Case 1:16-cv-01959-DLF Document 30 Filed 10/23/18 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RYAN NOAH SHAPIRO,

Plaintiff,

v. Civil Action No. 16-01959 (DLF)

U.S. DEPARTMENT OF JUSTICE,

Defendant.

THE DISTRICT OF COLUMBIA’S RESPONSE TO

THE COURT’S AUGUST 23, 2018 MINUTE ORDER

The District of Columbia (the District) files this response as amicus curiae

regarding its position in this litigation—namely, that the Lewis list should remain

exempt from disclosure under the Freedom of Information Act, 5 U.S.C. § 552 et seq.

The District adopts and incorporates by reference all arguments that the U.S.

Attorney’s Office for the District of Columbia raised in its Motion to Dismiss or, in

the Alternative, for Summary Judgment [14]. Additionally, the District asserts that

disclosure of information on the Lewis list would have a significant, adverse impact

on officers of the District of Columbia Metropolitan Police Department (MPD) and, in

turn, on District of Columbia residents for the following reasons:

• Most significantly, the release of information on the Lewis list could

endanger the safety of MPD officers as well as third parties who may be
serving as cooperative witnesses or confidential sources for MPD officers by
facilitating retaliation against them. See Ex. A (Declaration of Robert
Contee in Support of the District of Columbia’s Response to the Court’s
August 23, 2018 Minute Order), ¶¶ 8, 9.
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• The release of information on the Lewis list could also harm the reputations
and damage the credibility of MPD officers. Similarly, it would violate the
officers’ privacy. See id. ¶¶ 5, 6.

• The release of information on the Lewis list would have an adverse impact
on the employment status of MPD officers by curtailing their opportunities
for internal promotion and advancement and for outside employment or
second careers after they retire. See id. ¶¶ 7, 11.

For the foregoing reasons, as well as those stated in the U.S. Attorney’s Office’s

Motion to Dismiss or, in the Alternative, for Summary Judgment, the Court should

grant defendant’s Motion, and dismiss this case without requiring disclosure of the

Lewis list.

Dated: October 23, 2018. Respectfully submitted,

KARL A. RACINE
Attorney General for the District of Columbia

TONI MICHELLE JACKSON

Deputy Attorney General
Public Interest Division

/s/ Fernando Amarillas

FERNANDO AMARILLAS [974858]
Chief, Equity Section

/s/ Robert Rich

ROBERT RICH [1016908]
Assistant Attorney General
441 Fourth Street, N.W., Suite 630 South
Washington, D.C. 20001
Tel: (202) 724-6591
Email: robert.rich@dc.gov

Counsel for the District of Columbia

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EXHIBIT A
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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RYAN NOAH SHAPIRO,

Plaintiff,

v. Civil Action No. 16-01959 (DLF)

U.S. DEPARTMENT OF JUSTICE,

Defendant.

DECLARATION OF ROBERT CONTEE IN SUPPORT OF

THE DISTRICT OF COLUMBIA’S RESPONSE TO
THE COURT’S AUGUST 23, 2018 MINUTE ORDER

I, Robert Contee, declare as follows:

1. I currently serve as the Assistant Chief of the Investigative Services

Bureau at the District of Columbia Metropolitan Police Department (MPD). I have

been an MPD employee since 1992 and have served in numerous supervisory and

command roles, including, but not limited to, sergeant, lieutenant, district

commander, Assistant Chief of the Professional Development Bureau, and Patrol

Chief of Patrol Services South.

2. I was appointed to my current position as Assistant Chief of the

Investigative Services Bureau (ISB) by Chief of Police Peter Newsham in March 2018.

As the head of ISB, I am responsible for investigating criminal offenses, bringing

offenders to justice, and providing assistance to crime victims.

3. I make this declaration upon personal knowledge, including information

provided to me by other District of Columbia employees in the course of my official

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duties as Assistant Chief. I have also reviewed the Complaint that plaintiff filed on

September 30, 2016, initiating the above-captioned lawsuit.

4. As a result of my experience and responsibilities in the positions listed

above, I am intimately familiar with the policies, procedures, and practices of MPD.

Additionally, although I do not have access to the specific information as it is stored

in the Lewis list, I have substantial knowledge and experience regarding its

existence, purpose, and management. The Lewis list refers to a database maintained

by the U.S. Attorney’s Office for the District of Columbia (USAO-DC) that identifies,

among other things, allegations of misconduct against MPD officers. The Lewis list

database contains the names of all MPD officers, and it tracks the investigations of

officers suspected of criminal conduct. The investigations are then reviewed to

determine whether an officer’s credibility as a potential witness at trial may be called

into question. MPD officers with whom I dealt as a supervisor and manager are

acutely aware of the Lewis list and its possible adverse ramifications if the list

identifies an officer as under investigation.

5. The mere placement of an officer’s name on the Lewis list is an

embarrassment to the officer in that it indicates that his or her credibility has been

called into question. However, because of the confidential, sensitive nature of the

information that the list contains, an officer often has no way of obtaining additional

information about the underlying facts of the incident or the alleged misconduct that

is under review.

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6. The release of the names of officers on the Lewis list in response to

plaintiff’s Freedom of Information Act (FOIA) requests in the above-captioned lawsuit

would be a violation of the officers’ privacy. The reputations of officers would certainly

be damaged both within and outside MPD. As a general rule, MPD invokes the

corresponding exemption under the District of Columbia FOIA statute, see D.C. Code

§ 2-534(a)(2), when similar information is sought through a request to MPD.

7. The placement of an officer’s name on the Lewis list can have a

damaging effect on his or her career because, while the officer remains on the list,

MPD supervisors will make efforts to ensure that the officer’s assignments do not

entail any significant participation in any arrest or investigation that could result in

the need to testify in court. Accordingly, while an officer is on the list, his or her

promotional and advancement opportunities are significantly reduced.

8. The disclosure of the information plaintiff seeks in his FOIA requests

would also entail the full or partial release of officer investigative files containing

third-party information from other MPD officers or from civilian witnesses. The

release of this information could jeopardize the relationships these individuals have

with officers on the Lewis list, including as part of investigations or proceedings that

are entirely unrelated to those that led to the officer’s initial placement on the list.

The information from these files, if released, could endanger the safety of officers by

facilitating retaliation against them by identified and unidentified third parties.

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9. The Lewis list database also contains the names or personally

identifiable information of third parties assisting in MPD investigations, including

the names of cooperative witnesses and confidential sources. The disclosure of the

information plaintiff seeks in his FOIA requests would endanger these third parties

who may be cooperating with or serving as confidential sources for MPD officers

working on active investigations or pending proceedings. Such individuals could face

threats, humiliation, or harassment if their contacts with law enforcement officers

were disclosed publicly.

10. The disciplinary records available to USAO-DC Lewis list committee

members may contain misconduct findings that were made years ago and outside of

the prescribed retention schedules for MPD personnel records. The disclosure of these

records in response to plaintiff’s FOIA requests would cause undue embarrassment

and humiliation to the officers who have long since been disciplined for any alleged

misconduct.

11. The release of information appearing in the Lewis list would have an

adverse impact on MPD officers even beyond their employment with MPD. Many

MPD officers are engaged in outside employment. These officers would be subject to

embarrassment and humiliation from their outside employers if the employers

became aware that an officer’s credibility or reputation had been called into question

by a law enforcement agency. Similarly, many MPD officers start second careers after

they resign or retire from MPD. These officers would likely receive fewer

opportunities, or even the absence of any opportunity, to start a new career if

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