Lead Opinion
Thе District of Columbia’s Freedom of Information Act generally requires public bodies, including the Council of the District of Columbia, to provide “full and complete information” in response to requests for documents from members of the public. D.C.Code §§ 2-531, -532(a) (2015 Supp.). But D.C. FOIA also includes a number of exemptions, which allow public bodies to withhold certain information from disclosure. See D.C.Code § 2-534 (2015 Supp.) (listing exemptions). One of those exemptions allows public bodies to withhold information that is specifically exempted from disclosure by another statute. See D.C.Code § 2-534(a)(6).
In this case, we decide whether the Council of the District of Columbia can withhold documents from Kirby Vining undеr this exemption by invoking the Legislative Privilege Act, D.C.Code § 1-301.42 (2014 Repl.) (“For any speech or debate made in the course of their legislative duties, the members of the Council shall not be questioned in any other place.”). For the reasons set forth below, we conclude it cannot. Accordingly, we reverse the entry of summary judgment for the Council and remand for further proceedings consistent with this opinion.
I. Facts and Procedural History
Kirby Vining submitted a request under D.C. FOIÁ to the Council of the District of Columbia asking for documents related to a proposed development of McMillan Park.
■ Mr. Vining filed suit in Superior Court, challenging the Council’s decision to withhold these documents.
The Superior Court addressed the Council’s reliance on the Legislative Privilege Act and the deliberative-process privilege, upheld the Council’s refusal to provide these documents to Mr, Vining, and granted summary judgmеnt to the Council.
II. Analysis
A. Mootness
Preliminarily, we address the Council’s argument that this court need not address whether the Legislative Privilege Act allows the Council to withhold information under Exemption 6 of D.C. FOIA because this case is moot. The mootness doctrine generally prevents courts from deciding cases “when the is
To begin with, the Council’s argument is at odds with its Vaughn index, which the trial court relied upon to determine whether the Council had properly withheld documents that were responsive to Mr. Vining’s FOIA request.
To be sure, the Council subsequently asserted in its summary judgment motion that the Legislative Privilege Act was incorporated by both FOIA exemptions. But beyond citing to D.C.Code § 2-534(e), which the Council had not cited in its Vaughn index, the Council nеver explained how this could be. And upon examination, the Council’s citation to § 2-534(e) makes little sense. Section 2-534(e) incorporates under Exemption 4 a list of already-existing common-law privileges as well as “other privileges that may be found by the court.” See supra note 5. It has no clear bearing on information protected by statute, which is separately addressed under Exemption 6.
Unsurprisingly then, the Superior Court’s order does not clearly reflect that it examined this argument. To the contrary, instead of focusing on the particular FOIA exemptions serving as the foundations for the assertion of privilege, the court directed its attention to the nature of the privilege asserted. It first acknowledged the Council’s argument that “many of the documents requested are protected from Plaintiffs requests for disclosure” under the Legislative Privilege Act and upheld the application of that statute. The court then acknowledged the Council’s argument that a remaining “small number of documents” were protected by the deliberative-process privilege and upheld the assertion of that privilege.
To support its mootness argument on appeal, the Council plucks one sentence from the Superior Court’s order, where at the end of its discussion of the Legislative Privilege Act, the court concluded, “Having reviewed the Vaughn Index and the documents themselves, in camera, the Court finds that the Council properly applied the [Legislative Privilege Act] via [Exemptions 4 and 6, to the documents it withheld.” But this was the Superior Court’s sole reference to Exemption 4 in its discussion of the Legislative Privilege Act, and the court did not explain how the Council could assert this statutory privilege “via” both Exemption 4 and Exemption 6.
Accordingly, we conclude that Mr. Vin-ing’s challenge to the trial court’s ruling is not moot.
B. The Council’s Ability to Withhold Information under Exemption 6 of D.C. FOIA
1. Statutory Background
Before we begin our analysis to determine whether the Council properly withheld documents under Exemption 6 of D.C. FOIA, we рut that analysis in context and review the pertinent statutes: the Legislative Privilege Act of 1975
Soon after the United States Congress created the Council of the District of Columbia, the Council enacted the Legislative Privilege Act of 1975. The Legislative Privilege Act was modeled on the Speech or Debate Clause of the United States Constitution, which gives members of the U.S. Congress and their aides absolute immunity to suits for damages and
Currently codified at D.C.Code § 1-301.42, the Legislative Privilege Act provides that “[f]or any speech or debate made in the course of their legislative duties, the members of the Council shall not be questioned in any other place.” “Legislative duties” are broadly defined as “the responsibilities of each member of the Council in the exercise of such member’s functions as a legislative representative,” including “[e]verything said, written or. done during legislative sessions, meetings, or investigations of the Council or any committee of the Council, and everything said, written, or done in the process of drafting and publishing legislation and legislative reports.” D.C.Code § l-301.41(b) (2014 Repl,).
The year after the Council passed the Legislative Privilege Act, it passed the Freedom of Information Act of 1976, a sunshine law designed to promote open government. D.C. FOIA established that “the public policy of the District of Columbia is that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.” Freedom of Information Act of 1976, D.C. Law 1-96, § 201 (1977) (current version at D.C.Code § 2-531).
As originally enacted, D.C. FOIA applied only to the executive branch.
2. D.C. FOIA’s Exemption 6 and the Legislative Privilege Act
Mr. Vining argues that the Council cannot withhold documents under Exemption 6 of D.C. FOIA by invoking the Legislative Privilege Act. The force of the Legislative Privilege Act, its interaction with FOIA, and ultimately the trial court’s determination that the Council was entitled to summary judgment are all questions of law that we review.de novo. See Fraternal Order of Police, Metro. Police, Labor Comm. v. District of Columbia,
The Council, as a public body subject to D.C., FOIA, is required to provide “full and complete information” in response to requests for disclosure of public records unless it pan identify a. statutory exemption that authorizes it to withhold responsive information.
As noted above, a qualifying statute under Exemption 6 must “specifically exempt ]” information from disclosure. D.C.Code § 2-534(a)(6). This court,- like federal courts interpreting the analogous-
Our conclusion that the Council cannot seek the protection of the Legislative Privilege Act under Exemption 6 is reinfоrced by our examination of D.C. FOIA as a whole. First, we note that the Council is entitled to claim other exemptions under D.C.Code § 2-534(a), including the exemption for “[[Investigatory records compiled for law-enforcement purposes,” D.C.Code § 2-534(a)(3) (“Exemption 3”) and the exemption for documents protected by the deliberative process and other common law privileges under D.C.Code § 2-534(a)(4). Indeed, the Council amended FOIA in 2004 precisely to tailor these exemptions to its needs — amending Exemption 3 so that it would encompass “the records of Council investigations,” and amending Exemption 4 so that it would include “memorandums or letters generated or received by the staff or members of the Council.”
Second, we consider the fact that, as amended in 2000, D.C. FOIA requires the D.C. Council to fulfill its open-government objectives. To allow the Council to invoke the Legislative Privilege Act under Exemption 6 and withhold all information
Likewise, we are unmoved by the Council’s argument that it disclosed nearly one thousand documents to Mr. Vining, notwithstanding the protection the Council believed it could claim under the Legislative Privilege Act via Exemption 6. This argument suggests that the Council wants to retain unfettered administrative discretion to decide when to make disclosures under FOIA. But broad administrative discretion is exactly what the Council sought to remove from public bodies wlhen it first passed D.C. FOIA forty years ago,
We adhere to the text and spirit of D.C. FOIA and conclude that the Council may not duck its obligation to make full disclosures under the statute by invoking the Legislative Privilege Act under Exemption 6. In so holding, we reject the Council’s counterargument that the Legislative Privilege Act is some kind of super-statute that either trumps FOIA or must be broadly construed thereunder, consistent-with federal cases interprеting the Speech or Debate Clause of the Constitution, as a nondisclosure provision.
As explained above, we examine the Council’s decision to withhold documents through the lens of D.C. FOIA, and specifically through the lens of D.C. FOIA’s Exemption 6, which we must interpret narrowly and which requires tljat claimed withholding statutes explicitly exempt information from public disclosure. Cf Reporters Comm, for Freedom of Press,
The Legislative Privilege Act codified the Council’s desire to promote the separation of powers and to protect legislators from disruption and intimidation. See supra Part II.B.1. D.C. FOIA does not implicate either of these concerns. The Council chose to apply FOIA to itself, and the burden of FOIA compliance falls primarily on the Secretary to the Council
The Council argues,’ however, that because federal courts have used the term “non-disclosure privilege” in discussions of the Speech or Debate Clause, see, e.g., Williams v. Johnson,
The Council warns, however, that a failure to recognize that it is protected by the Legislative Privilege Act under Exemption 6 of D.C. FOIA will “produce the absurd result of a litigant being able to obtain records through [D.C.] FOIA that the litigant could not obtain through [civil] discovery.” But it is not obvious that our ruling will lead to such a result or, if it does, that such a result would be absurd. As Councilmembers cannot be sued for conduct undertaken in their legislative capacities, Dorsey,
III. Conclusion
The force compelling the Council to disclose its records is none other than legislation drafted by the ■ Council itself. If the Council wants to minimize its obligations under D.C. FOIA, it can do so, either by amending D.C. FOIA or by amending the Legislative Privilege Act to make it clear that it specifically exempts from disclosure particular Council documents. In the meantime, this court must enforce the law currently on the books. That law does no,t justify the Council’s decision to withhold documents under D.C.Code § 2-534(a)(6) in this case. We therefore reverse the trial court’s ruling and remand for further proceedings consistent with this opinion.
So ordered.
Notes
. In particular, Mr. Vining requested (1) all emails to - or from Councilmember Kenyan McDuffie “with the terms ‘Historic Preservation Reviеw Board,’ ‘HPRB,’ ‘Vision McMillan Partners,’ ‘VMP,’ or ‘McMillan’ in the subject or body of the email"; and (2) all
. A Vaughn index is a privilege log that lists each item withheld under FOIA and explains the -statutory basis for refusing to produce that item, See Vaughn v. Rosen,
. As to 65 documents, the Counсil invoked both Exemptions 4 and 6. As to 24 documents, the Council invoked Exemption 4. For the remaining 60 documents, it invoked only Exemption 6.
. See D.C.Code § 2-537(a-l) (2015 Supp.) ("Any person denied the right to inspect a public record in the possession of the Council may institute ‘ proceedings in the Superior Court for the District of Columbia for injunc-tive or declaratory relief, or for an order to enjoin the public body from withholding the record and to compel the production of the requested record.”).
. The Council cited D.C.Code § 2-534(e) (incorporating under Exemption 4. the deliberative-process privilege, among other common law privileges), but otherwisе did not elaborate on this argument.
. At the same time, the court denied Mr. Vining’s motion for summary judgment.
. Unlike federal courts created under Article III of the U.S. Constitution, we are not bound by Article Ill’s case-or-controversy requirement. See Fraternal Order of Police,
. The public body asserting a FOIA exemption bears the burden of supplying the Superior Court “with sufficient information” to allow the court to determine whether the public body correctly applied the exemption. Fraternal Order of Police, Metro. Police Labor Comm. v. District of Columbia,
.Exemption 4, in discussing the inter- and intra-agency documents it protects, does include the language “which would not be available by law”; but if that referred to statutorily protected information, it would render Exemption 6 superfluous. See, e.g., Clement v. District of Columbia Dep’t of Emp't Servs.,
. As noted above, we have serious doubts that the Council could invoke the Legislative Privilege Act under Exemption 4, but we need not address the matter because this argument has not been adequately presented either to the trial court or to this court.
. In the proceedings in Superior Court and in the briefs to this court, the parties have referred to the Legislative Privilege Act as the “Speech or Debate Statute,"- or even the "Speech or Debate Clause.” For clarity, we call the statute by its given name. See Legislative Privilege Act of 1975, D.C. Law 1-65 (1976) (“[Tjhis act may be cited as the ‘Legislative Privilege [A]ct of 1975.’ ”). The Speech or Debate Clause is a component of Article I of the Constitution. U.S. Const, art. I, § 6, cl. 1. It does not apply to Councilmembers and could not, in any event, justify the Council’s decision to withhold documents under Exemption 6 of D.C. FOIA, which only applies to information exempted from disclosure "by statute.” D.C.Code § 2 — 534(a)(6).
. In its report to' the Council, the Committee on the Judiciary and Criminal Law explained that there was a need for such legislation because, due to "a drafting oversight,” the District had not been included under the federal Freedom of Information Act of 1966. D.C. Council, Report on Bill 1-119 at 3 (Sept. 1, 1976), The Report further detailed how efforts by the executive branch to promote open government praсtices had failed. Id. at 3-4 (noting the need "for a policy which has the force of law”).
. Similarly, federal FOIA as originally enacted did not apply to Congress, and it still does not. See infra p. 448.
. Outside of these statutory exemptions, courts have "no general equitable power to prevent disclosure under [D.C.] FOIA.” Barry v. Washington Post Co.,
.Although the Legislative Privilege Act refers to individual "members of the Council,” D.C.Code § 1-301.42, we assume for the sake of argument that the Council, as a public body subject to a FOIA request; may invoke the Legislative Privilege Act.
. See Reporters Comm, for Freedom of Press v. U.S. Dep’t of Justice,
. In Barry, we concluded that a statute authorizing creation of the mayor's discretionary and ceremonial funds did not fall within Exemption 6 because its text "d[id] not ‘specifically exempt' from public disclosure” documents related to these funds.
. See Freedom of Information Legislative Records Clarification Amendment Act of 2004, D.C. Law 15-256, § 2 (2005).
. It is curious that, at least to our knowledge, this is the first instance in the sixteen years the Council has been subject to FOIA that the Council has asked this Court to recognize the power of the Legislative Privilege Act as a nondisclosure statute under D.C.Code § 2-534(a)(6).
.When asked at oral argument to identify categories of documents that the Council would still be obligated to disclose under D.C. FOIA, if the court agreed that it could withhold documents under Exemption 6 by invoking the Legislative Privilege Act, the Council gave one example: emails regarding constituent services.
. See Report on Bill 1-119 at 3-5 (describing a complete failure of public bodies to comply with the District’s policy of "open citizen access to information” without an enforceable statutory right to such information).
. The Secretary of the Council is the Council’s FOIA Officer. Rules of Organization and Procedure for the Council оf the District of Columbia, Council Period 21, Rule 811(a), 62
. The General Counsel makes "the final determination on whether particular records are privileged or otherwise subject to disclosure.” Council Rule 811(f), 62 D.C.Reg. at 581.'
. See generally Counсil Rule 811, 62 D.C.Reg. at 580-81 (describing the Council’s procedures for complying with FOIA).
. Dorsey v. District of Columbia is the sole case in which we have examined and upheld the application of Legislative Privilege Act.
. We have suggested in dicta that we would hold the same with respect to Cоuncilmembers. See Franco v. Nat’l Capital Revitalization Corp., 930 A.2d 160, 173 n. 12 (D.C.2007) (observing that the District’s statute, like the federal Speech or Debate Clause, protects legislators from being "deposed or made to answer interrogatories in an attempt to disclose their individual motivations”). -
.Accordingly, the federal, courts’-interpretation of the Speech or Debate Clause protections do not exceed the protections of the Legislative Privilege Act, as recognized by our decisions in Dorsey and Franco. See Gross v. Winter,
. Cf. United States v. Weber Aircraft Corp.,
Concurrence Opinion
concurring in part and concurring in the judgment:
I agree with the court that D.C. FOIA and the Legislative Privilege Act (LPA), read together, do “not justify the Council’s decision to withhold documents ... in this case.” Ante at 449 (emphasis added). But I am not ready to say, nor need we decide here, that FOIA-requested disclosure of communications to or from a Councilmem-ber in the course of his legislative duties may never be tantamount to, the functional equivalent of, “questioning]” the member
In this case, however, the Council has not met that near-approximation test. Although it turned over numerous documents to appellant, it declined to disclose a large body of them without any individualized showing of how disclosing the information would be equivalent to “question[ing],” and thereby threaten a legislator’s independence through “disruption and intimidation.” Ante at 447. Thus, while I concur in much of the court’s analysis and the result, I would not deny the Council the ability to make that showing in the future.