Attorneys for D.C. are saying that even if the Metropolitan Police Department maintained a “watchlist” of critics whose requests for public records were funneled up to the department’s top leaders, such a list had little notable impact on the outcome of those requests and was only used to keep those leaders in the loop.

The city’s arguments were laid out in a court filing late Friday where Attorney General Karl Racine asked a federal judge to dismiss an explosive lawsuit filed last month in which a defense attorney alleged that the watchlist included reporters, lawyers, advocates, and critics whose requests for public records under the Freedom of Information law were improperly delayed or denied because they could embarrass the police department.

The lawsuit says the creation and maintenance of the watchlist was an unofficial policy under former chief Peter Newsham, and that a former police official-turned-whistleblower testified to seeing it in action.

Amy Phillips, the defense attorney who filed the lawsuit, told DCist/WAMU that such a watchlist would mean that MPD was impermissibly and unconstitutionally playing favorites. “People who are friendly to the police department are getting access to information that they can use to advocate for their interests while people that MPD perceives as being unfriendly to them don’t have access to the information that they would need in order to make a case for reforms that we think are necessary,” she said.

But Racine argues in his response that any delays in providing requested records to police critics like Phillips and the ACLU of D.C. were “mere isolated lapses” that “do not suggest there is a pattern of adverse treatment.” He also says there would be nothing nefarious in informing department leaders about records requests from reporters, attorneys, or police critics.

“Providing information up the chain of command to ensure that the Chief of Police is prepared to communicate to the press about high profile matters or issues that may be the subject of future litigation is a sensible policy; MPD has a substantial government interest in providing accurate information to the public, both for its own sake and for the sake of fostering public confidence in the police force,” says the city’s filing.

“Additionally, the added oversight of MPD leadership has the benefit of ensuring the accuracy and propriety of the information released in response to a FOIA request, especially those requesting voluminous data or of particular interest to the public. This supports MPD’s interest in providing accurate information to the public,” it adds.

Charlie Gerstein, Phillips’ attorney, rejects this argument.

“They say it’s fine to slow down the release of information so that the department has more time to review it. But they don’t say that the purpose of that review is in some sense to frustrate public criticism. And that’s the core of our allegation. We don’t just allege that they’re delaying so that they have a better and sometimes even more appropriate response. Instead, we allege that they’re delaying for the purpose of slowing down public criticism, and we have many occasions in the complaint which we allege that information was improperly withheld,” he says.

One of those cases cited in the original lawsuit involved the ACLU of D.C., which in 2019 requested six months of data on stop-and-frisks. The whistleblower, former FOIA officer Vendette Parker, said she was instructed to find ways not to disclose the data “because the records had the potential to result in significant public criticism of MPD.”

“MPD’s blacklist practice is part of a broader pattern of resistance to transparency and public accountability. The ACLU of the District of Columbia has sued MPD on numerous occasions for failure to comply with FOIA requests and for the three-year delay to begin collecting data on police stops as mandated by the NEAR Act. The MPD’s stubborn resistance to basic transparency laws strongly implies they know they have something to hide,” said the ACLU in its own statement after the lawsuit was filed.

In his filing asking for the lawsuit to be dismissed, Racine also says that the watchlist policy was at best an unofficial initiative by Newsham and doesn’t implicate current Police Chief Robert J. Contee III. But Gerstein disagrees, saying that the policy went on for long enough to be considered established practice and that current MPD employees have told Parker that it continues.

Gerstein says he plans to file a response urging the judge not to dismiss the case, and instead allow it to proceed to the discovery phase, when he would be able to request documents from MPD on the use of the watchlist policy.

This post was updated to clarify that D.C. did not concede that an MPD “watchlist” existed, but rather that attorneys for the city had to assume the claims made in the lawsuit about the list were true.