But Markiewicz’s attorney disclosed following the ruling by Judge John Campbell that police officials belatedly complied with Markiewicz’s FOIA request in late February and provided him with the emails and phone records he requested.
The attorney, Matthew LeFande, said Markiewicz decided to continue the lawsuit after police turned over the requested documents because a ruling by the court that police initially failed to comply with the request until a lawsuit was filed would require the D.C. government to pay his legal expenses related to the lawsuit.
Campbell’s ruling was the latest in a series of developments surrounding claims by Markiewicz that he has been targeted for anti-gay discrimination and retaliation by police officials after filing an internal discrimination complaint against a captain who served as his supervisor.
David Mariner, executive director of the D.C. Center for the LGBT Community, provided an account of Markiewicz’s internal police complaint in a message on a GoFundMe site he created in early March. In that message, Mariner said Markiewicz was in the midst of a “costly legal battle with the Police Department” over retaliation he encountered after he filed a complaint charging he was subjected to “repeated homophobic remarks.”
Sources familiar with the complaint have said it accuses a captain who headed the department’s then-Gay and Lesbian Liaison Unit, of which Markiewicz was a member, of repeatedly referring to Markiewicz as “Justine” in face-to-face conversations and in email messages. Some of the emails reportedly were sent to D.C. Police Chief Cathy Lanier.
Lanier is among the police officials whose emails were sought in Markiewicz’s FOIA request.
Meanwhile, sources familiar with Markiewicz’s role on the GLLU, before he requested to be transferred out of the unit, say he has also filed a sexual orientation discrimination complaint against the department with the D.C. Office of Human Rights. The police emails and phone records associated with text messages he has requested reportedly are needed to substantiate his discrimination complaint.
The DCOHR has a policy of not publicly disclosing whether a complaint has been filed until the office completes an investigation of the complaint and makes a determination that probable cause exists the alleged discrimination occurred. If probable cause is found, the office has the option of arranging for a public evidentiary hearing similar to a trial before the city’s Commission on Human Rights.
In announcing his decision to dismiss the FOIA lawsuit at an April 8 status hearing, Campbell said he was required by law to grant a motion by D.C. Attorney General Karl Racine, who represents the police department, to dismiss the case on grounds that LeFande missed the deadline for officially serving legal papers notifying the city about the suit.
LeFande disputes the claim that his office missed the deadline. He argued at the hearing that he arranged for the legal papers to be served to the mayor’s office in accordance with rules he says were established by a previous decision by the D.C. Court of Appeals.
Campbell said the D.C. attorney general’s office acted appropriately by declaring that the mayor’s office had established that it no longer accepts service for lawsuits against the city and that such service must be delivered to the office, which represents the mayor and all city agencies in court.
Racine argues in his motion to dismiss the case that by the time LeFande arranged for the legal papers to be served to the D.C. attorney general’s office on Jan. 4 they were seven days past the deadline of Dec. 28.
LeFande told the Blade he plans to appeal Campbell’s ruling to the D.C. Court of Appeals. But he said the lawsuit served its purpose of prodding the police department into complying with the FOIA request, which Markiewicz first filed on July 8, 2015. Under D.C. law, city agencies are required to respond to an eligible FOIA request within 25 business days.
A spokesperson for the D.C. attorney general’s office said the office could not comment on pending cases. In his motion to dismiss the lawsuit, Racine doesn’t give a reason why the police didn’t respond to Markiewicz’s FOIA request until after the lawsuit was filed.