Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 1 of 14

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

K. DENISE RUCKER KREPP,
1837 A Street SE
V/ashington, DC 20003,

Plaintiff,

CIVI

VS.

ACTION NO.

UNITED STATES DEPARTMENT OF
ruSTICE,
950 Pennsylvania Avenue NW
V/ashington, DC 20530-000 1,

Defendant.

COMPLAINT F'OR DECLARATORY AND INJUNCTIVE RELIEF
INTRODUCTION

1.

This is an action under the Freedom of Information Act ("FOIA"), 5 U.S.C.

$ 552, to enforce the right of the citizens of the District

of Columbiato have

access

to criminal

prosecution data maintained by the United States Department of Justice (the "DOJ").

2,

On November 5, 2015, Plaintiff K. Denise Rucker Krepp ("Ms. Krepp") filed a

FOIA Request (the "Request") seeking data concerning criminal prosecutions in the District of
Columbia handled by the DOJ. A copy of Ms. Krepp's Request is appended hereto as Exhibit

1.

Specifically, the Request sought:

o

The number of criminal homicide, rape, robbery, aggravated assault, burglary,
larceny, motor vehicle theft, and arson arrests that DOJ attorneys reviewed;

o

The number of criminal homicide, tape, robbery, aggravated assault, burglary,
larceny, motor vehicle theft, and arson cases DOJ attorneys prosecuted;

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 2 of 14

o

Of the crimes prosecuted, the conviction rate of each crime; and

o

How many criminal homicide, rape, robbery, aggravated assault, burglary,
larceny, motor vehicle theft, and arson arrests were resolved by plea deals.

3.

Ms. Krepp's FOIA Request sought the data above for the time period of January

I,2010 through December 31,2015, and requested the data be broken down

across DC's eight

Wards.

4.

None of the data sought in the Request implicates any of FOIA's exemptions in

relation to conhdential enforcement policies or confidential details of any specific criminal case.

5.
$

Ms. Krepp's Request included an application for a waiver of fees under 5 U.S.C.

552(a)(a)(AxiiÐ because the Request "concems prosecution rates and the disclosure will

contribute

to a better understanding of DOJ's efforts to

committed crimes in Washington, D.C." Exhibit

6.

prosecute individuals that have

I at2.

Two months later, on January 5,2016, DOJ responded by denying the Request,

claiming that the data requested by Ms. Krepp did not exist (the "Denial"). A copy of the Denial
is appended hereto as Exhibit 2.

7.

Unconvinced and undeterred by the Denial, and knowing that the DOJ had issued

reports to the public that appeared to rely on the data she was requesting, on January

2I,2016

Ms. Krepp filed an administrative appeal, requesting that the denial of her Request be reversed
(the

"Appeal"). A copy of Ms. Krepp's Appeal is appended hereto as Exhibit

8.

3.

On March 16,2016, the DOJ responded to Ms. Krepp's Appeal by affrrming its

Denial, but notably implied that

it may have

the data in a slightly different format than Ms.

Krepp originally requested (the "Affrrmance"). A copy of the Affrrmance is appended hereto

Exhibit 4.

2

as

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 3 of 14

9.

Ms. Krepp filed her FOIA Request seeking information from the DOJ concerning

criminal prosecutions because she and her neighbors are concerned that dangerous criminals are

being arrested by the local police department, but when

it comes time to prosecute those

criminals, the DOJ is failing to follow through on its duty to enforce DC's laws.

10.

Additionally, Ms. Krepp and her neighbors have seen multiple instances of

violent criminals being arrested and then released back into the community, where they have
promptly committed crimes again.
1

1.

Because the District

of

Columbia

is unable to have its own local criminal

prosecutor (who would be accountable to the voters andior the Mayor), Ms. Krepp had to resort

to filing her Request to obtain the type of data that should be readily available to the public.

12.

Despite a significant public interest in the data, the DOJ has ignored its obligation

to be transparent to the public, and has instead chosen to stonewall Ms. Kt"pp, refusing to
provide even the most basic prosecutorial data.

13.
not exist

-

The DOJ's stated reason for denying Ms. Krepp's Request

- that such data does

is without merit. Besides it being highly unlikely from a logical standpoint that an

agency charged with criminal prosecutions would not maintain data related to what prosecutions

it is maintaining, the DOJ has included prosecutorial

14.

Thus, it appears that the DOJ

data in reports

it

has released to the public.

will only share prosecutorial

released in a manner controlled by the DOJ, and

data when such data is

will not provide the very same data underlying

its reports to the citizens who are directly affected by the DOJ's policies. This practice violates

FOIA's purpose as
Department

oothe

law that keeps citizens in the know about their

of Justice, What is FOIA?, http://www.foia.gov/about.html

2016).

3

government."

( last visited May 5,

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 4 of 14

15.

Ironically, the DOJ's own Bureau of Justice Statistics ("BJS") regularly compiles

dataregarding state prosecutorial data, including felony and misdemeanor dispositions reported

to data repositories.

See Department

Prosecutors (December

20II),

16.

of

Justice, 2007 Nationql Census

of State Court

at p. 8 Table 10, http://www.bjs.gov/contentþub/pdf/psc07st.pdf.

The DOJ has failed to provide data that it has access to and is unable to articulate

any valid reason for not releasing such data. Accordingly, the DOJ has failed to properly
respond to Ms. Krepp's Request and has withheld records in violation of FOIA.

PARTIES
17

.

Plaintiff K. Denise Rucker Krepp is a citizen of the District of Columbia, residing

in the Hill East neighborhood in Ward

6.

Ms. Krepp is an elected Commissioner for Advisory

Neighborhood Commission ("ANC") 6810, where she represents her neighborhood as an
advocate, providing input

to the District of Columbia government on a variety of

matters,

including zoning, licensing, transportation, and crime.

18.

Defendant Department of Justice is a Department of the Executive Branch of the

United States Government and an agency within the meaning of 5 U.S.C. $ 552(Ð(1). The DOJ

is headquartered in Washington, DC. The United States Attorney's Office for the District of
Columbia ("USAO") is a component of the DOJ. The DOJ has possession of the documents
sought by Ms. Krepp.

ß.

rhis courr

has

subjec,ü:1:::::)"'

and personar jurisdiction over the

parties pursuant to 5 U.S.C. $ 552(a)(a)(B). This Court also has subject matter jurisdiction over

this action pursuant to 28 U.S.C. $$ 1331 and 1346.

4

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 5 of 14

VENUE

20.

Venue is proper in this district pursuant to 5 U.S.C. $ 552(a)(a)@) and 28 U.S.C.

$$ 1391(e) and 1402. Ms. Krepp is a resident of this district.

F'ACTUAL ALLEGATIONS
DC's Unique

-

and Unfair

-

Lack of Local Control over Enforcement of its Criminal Laws

21., The District of Columbia is in a unique position with regard to the entities
responsible for the prosecution of its criminal laws.

22.
enforcement

Because the District of Columbia is not a state and is subject to federal oversight,

of DC's laws is the responsibility of

USAO prosecutors.

See

hups://wwwjustice.gov/usao-dc ("[The USAO] serves as both the local and the federal
prosecutor

for the nation's capital. On the local side, these prosecutions

extend from

misdemeanor drug possession cases to murders.").

23.

Attorneys in the USAO are hired by the DOJ, retained by the DOJ, and all

personnel decisions are left to the DOJ.

24.
DC.

The citizens of the District of Columbia have no say in who leads the USAO for

There is no elected official (or even an official appointed by the Mayor of DC) who is

accountable to DC voters and responsible for the enforcement of DC's criminal laws.

25.

In fact, DC's entire criminal justice system (with the exception of its police force)

is run by federal

26.

- not local -

agencies with

little accountability to the residents of DC.

A recent front-page Washington Posl story illustrates the repercussions of such a

system: it tracks the path of a young man who was gommitting increasingly violent crimes, but
instead of being treated like a dangerous repeat violent offender, the DC criminal justice system
kept releasing him back into the community. Amy Brittain, How an accused rapist kept getting

5

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 6 of 14

second chances

from the D.C. justice

system, Tue WISUINGToN

Posr (May 14, 2016),

http://wpo.st/qjc_1.

27.

That man now stands trial for the sexual assault of a neighbor of Ms. Krepp,

which allegedly occurred a week after the man had failed to attend mandatory meetings with his
parole officer, and a month after the man had been released from

jail on his own

recognizance

with pending charges related to, among other things, tampering with a GPS monitoring device
(which he had cut off himself). Id.

28.
has refened

To be sure, a multitude of factors have contributed to what DC's own police chief

to as a "revolving door for violent offenders" (id.),but DC's lack of local control

over its own criminal justice system is particularly offensive because it virtually shuts out of the
process the very people

it is supposed to be protecting, including Ms. Krepp and her neighbors.

The Capitol Hill Neighborhood Witnesses a Spike in Crime

29.

As a concerned citizen (and an elected ANC Commissioner), Ms. Krepp has seen

first-hand how crime

- from petty theft to more violent crime such as rape and assault - has

negatively affected her neighborhood (and the District of Columbia in general).

30.

Since 2015 and into 2016, instances

of crime as tracked by the District of

Columbia Metropolitan Police Department ("DC MPD") have increased.

31.
increased by

32.
i i4ay

For example, from 2014 to 2015, homicides increased by 54% and robberies
5%. Overall violent crime increased by

2Vo.l

Furthermore, 2016 has seen an even larger increase

in violent crime. As of

4,2016, compared to the same period in 2015, homicides are up

50lo, sex abuse crimes are

I

DC crime statistics were obtained from DC MPD's "District Crime Data at a Glance" website, http://mpdc.dc.gov/
node/197622 (last accessed i l4lay 4,2016).
6

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 7 of 14

vp 6yo, assaults with a dangerous weapon are up 4Yo, and robberies are up 13%. Non-auto thefts
(classified separately as "property crime") are also up

5%o.

Despite a Rise in Crime, the DOJ has Appeared Unwilling to Prosecute Criminals

33.

Although Ms. Krepp and her neighbors have seen an uptick in certain crime and

related arrests,

it

has not appeared that the alleged perpetrators of the crimes are being fully

prosecuted after their arrest.

34.
choosing not

Instead, Ms. Krepp and others have witnessed many instances

to bring criminal

cases against individuals arrested

of the USAO

for crimes, despite ample

evidence and witnesses willing to testiff.

35.

This means that in some instances, perpetrators of crime in Ms. Krepp's

neighborhood (and elsewhere in the District) are arrested, spend no more than a few days in jail,
and are then released back onto the street because prosecutors have not brought criminal charges
against them.

36. In other instances, USAO attorneys initially bring criminal charges against
defendants, but the prosecutors subsequently drop those charges for reasons unknown to the

public.

37.

Finally, in other instances, USAO attorneys seek plea bargains with defendants

that are extremely favorable to the defendants, allowing them to be released almost immediately
back into the neighborhoods where they committed their crimes.

38.

Although there may be legitimate bases for these decisions, the public does not

have access to information regarding how often these decisions occur, nor is the DOJ providing

information about how often its USAO attorneys are moving forward with criminal prosecutions.

7

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 8 of 14

Ms. Krepp Seeks Information from the DOJ

39.

Concerned that the USAO appeared

to be neglecting its duties as criminal

prosecutor on behalf of the citizens of the District of Columbia, Ms. Kt"pp began asking the DOJ

for information relating to prosecutions in her Ward.

40.

Ms. Krepp attended multiple community meetings related to crime, where

asked USAO offrcials

she

for statistics relating to how the USAO for DC was prosecuting

individuals who had been arrested by DC MPD for crimes in her neighborhood.

41.

Despite the current presidential administration's claim

to

being the

oomost

transparent administration in history,"2 the DOJ continually rebuffed Ms. Krepp's reasonable
requests for prosecutorial data.

Ms. Krepp Files Her Request

42.

Frustrated with the DOJ's refusal to provide any data relating to actions that

directly affected her and her neighbors, Ms. Krepp decided to formally request the data through a

FOIA Request.

43.

Thus, on November 5, 2015, Ms. Krepp filed a FOIA Request with the DOJ,

seeking statistics relating to the DOJ's review and prosecution

of criminal homicide, rape,

robbery, aggravated assault, burglary, larceny, motor vehicle theft, and arson. S¿¿ Exhibit

44.

l.

The DOJ acknowledged receipt of the Request on November 23,2015. Notably,

the DOJ's November 23 response did not acknowledge Ms. Krepp's request for a fee waiver, and
asked Ms. Krepp what amount she would be willing to pay for the information she requested.
See November

23,2015 Leiter, appended

as

Exhibit

2

5.

Jonathan Easley, Obama says his is 'most trqnsparent administration' eyer. THE HILL (Feb. 14, 2013, ll:14 PM),
http://thehill.com/blogs/blog-briefing-room/news/283335-obama-this-is-the-most-transparent-administration-inhistory.

I

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 9 of 14

45.

The DOJ's request for funds to cover the search and reproduction of the data was

without merit, because Ms. Krepp's request met the requirements for a fee waiver, which Ms.
Krepp had requested. See Exhibit

I at2.

Ms. Krepp Holds a Bake Sale to Raise Money for Her Request

46.

Ms. Krepp responded to the DOJ's November 23 letÍer by stating she would be

willing to pay up to $1,000 for

47.

Faced

fees related to her Request.

with a request from the DOJ for funds to cover the Request, Ms. Krepp

set

out to raise money via a method that any parent of school-aged children knows is extremely
effective: she hosted a bake sale.

48.

The "#FOIACakes" bake sale (as

it

was known on social media) was extremely

successful, thanks to a combination of delicious cookies, brownies, and other baked goods and
outrage by Ms. Krepp's neighbors that the DOJ was demanding payment for data that should be

readily available to the public.3

49. All told, the #FOIACakes bake sale raised $1,867 in support of Ms. Krepp's
Request.

50.

On December 14,2015, Ms. Krepp followed up on her Request with a letter to

DOJ, informing the agency that she had raised $1,867 and was willing to pay fees related to the
Request up to that amount.

A copy of that letter is appended hereto

as

Exhibit

6.

DOJ Denies the Request; Ms. Krepp Appeals

51.

On January 5,2016, two months after Ms. Krepp filed it, the DOJ denied her

Request, stating that

it had no 'oresponsive records regarding" the Request. See Exhibit

2.

3

See, e.g., Peter Hermann and Perry Stein, D.C. woman seeking conviction-rate data isn't deterred by cost of
request, THE WASHTNGToN Posr (Dec. 12,2015),hIþ:llwpo.slVisYl; Andrew Giambrone, FOIA Bake Sale Brings
in More Than 81,000 to Help Get Federql Dqta on D.C. Convicllors, WASHINGToN CITvPArER (Dec. 14,2015,

12:46 PM), http://www.washingtoncitypaper.com/blogs/citydesk/2015112114/foia-bake-sale-brings-in-more-thanI

000-to-help-get-federal-data-on-d-c-convictions/.
9

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 10 of 14

52.
filed

a

Undeterred, and suspecting that the DOJ did have the data she sought, Ms. Krepp

timely appeal of the Denial on January 21,2016.

53.

,See

Exhibit

3.

The Appeal pointed out that it was unlikely that the agency would not track this

information, that the DOJ had released reports containing information similar to what Ms. Krepp
was requesting, and that in recent press statements, the DOJ had itself refened to monthly reports

it released containing this data.

See

Exhibit

3.

54.

The DOJ acknowledged receipt of Ms. Krepp's appeal on February 2,2016.4

55.

On March 16,20l6,the DOJ affirmed its Denial.

56.

Notably, the Affirmance implied that the DOJ may maintain the data requested,

,See

Exhibit 4.

just not in the exact format requested by Ms. Krepp. Ms. Krepp's Request asked for the data
organized by Ward; the Affirmance indicated that the DOJ may have this information organized

by police district.

,S¿e

Exhibit 4 ("Please be advised that police service areas, also known as the

districts [sic], are used for reporting purposes. The USAO does not track this information by
ward or in the specific manner which you are requesting.").

57.

The DOJ's Affirmance went on to suggest that Ms. Krepp 'omake a new request to

fthe DOJ] for prosecutions and convictions by crime or by

district." Id.

The DOJ Has Access to the Requested Prosecutorial Data

58.

Despite its official claims to the contrary, the DOJ does appear to maintain data

relating to criminal prosecutions in the District of Columbia.

59.

As an initial matter, logic would dictate that an office charged with enforcing

criminal laws through prosecutions would maintain information relating to the disposition of
cases

it handles (e.g., non-prosecution, plea bargain, prosecution and conviction, prosecution and

a

The DOJ issued a second acknowledgement on February 4,2016, apparently mistakenly assigning the appeal two
different case numbers; this issue was resolved when the DOJ later issued its decision on the appeal.
10

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 11 of 14

not guilty verdict, etc.); such data would be necessary for an office to set its budgetary and
staffing needs.

60.

On information and belief, the DOJ relies on computer systems to monitor and

track criminal cases that are handled by the USAO. One such system is called the "Replicated
Criminal Information System," or "RCIS."

61.

On information and belief, the DOJ is able to query one or more of these systems

to obtain the data that Ms. Krepp has requested with a reasonable amount of effort.

62.

Further, the DOJ has used the very same data Ms. Krepp has requested in reports

released to the public.

63.

For example, Annual Statistical Reports issued by the Offices of the United States

Attorneys dating back

to at least 20I0s each contain a section pertaining to crimes

and

prosecutions in District of Columbia Superior Court.

64.

These reports include overall data such as the number of o'Arrests Reviewed" for

felonies and misdemeanors, o'Cases Disposed of by Jury Trials,"

ooCases

Disposed of by Court

Trials," (each tracking guilty verdicts, not guilty verdicts, and mistrials), and "Dispositions"
(tracking guilty pleas, dismissals, and convictions for felonies and misdemeanors). See, e.g.,

United States Attorneys' Annual Statistical Report Fiscal Year 2015
https:/iwwwjustice.gov/usao/file/831856/download;

at

65,

United States Attorneys' Annual Statisticql

Report Fiscal Year 2013, at 14, https://wwwjustice.gov/sites/defaullfiles/usaollegacyl20l4l09l
22l13statrpt.pdf.

65.

Although these reports are useful for providing some of the information Ms.

Kt"pp seeks, they only tell part of the story; Ms. Krepp's Request seeks all of the relevant data
related to criminal prosecutions, not just select datathat the DOJ has chosen to publish.
5

The Annual Statistical Reports are available at https://wwwjustice.gov/usao/resources/annual-statistical-reports.

ll

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 12 of 14

66.

Finally, the DOJ, in its own correspondence to Ms. Krepp affirming its Denial,

has admitted that

it

does maintain at least some of the information sought, but perhaps not in the

exact format and organization requested by Ms. Krepp (by Ward, not police district).

67.

Such a technicality is not a valid basis for denial of a FOIA request.

68.

The intent and "spirit" of FOIA, as well as the Obama Administration (which

oversees the DOJ), is

for transparency in government, and agencies are instructed to err on the

side of complying with a FOIA request even

if the format

requested is not precisely the format

in

which the data is available.

69.

Further, the U.S. Attorney for the District

of Columbia himself, Channing D.

Phillips, has repeatedly told the community that crime is a priority for the USAO, and that he
wonts to provide the information Ms. Krepp has sought.

70.

Ms. Krepp should not be - and is not

-

required under the law to file a completely

new FOIA request simply because the DOJ maintains criminal prosecution data organized by
police district rather than V/ard.

7I.

Instead, the DOJ is required to provide the data sought by the Request in the

manner in which it is stored; a full denial of the FOIA Request is wholly inappropriate.

72.

The individuals responsible for the Denial and subsequent Affrrmance, well-

trained and experienced DOJ FOIA Officers, knew or should have known about the agency's
transparency and FOIA's requirement that agencies err on the side of disclosure.

73.

That the DOJ's FOIA Officers would still refuse to provide the requested data

indicates an effort by the DOJ to avoid providing datathat should be shared with the public and

for which it has no basis to withhold.

t2

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Plaintiff Has Exhausted Her Administrative Remedies

74.

As discussed more fully above, after receiving the Denial, Ms. Krepp timely filed

an administrative appeal on January 2I,2016, which resulted in an affirmance by the DOJ on

March 16,2016.

75.

Thus, Ms. Krepp has exhausted all applicable administrative remedies.

CLAIM FOR RELIEF
Violation of Freedom of Information Act

76.

Plaintiff incorporates the above paragraphs as if fully set forth herein.

77.

Defendant Department of Justice has failed to comply with its obligations under

FOIA to provide the information requested by Plaintiff Ms. Krepp.

78.

Plaintiff has a right of access to the requested information under 5 U.S.C,

$ 552(a)(3), and there is no legal basis for Defendant's denial of such access.

79.

Plaintiff has exhausted the applicable administrative remedies with respect to the

DOJ's failure to comply with Plaintiff

80.

s requests.

Plaintiff is entitled to injunctive relief with respect to the release and disclosure of

the requested documents because Defendant Department of Justice continues to improperly
withhold agency records in violation of FOIA.

81.

Plaintiff will suffer ineparable injury from, and has no adequate legal remedy for,

the DOJ's illegal withholding of government documents pertaining to the subject of Plaintiffls

FOIA Request.

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays that this Court:

A.

Order Defendant DOJ to immediately provide or make available the requested

documents in their entirety;
13

 Case 1:16-cv-00926 Document 1 Filed 05/16/16 Page 14 of 14

B.

Order Defendant DOJ to grant Plaintiff s request for a fee waiver as provided for

in 5 U.S.C. $ ss2(a)(a)(AXiii);

C.

Declare that the DOJ's failure to disclose the records requested by Plaintiff is

unlawful;

D.

Enjoin the DOJ from withholding records responsive to the Request;

E.

Award Plaintiff her litigation costs and reasonable attorneys' fees incurred in this

action as provided in 5 U.S.C. $ 552(a)(a)@); and

F.

Grant such other relief as the Court may deem just and proper.

Dated: March 16,2016

Respectfully submitted,

BUcTI.BySANDLER LLP
John B. Williams III (DC Bar # 983677)

Jeffrey Naimon (DDC admission pending)
Ignacio J. Hiraldo (DDC admission pending)
Angela Parr (DDC admission pending)
1250 24th Street NW, Suite 700
Washington, DC 20037
jwilliams@buckleysandler.com
j naimon@buckleysandler. com
ihiraldo@buckleysandler. com
ap an @buckl eysandl er. c o m
Telephone: 202-349-8000
Facsimile: 202-349-8080

Email:

Counsel

l4

for Plaintiff K. Denise Rucker Krepp