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Kane v. District of Columbia

Court of Appeals of The District of Columbia

March 22, 2018

James Kane, Appellant,
District of Columbia, Appellee.

          Argued: September 20, 2016

          Appeal from the Superior Court of the District of Columbia (CAB-3386-14) (Hon. Jeanette J. Clark, Trial Judge)

          Don Padou for appellant.

          Carl 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.

          Before Glickman, Easterly, and McLeese, Associate Judges.


         This 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").[1] 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[2] 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.


         ANC 2F 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 residents.

         In 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.

         Mr. 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.[3] 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).

         The 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 District Government.

         After 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[4]). The logs listed documents withheld or redacted pursuant to two FOIA exemptions, namely the ANC's deliberative process privilege[5] and the personal privacy exemption.[6] 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.

         The 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 found.

         In a 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 exemption."

         The 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.


         Before 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."[7] Therefore, the District asserts, it would be "powerless to comply" with an injunction to provide the documents that Mr. Kane is requesting, [8]and "[i]f a defendant cannot provide the requested relief, the defendant should be dismissed."[9]

         We are 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 court.

         Second, 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.[10] 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 relief.[11]

         Although 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.

         Third, 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.[12] 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.[13] 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.

         Apart 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."[14] 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.

         For 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.


         The ANC 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."[15] 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."[16] This exemption encompasses documents within a public body's deliberative process privilege.[17] That privilege "shelters documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."[18] In order to come within the deliberative process privilege, "information must be both 'predecisional' and 'deliberative.'"[19] 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 process privilege.[20]

         Mr. Kane does not challenge that determination on appeal with respect to any particular withheld or redacted documents.[21] 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 ...

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