November 3, 2015
from the Superior Court of the District of Columbia
(CAB-568-14) (Hon. Robert Okun, Trial Judge)
Padou for appellant.
Venkatesh, Assistant General Counsel, with whom Ellen A.
Efros, General Counsel, and John Hoellen, Deputy General
Counsel, were on the brief, for appellee.
S. Becker, with whom Frederick V. Mulhauser, James A.
McLaughlin, Chad R. Bowman, and Matthew L. Schafer were on
the brief, for D.C. Open Government Coalition, amicus curiae,
in support of appellant.
Easterly and McLeese, Associate Judges, and Farrell, Senior
case came to be heard on the transcript of record and the
briefs filed, and was argued by counsel. On consideration
whereof, and as set forth in the opinion filed this date, it
is now hereby
and ADJUDGED that the trial court's ruling is reversed,
and the case is remanded for further proceedings consistent
with this opinion.
CATHARINE EASTERLY ASSOCIATE JUDGE.
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).
case, we decide whether the Council of the District of
Columbia can withhold documents from Kirby Vining under 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.
Facts and Procedural History
Vining submitted a request under D.C. FOIA to the Council of
the District of Columbia asking for documents related to a
proposed development of McMillan Park. The Council
acknowledged it was subject to D.C. FOIA and provided a
number of responsive documents. But with respect to 149
documents listed in its Vaughn index,  the Council
asserted that at least one of two D.C. FOIA exemptions
applied: D.C. Code § 2-534 (a)(4) ("Exemption
4") (shielding from disclosure "[i]nter-agency or
intra-agency memorandums or letters, . . . which would not be
available by law to a party other than a public body in
litigation with the public body") and D.C. Code §
2-534 (a)(6) ("Exemption 6") (shielding
"[i]nformation specifically exempted from disclosure by
statute"). Beyond citing the statute, the Council did
not elaborate on the nature of the exemptions asserted.
Vining filed suit in Superior Court, challenging the
Council's decision to withhold these
documents. The Council moved for summary judgment,
arguing that "[t]he majority of documents withheld by
the Council . . . are covered by [the Legislative Privilege
Act] and therefore are not required to be disclosed under the
D.C. FOIA" and that "[t]he remaining documents are
covered by the deliberative-process privilege." The
Council asserted without explanation that the Legislative
Privilege Act was incorporated by both Exemptions 6 and 4 of
D.C. FOIA; the Council additionally invoked the
deliberative-process privilege under Exemption 4.
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 judgment to the
Council. This appeal followed. Mr. Vining
challenges the court's determination that the Council
could withhold documents under Exemption 6 by invoking the
Legislative Privilege Act.
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
issues presented are no longer 'live' or when the
parties lack a legally cognizable interest in the
outcome." Fraternal Order of Police, Metro. Labor
Comm. v. District of Columbia, 113 A.3d 195, 198 (D.C.
2015) (brackets omitted) (quoting Settlemire
v. District of Columbia Office of Emp. Appeals,
898 A.2d 902, 904-05 (D.C. 2006)) The Council argues that Mr.
Vining has no legally cognizable interest in ascertaining
whether the Council properly withheld documents under
Exemption 6 because the Superior Court determined that the
Legislative Privilege Act allowed the Council to withhold
documents under two FOIA exemptions, both Exemption 6 and
Exemption 4, and Mr. Vining has only challenged the
court's ruling on the former. We disagree with the
Council's characterization of the Superior Court's
ruling and conclude that this case is not moot.
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. In this index, the Council variously
listed Exemptions 6 and 4 as justification for withholding
documents-sometimes asserting the exemptions in tandem, but
sometimes citing one or the other on its own. See
supra note 3. If the Council, as it now represents,
meant to invoke both Exemptions 6 and 4 to withhold documents
under the Legislative Privilege Act, the Council would never
have listed Exemption 6 alone. That it did so strongly
suggests that, at least as to sixty documents, the Council
was invoking the Legislative Privilege Act only under
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 never 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. Thus, as we read the record, the Council
never developed an argument that would have supported a
ruling by the Superior Court that the Council had properly
withheld documents under the Legislative Privilege Act as
incorporated by Exemption 4 as well as Exemption 6.
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.
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 [E]xemptions 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. Rather, the court's
preceding analysis focused exclusively on whether the
Legislative Privilege Act met the requirements for a
nondisclosure statute under ...