Argued: September 20, 2016
from the Superior Court of the District of Columbia
(CAB-3386-14) (Hon. Jeanette J. Clark, Trial Judge)
Padou for appellant.
J. Schifferle, Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd
S. Kim, Solicitor General at the time the brief was filed,
and Loren L. AliKhan, Deputy Solicitor General at the time
the brief was filed, were on the brief, for appellee.
Glickman, Easterly, and McLeese, Associate Judges.
GLICKMAN, ASSOCIATE JUDGE
appeal is from the dismissal of a lawsuit seeking public
records from an Advisory Neighborhood Commission
("ANC") under the District of Columbia Freedom of
Information Act ("FOIA"). Appellant, James Kane,
contends that the Superior Court erred in upholding ANC
2F's assertion of the deliberative process privilege to
redact or withhold certain documents responsive to his FOIA
request. Mr. Kane does not challenge the court's
determination that ANC 2F established the applicability of
the privilege to the documents in question. Instead, he
argues that the ANC was precluded from asserting the
deliberative process privilege with respect to those
documents by provisions of the Advisory Neighborhood
Commission Act requiring it to hold open meetings and to
make documents available to the public. We disagree with Mr.
Kane and affirm the judgment of the Superior Court.
serves an area in Ward 2 that includes the neighborhood
around Thomas Circle. It has eight Commissioners, each of
whom represents a single-member district. The ANC has several
committees, including a committee on alcoholic beverage
control whose members include both Commissioners and local
2009, according to the undisputed allegations in Mr.
Kane's complaint, a restaurant near Thomas Circle named
Ghana Cafe received a District of Columbia liquor license
that was contingent on a settlement agreement its owners
reached with ANC 2F and other concerned parties. Mr. Kane was
a signatory to this multiparty agreement. Some four years
later, Ghana Cafe sought changes to the agreement to permit
it to offer live music and institute a cover charge. At a
public meeting on March 5, 2014, the Commissioners of ANC 2F
voted 6-1 in favor of replacing the 2009 agreement with a new
agreement to accommodate Ghana Cafe's needs.
Kane was opposed to this accommodation. Following the vote,
he sent ANC 2F a FOIA request for documents relating to Ghana
Cafe's license or any other liquor licenses for
establishments within the ANC's jurisdiction. The request
sought documents in the possession of the ANC or its
Commissioners, employees, or committee members, and
specifically called for a search of the personal and
government email accounts of ANC Commissioners. The Chairman
of ANC 2F notified Mr. Kane that the ANC would be unable to
respond to "the totality" of his request in a
reasonable time frame in view of its breadth and asked him to
consider narrowing the request to records involving Ghana
Cafe. Mr. Kane then commenced this lawsuit in
Superior Court, seeking a declaration that the District had
violated FOIA and an injunction requiring it to produce
documents responsive to his FOIA request. In an amended
complaint, Mr. Kane alleged that the ANC's failure to
search for and produce the documents he requested violated
not only FOIA but also the open meeting and informational
disclosure requirements in the ANC Act, specifically D.C.
Code § 1-309.11 (g).
District filed its answer and moved for judgment on the
pleadings, arguing that it was not a proper defendant because
ANC 2F is not an agency subordinate to the Mayor's
authority and Mr. Kane had not sought Mayoral intervention
prior to filing suit pursuant to D.C. Code § 2-537. The
Superior Court denied the motion, ruling that the District
was a proper defendant because the ANC is part of the
the lawsuit was under way, ANC 2F produced several thousand
pages of unredacted documents that it considered to be
responsive to Mr. Kane's request and not exempt from
disclosure, together with privilege logs (commonly referred
to as Vaughn indices). The logs listed documents
withheld or redacted pursuant to two FOIA exemptions, namely
the ANC's deliberative process privilege and the personal
privacy exemption. In accompanying affidavits, the Chairman
and Vice-Chairman of ANC 2F represented that the materials
withheld in their entirety pursuant to the deliberative
process privilege were "draft versions of ANC 2F
documents which reflect pre-decisional deliberations";
that redacted portions of produced emails contained
"internal pre-decisional deliberations weighing,
discussing, editing, revising, advising on, and advocating
for a broad range of ANC 2F official governmental
actions"; and that "[a]ll materials withheld
pursuant to the deliberative process privilege were part of
internal correspondence between ANC Commissioners, staff,
committee members, or District of Columbia government
personnel, " and not with any other individuals. The
internal correspondence was mostly email traffic.
document production was accomplished in three stages. The
affiants represented that ANC commissioners and staff had
performed diligent searches for all materials responsive to
Mr. Kane's FOIA request. In addition, an employee in the
District of Columbia Office of the Chief Technology Officer
provided an affidavit stating that he had conducted a
thorough search of government email accounts for emails
responsive to the FOIA request and had produced what he had
motion for summary judgment, Mr. Kane sought an order
requiring production of the documents withheld under the
deliberative process privilege. He contended that the
ANC's assertion of that privilege was improper because
the ANC Act required it to conduct its business only at
meetings open to the public and to make available to the
public all documents that were not related to personnel or
legal matters. (Mr. Kane did not seek disclosure of the
information withheld under the personal privacy exemption,
however.) In essence, Mr. Kane argued, FOIA does not empower
a public body to withhold information when other law mandates
its disclosure, and the ANC Act "acts as a waiver of
most FOIA exemptions including the deliberative process
Superior Court denied Mr. Kane's motion. Without directly
addressing his statutory contentions, the court concluded
that the ANC could assert the deliberate process privilege
and that its "very descriptive and thorough"
Vaughn indices, coupled with its officers'
affidavits, confirmed that the withheld or redacted records
were predecisional and part of a deliberative process.
Holding that the District therefore had met its burden of
demonstrating that the withheld materials were privileged and
exempt from disclosure, and that the District had complied
with its obligations under FOIA to search for and produce
non-exempt records responsive to Mr. Kane's request, the
court proceeded to dismiss the case. This appeal followed.
we consider whether ANC 2F properly asserted the deliberative
process privilege, we must address the District's
threshold contention, re-presented on appeal, that dismissal
was required because it is not a proper party to this
lawsuit. The District argues that "while ANC 2F is part
of the District government, " the Mayor "does not
control or supervise ANCs or their
Commissioners." Therefore, the District asserts, it would
be "powerless to comply" with an injunction to
provide the documents that Mr. Kane is requesting,
"[i]f a defendant cannot provide the requested relief,
the defendant should be dismissed."
not persuaded by the District's argument. First, it is by
no means clear from the record before us that the District
actually is unable to turn over the documents that have been
withheld or redacted under the deliberative process
privilege. We understand that a number of these documents
were found in the government email accounts maintained by the
District of Columbia Office of the Chief Technology Officer,
meaning they always have been in the District's
possession and under its control. In addition, the privilege
logs indicate that all the listed documents have been
collected and numbered for purposes of the litigation
("Bates-numbered"). It may well be the case that
the Attorney General has acquired custody of the documents
and is empowered to produce them if ordered to do so by the
as Mr. Kane alleged in his complaint and the District does
not deny, ANCs are non sui juris entities - they
cannot sue or be sued in their own name, nor may
Commissioners sue or be sued in their stead, i.e., in their
official rather than personal capacities. A person
aggrieved by the action or inaction of a non sui
juris body within the District government must name the
District as the defendant in order to sue for
the District does not dispute this general principle, it
argues that FOIA creates an exception allowing for suit
against non sui juris entities by providing in D.C.
Code § 2-537 (b) that the Superior Court "may
enjoin the public body from withholding
records." (Emphasis added.) The District cites no
authority in support of this interpretation of the
statute's sweep. Even if the interpretation is correct,
however, it does not follow that a non sui juris
"public body" can and must be named as the party
defendant instead of the District government of which it is a
component part. We see no reason why an injunction issued in
a FOIA suit against the District cannot specifically be
directed to the non sui juris "public
body" within the District government.
the Mayor does not appear to be as "powerless" to
secure an ANC's compliance with its FOIA obligations as
the District suggests. For one thing, FOIA itself empowers
the Mayor upon petition to "order" a public body to
disclose a wrongfully withheld public record. The District
points out that Mr. Kane could have petitioned the Mayor for
this relief but chose not to do so in order to go directly to
court. But if the Mayor could "order"
ANC 2F to comply with FOIA at Mr. Kane's request, surely
the Mayor could do so at the court's direction.
from FOIA, moreover, the ANC Act envisages a Mayoral and
executive branch role in the direction of ANC operations.
D.C. Code § 1-309.12 (d)(3)(E) specifies that the Mayor
"shall provide" to ANCs "[a]ny . . .
assistance necessary to ensure that a Commission is able to
perform its statutory duties." Relatedly, the Attorney
General is required by law to "provide legal
interpretations of statutes concerning or affecting the
Commissions, or of issues or concerns affecting the
Commissions." Under these statutes, the Mayor and the
Attorney General have authority to assist ANCs in complying
with their FOIA obligations. Even if their exercise of that
authority is not without limits, a court may require them to
exercise it; as a practical matter, we think it unlikely that
an ANC would reject their guidance.
these reasons, we decline to affirm the dismissal of Mr.
Kane's FOIA lawsuit on the ground that the District of
Columbia was not a proper party defendant.
Act provides that "any person has a right to inspect,
and at his or her discretion, to copy any public record"
of an ANC, "except as otherwise expressly provided by
[D.C. Code] § 2-534." The cited provision lists
seventeen exemptions from FOIA's disclosure requirements.
Exemption 4 allows public bodies to withhold
"[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." This exemption encompasses documents
within a public body's deliberative process
privilege. That privilege "shelters documents
reflecting advisory opinions, recommendations and
deliberations comprising part of a process by which
governmental decisions and policies are
formulated." In order to come within the deliberative
process privilege, "information must be both
'deliberative.'" In this case, the Superior
Court determined that these criteria were shown to be met by
the documents for which ANC 2F asserted the deliberative
Kane does not challenge that determination on appeal with
respect to any particular withheld or redacted
documents. Instead, he argues that the ANC was
precluded from asserting the deliberative process privilege
because it is required by the ANC Act (1) to deliberate in
the public eye and (2) to permit public inspection of all
documents in its possession that are not related to personnel