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Vining v. Council of District of Columbia

Court of Appeals of Columbia District

June 9, 2016

KIRBY VINING, Appellant,
v.
COUNCIL OF THE DISTRICT OF COLUMBIA, Appellee.

          Argued November 3, 2015

         Appeal from the Superior Court of the District of Columbia (CAB-568-14) (Hon. Robert Okun, Trial Judge)

          Don Padou for appellant.

          Manasi Venkatesh, Assistant General Counsel, with whom Ellen A. Efros, General Counsel, and John Hoellen, Deputy General Counsel, were on the brief, for appellee.

          Robert 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.

          Before Easterly and McLeese, Associate Judges, and Farrell, Senior Judge.

         JUDGMENT

         This 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

         ORDERED and ADJUDGED that the trial court's ruling is reversed, and the case is remanded for further proceedings consistent with this opinion.

          OPINION

          CATHARINE EASTERLY ASSOCIATE JUDGE.

         The 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 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.

         I. Facts and Procedural History

         Kirby 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.[1] 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, [2] 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").[3] Beyond citing the statute, the Council did not elaborate on the nature of the exemptions asserted.

         Mr. Vining filed suit in Superior Court, challenging the Council's decision to withhold these documents.[4] 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;[5] the Council additionally invoked the deliberative-process privilege under Exemption 4.

         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 judgment to the Council.[6] 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.

         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 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))[7] 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.

         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.[8] 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 Exemption 6.

         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 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.[9] 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.

         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 [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.[10] Rather, the court's preceding analysis focused exclusively on whether the Legislative Privilege Act met the requirements for a nondisclosure statute under ...


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