Appeal of Records Request 16.0214) Page § such, the Panel finds that making these resources available online, while withholding the specific records sought on appeal,” is consistent with the core purpose of the PARP. The Panel also finds that protecting WMATA’s pre-decisional, internal deliberations is critical for promoting candor and thoughtful debate, which, in tum, is crucial for resolving customer concems and complaints. Together, these factors. strongly support WMATA’s application of PARP § 6.1.5 in the decision below.®* Hence, the Panel finds that this particular exemption should not be waived ‘with respect to any of the records that WMATA withheld in that decision. ‘Third, having established thatthe only records not provided in response to your request were properly withheld under PARP § 6.1.5, the Panel finds that your final argument - that WMATA should release such records in their original format —is moot.!* Even if additional records were available for release, however, we sill would find your final argument to be without However, such a showing was not made with respect to any ofthe comments requested here. See Marino v. Drug Enft Admin, 15 F. Supp. 34 141,153 (D.D.C. 2014) (quoting ‘Natl Archives & Records Adm. v. Favsh, 81 U.S. 157,172 (2004) fr the proposition that, once the applicability ofa exemption has been established, the burden shifts tothe requester to demonstrate thatthe “public interest sought to be advanced i a significant ‘one, an interest more specific than having the information for its own sake”), ® ‘Although WMATA is unclear of the intended audience for the requested records, releasing them to you would tave been tantamount to posting them on our website, of otherwise disseminating them to the general public. See Favish S41 US. at 160 (recognizing "[}he well-known maxim . that Yeleae to one is release to all” under the federal FOTA, upon which the FARP is based) (itera citations omitted). The core purpose ofthe PARP isto advance popular understanding of “the operations or activites of the governmeat” that concer the general public. See US. Dept. of Defense v. Federal Labor Relaions Authority, $10 US. 487, 14S. Ct. 1006, 127 L.Ed, 24 325, 145 LRRM. (BNA) 2513, 22 Media L. Rep. (BNA) 1417 (1994); see also ‘Favish, 541 US. at 171 (ooting that the federal FOIA, upon which the PARP is based is ‘often explained a5 a means fr citizens to know “""what their Government is up to") (Goteral citations omitted) Sg Island Film, S.A. v. Dep'of the Treasury, 869 F. Supp. 24 123,135 (D.D.C. 2012) (holding that Exemption 5 protects records that if released, would inhibit candor in future agency deliberations and otherwise chill debate). ® See id. (holding tha, absent clear evidence to the contrary, an agency/s assessment ‘regarding the applicability of Exemption Sis entitled to deference). Sop atached PARP Appeal, page 2 (roqueting that any records provided on appeal be released in xlsx, 5, of xls form)Inve Appeal 169214 (Appeal of Records Request 16.0214) Page 9 merit, To safeguard the integrity of WMATA’s information, records released pursuant to the PARP are provided in a password-protected PDF format, or are otherwise secured” This policy is intended to guard against the well-established risks associated with disclosing records in their ‘original format.™* Such risks aave been recognized by other agencies, ‘which have adopted similar measures for ensuring the security and integrity of their public records.” IL. Conclusior For the foregoing reasons, the Panel finds that the relevant facts and law support WMATA’s prior determinations regarding parts 2 and 3 of your PARP request. Therefore, we deny the appeal. In accordance with PARP § 9.3, you may appeal this decision by seeking injunctive or declaratory relief any state or federal court in the District ‘of Columbia, Maryland or Virgnia. For further details, please see the See Christopher R. Meltzer, More Than Just Ones and Zeros: The Reproducibility of ‘Metadata Under the Freedom of Information Act, 9US: 1. & Pot'y oR INFO. Soc'Y 327, 346-47 (2013) ("Requiring that a government agency produce records in native Tormat opens the floodgates forthe inadvertent release of confidential information to any individual, including an adversary, by 2 goverament agency... The most secure way (0 censure that any exempt information is kept confidential through the redaction process is to conver the filet PDF). ™ Seo i. at 34849 (2013) Cf records requested under (public information laws] were seauited tobe produced in native fora any confidential information that was redacted ty {an} agency bas the possibly of being recovered by an enterprising adversary ven more disturbing i the possibilty of confide! infomation being relssed to adversaries simply because government agencies would be requed (0 produce locament in native format so that mada (while sometines wll relevant) canbe sven to the requester") ° For example, California's municipal policies and state regulations afford agencies wide iscetion in prsetng information raced in response to public ecoeds requests. Set Septomber 19, 2006, SAN FRANCISCO CITY ATTORNEY GUIDELINES FOR PROVIDING ELECTRONIC RECORDS IN PDF WHEX RESPONDING TO PUBLIC RECORDS REQUESTS, available at htpsifwww sfetyatomey or wp-ontenupoady/201S17 Providing: leetonc-Recordsi-PDFRatherhan-Word-Format-When-Respodings.o-a-Public Records-Request pl See also Cal. GOV'T CODE § 6253.) ("Noching in this seston shall be construed 1 require a) puble agency to release an electronic recordin the electronic form in which iti held by the agency if is release would jeopardize or compromise the security or integrity ofthe orginal records of any proprietary soRware in which tis maintained”). (Emphasis added)Ire Appeal 169214 (Appeal of Recols Request 16-0214) Page 10 provisions of the PARP regarding judicial review at htps:/www.wmata.convabout/records/:? Sincerely, ‘Assistant General Manager, Customer Service, Communications and Marketing ‘Attachments: 1) Initial PARP Request 16-0214; 2) First Narrowed PARP Request 16-0214; 3) Second Narrowed PARP Request 16-0214; 4) Intial Decision re: Part 1 of PARP Request 16-0214; 5) Records Accompanying Initial Decision regarding Part 1 ‘of PARP Request 16-0214; 6) Final Decision re: PARP Request 16-0214; and 7) Appeal of Partial Denial of PARP Request 16-0214, “This is a required notice and is not intended as lgal advice.