KIRBY VINING v. COUNCIL OF THE DISTRICT OF COLUMBIA

District of Columbia
Court of Appeals
No. 14-CV-1322 JUN - 9 2016

KIRBY VINING,
Appellant,

v. CAB-568-14

COUNCIL OF THE DISTRICT OF COLUMBIA,
Appellee.

On Appeal from the Superior Court of the District of Columbia
Civil Division

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.

For the Court:

Dated: June 9, 2016.

Opinion by Associate Judge Catharine Easterly.

Opinion concurring in part and concurring in the judgment by Senior Judge Michael W.
Farrell.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CV-1322 6/9/16

KIRBY VINING, APPELLANT,

V.

COUNCIL OF THE DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court
of the District of Columbia
(CAB-568-14)

(Hon. Robert Okun, Trial Judge)

(Argued November 3, 2015 Decided June 9, 2016)

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.

Opinion for the court by Associate Judge EASTERLY.
 2

Opinion by Senior Judge FARRELL, concurring in part and concurring in the
judgment, at page 25.

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.
 3

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

1
In particular, Mr. Vining requested (1) all emails to or from
Councilmember Kenyan McDuffie “with the terms „Historic Preservation Review
Board,‟ „HPRB,‟ „Vision McMillan Partners,‟ „VMP,‟ or „McMillan‟ in the subject
or body of the email”; and (2) all emails that Councilmember McDuffie “sent to or
received from any person connected with, under contract to, or employed by the
Historic Preservation Review Board, the HPRB, Vision McMillan Partners, or
VMP. All documents, whether electronic or non-electronic, that mention the
McMillan Sand Filtration Site, McMillan Reservoir, McMillan Park, or 2501 First
Street.”
2
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, 484 F.2d 820, 827-28 (D.C. Cir. 1973); Fraternal Order of
Police, Metro. Police Labor Comm. v. District of Columbia, 79 A.3d 347, 352 n.3
(D.C. 2013); Riley v. Fenty, 7 A.3d 1014, 1018 n.2 (D.C. 2010).
 4

“[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.

3
As to 65 documents, the Council 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.
4
See D.C. Code § 2-537 (a-1) (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 injunctive 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.”).
5
The Council cited D.C. Code § 2-534 (e) (incorporating under Exemption
4 the deliberative-process privilege, among other common law privileges), but
otherwise did not elaborate on this argument.
 5

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.

6
At the same time, the court denied Mr. Vining‟s motion for summary
judgment.
 6

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

7
Unlike federal courts created under Article III of the U.S. Constitution, we
are not bound by Article III‟s case-or-controversy requirement. See Fraternal
Order of Police, 113 A.3d at 199. For prudential reasons, however, we generally
“follow the principles of standing, justiciability, and mootness.” Id. (brackets
omitted) (quoting Atchison v. District of Columbia, 585 A.2d 150, 153 (D.C.
1991)).
8
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, 79 A.3d at
355. When a public body opts to rely on a Vaughn index without providing
supporting affidavits or declarations, “the index must supply enough information to
(continued…)
 7

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

(…continued)
enable the court to assess whether the District properly invoked the [exemption].”
Id. at 358.
 8

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 Plaintiff‟s 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.

9
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., 126
A.3d 1137, 1140 (D.C. 2015) (“Basic statutory interpretation requires that statutes
should be construed so as to avoid rendering superfluous any statutory language.”)
(internal quotation marks omitted).
 9

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 Exemption 6, and so we understand that the Superior Court‟s ruling

was limited to a conclusion that the Legislative Procedure Act allowed the Council

to withhold documents under this single exemption.

Accordingly, we conclude that Mr. Vining‟s challenge to the trial court‟s

ruling is not moot.

10
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.
 10

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 put that analysis in

context and review the pertinent statutes: the Legislative Privilege Act of 197511

and D.C. FOIA itself.

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 prospective relief whenever the

suits are related to their legislative functions. See Eastland v. United States

11
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)
(“[T]his 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).
 11

Servicemen’s Fund, 421 U.S. 491, 503 (1975) (prospective relief); Tenney v.

Brandhove, 341 U.S. 367, 372-74, 379 (1951) (damages). The central purpose of

the Speech or Debate Clause is to “preserve the constitutional structure of separate,

coequal, and independent branches of government.” United States v. Gillock, 445

U.S. 360, 369 (1980) (citing United States v. Helstoski, 442 U.S. 477, 491 (1979)).

When drafting the Legislative Privilege Act, the Council noted approvingly that

the Speech or Debate Clause affords members of Congress “wide freedom of

speech, debate and deliberation without intimidation from the Executive Branch,”

and it protects them “against civil actions and criminal prosecutions that threaten to

delay and disrupt the legislative process.” Committee on the Judiciary and

Criminal Law, D.C. Council, Report on Bill 1-34 at 2 (Dec. 4, 1975). The Council

indicated that its aim in drafting the Legislative Privilege Act was, “[s]imilarly,” to

give Councilmembers corresponding “immunities and freedoms . . . in exercising

their duties in the legislative sphere.” Id.

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
 12

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 § 1-301.41 (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).12 More concretely,

D.C. FOIA gave the public access to “public record[s],” id. at § 202, i.e., “all

books, papers, maps, photographs, cards, tapes, recordings, or other documentary

12
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 practices had failed. Id. at 3-4 (noting the need “for a policy which
has the force of law”).
 13

materials regardless of physical form or characteristics prepared, owned, used, in

the possession of, or retained by the Mayor and agencies,” id. at § 209

(incorporating the definitions from the D.C. Administrative Procedure Act)

(current version at D.C. Code § 2-539 (a) (2015 Supp.)); id. at § 3 (d) (amending

the DCAPA with this definition of “public record”) (current version at D.C. Code

§ 2-502 (18)). Although it authorized a number of exemptions from disclosure, id.

at § 204, D.C. FOIA explicitly directed that its provisions were to “be construed

with the view toward expansion of public access,” id. at § 201.

As originally enacted, D.C. FOIA applied only to the executive branch.13 Id.

at § 202 (providing access to “any public record of the Mayor or an agency”).

Nevertheless, it became “the practice of the Council to abide by the requirements

of FOIA.” Committee on Government Operations, D.C. Council, Report on Bill

13-829 at 2 (Oct. 31, 2000). In 2000, the Council amended D.C. FOIA to codify

this practice. Noting that “several states have decided to explicitly include the

legislative branch under their state counterparts to FOIA,” and reasoning that “it is

only fair for the Council to abide by the same rules as the executive branch with

respect to public access to information,” the Council extended D.C. FOIA to itself.

13
Similarly, federal FOIA as originally enacted did not apply to Congress,
and it still does not. See infra p. 22.
 14

Id.; see also Freedom of Information Amendment Act of 2000, D.C. Law 13-283

(2001).

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, 79 A.3d at 353.

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 can identify a statutory exemption that authorizes it to withhold

responsive information.14 D.C. Code §§ 2-531, -532. Here the Council invoked

Exemption 6, which allows the Council and executive agencies of the District

government to withhold from the public “[i]nformation specifically exempted from

14
Outside of these statutory exemptions, courts have “no general equitable
power to prevent disclosure under [D.C.] FOIA.” Barry v. Washington Post Co.,
529 A.2d 319, 321 (D.C. 1987) (per curiam).
 15

disclosure by statute . . . , provided that such statute” either leaves no discretion on

the issue or “[e]stablishes particular criteria for withholding or refers to particular

types of matters to be withheld.” D.C. Code § 2-534 (a)(6). To promote D.C.

FOIA‟s open-government objective, we are required to interpret this exemption

“narrowly,” “with ambiguities resolved in favor of disclosure.” Fraternal Order of

Police, Metro. Labor Comm. v. District of Columbia, 82 A.3d 803, 813 (D.C.

2014) (quoting Fraternal Order of Police, Metro. Police Labor Comm. v. District

of Columbia, 79 A.3d at 354). We conclude that the Legislative Privilege Act

cannot be invoked through Exemption 6 so as to permit the Council to withhold

documents responsive to a FOIA request.15

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 exemption under federal FOIA,16 has

15
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.
16
See Reporters Comm. for Freedom of Press v. U.S. Dep’t of Justice, 816
F.2d 730, 734-35 (D.C. Cir. 1987) (interpreting the analogous federal exemption
and explaining that “a statute that is claimed to qualify as [a] . . . withholding
statute must, on its face, exempt matters from disclosure”), modified on other
grounds, 831 F.2d 1124 (D.C. Cir. 1987), rev’d on other grounds, 489 U.S. 749
(continued…)
 16

looked exclusively to the text of the proffered statute to determine whether it

explicitly shields information from public view. See Barry v. Washington Post

Co., 529 A.2d 319, 322 (D.C. 1987) (per curiam).17 The text of the Legislative

Privilege Act does not do this. To the contrary, it prohibits “question[ing]”

Councilmembers “in any other place” regarding “any speech or debate made in the

course of their legislative duties.” D.C. Code § 1-301.42. Moreover, the statute‟s

broad definition of “legislative duties” incorporates public acts and statements: for

example, draft legislation that is made available to the public, statements made by

Councilmembers during open hearings, and published reports by Council

committees. See D.C. Code § 1-301.41 (b).

(…continued)
(1989). See generally Fraternal Order of Police, Metro. Labor Comm. v. District
of Columbia, 113 A.3d at 199 (“[I]n the context of FOIA cases, we routinely look
to federal law to interpret analogous provisions in our own Act.”).
17
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. 529 A.2d at 322. We also rejected the argument that the funding statute
authorized nondisclosure because other statutes with similar language had
“historically signified a confidential fund.” Id. We noted that “neither the
Congress nor the District of Columbia Council [had taken] the obvious step of
stating that records of the two funds were exempt from disclosure.” Id. “In the
absence of such a provision in [the] statute,” we explained, “[E]xemption 6 does
not apply.” Id.
 17

Our conclusion that the Council cannot seek the protection of the Legislative

Privilege Act under Exemption 6 is reinforced 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 “[i]nvestigatory 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.”18 This would have been unnecessary had the Council already enjoyed

broad protection under Exemption 6 from disclosing to a FOIA requester any

information related to its legislative duties as defined by the Legislative Privilege

Act.19

18
See Freedom of Information Legislative Records Clarification
Amendment Act of 2004, D.C. Law 15-256, § 2 (2005).
19
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).
 18

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 related to its legislative activities would permit the Council to

withhold swaths of public documents in direct conflict with FOIA‟s open-

government mission. We are not persuaded by the Council‟s argument that a sliver

of documents would still fall outside Exemption 6;20 surely, this constricted scope

of disclosure was not what the Council envisioned when it announced that it would

“abide by the same rules as the executive branch with respect to public access to

information.” Report on Bill 13-829 at 2.

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

20
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.
 19

broad administrative discretion is exactly what the Council sought to remove from

public bodies when it first passed D.C. FOIA forty years ago,21 and broad

administrative discretion is exactly what the Council surrendered when it chose to

subject itself to FOIA.

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 interpreting 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

that claimed withholding statutes explicitly exempt information from public

21
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).
 20

disclosure. Cf. Reporters Comm. for Freedom of Press, 816 F.2d at 734-35

(analyzing the analogous exemption under federal FOIA and explaining that courts

must find a legislative “purpose to exempt matters from disclosure in the actual

words of the statute (or at least in the legislative history of FOIA)—not in the

legislative history of the claimed withholding statute, nor in an agency‟s

interpretation of the statute” (citation omitted)). But even if we read Exemption 6

expansively, we could not agree with the Council‟s contention that the Legislative

Privilege Act permits non-disclosure of the documents in this case.

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 Council22 and its General Counsel,23 not on

22
The Secretary of the Council is the Council‟s FOIA Officer. Rules of
Organization and Procedure for the Council of the District of Columbia, Council
Period 21, Rule 811 (a), 62 D.C. Reg. 493, 580 (Jan. 16, 2015) [hereinafter
Council Rule]. See D.C. Code § 2-538 (d) (2015 Supp.) (“Each public body
subject to the provisions of this subchapter shall designate a Freedom of
Information Officer.”). It is the Secretary‟s job to provide records in response to
FOIA requests, Council Rule 811 (b), and to conduct an initial review to determine
“whether the Council possesses the identified record” and whether “the record
requested is a public record,” Council Rule 811 (d)(1).
 21

Councilmembers and their aides, thereby minimizing any disruption to the

operation of the Council.24

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, 597 F. Supp. 2d 107, 115 (D.D.C. 2009), this court must

interpret the Legislative Privilege Act as a withholding statute—a “non-disclosure

statute,” in the Council‟s words—within the meaning of D.C. Code § 2-534 (a)(6).

Even assuming that our Legislative Privilege Act is co-extensive with the Speech

or Debate Clause,25 federal decisions like Williams do not convince us that the

Legislative Privilege Act constitutes a withholding statute under D.C. FOIA

(…continued)
23
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.
24
See generally Council Rule 811, 62 D.C. Reg. at 580-81 (describing the
Council‟s procedures for complying with FOIA).
25
Dorsey v. District of Columbia is the sole case in which we have
examined and upheld the application of Legislative Privilege Act. 917 A.2d 639,
643 (D.C. 2007). Specifically, we determined that the statute protected a
Councilmember from being sued. Id. We did not say in Dorsey that we were
adopting the entire body of federal precedent interpreting the Speech or Debate
Clause; we merely noted that it was our first occasion to interpret the District‟s
statute, and explained that we were “not . . . attempt[ing] to define the limits of its
protections.” Id. at 643.
 22

Exemption 6. It is true that several federal courts have held that, under the Speech

or Debate Clause, members of Congress may not be forced to submit to civil

discovery,26 but these courts have never held that the Speech or Debate Clause

constitutes a basis for withholding documents under the analogous exemption of

federal FOIA, for the simple reason that federal FOIA does not apply to Congress,

5 U.S.C. § 551 (1)(A) (2012).27 In other words, we are confronted with an entirely

26
We have suggested in dicta that we would hold the same with respect to
Councilmembers. 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”).
27
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, 876
F.2d 165 (D.C. Cir. 1989) (holding Councilmember immune from suit for acts
within legislative duties); Williams v. Johnson, 597 F. Supp. 2d 107 (D.D.C. 2009)
(granting motion to quash subpoenas seeking deposition testimony and production
of documents from Councilmember and aide); Chang v. United States, 512 F.
Supp. 2d 62 (D.D.C. 2007) (granting motion to quash subpoenas seeking
production of documents from the Special Counsel to the Council‟s Committee on
the Judiciary); Alliance for Glob. Justice v. District of Columbia, 437 F. Supp. 2d
32 (D.D.C. 2006) (ruling that the District could not be compelled under FED. R.
CIV. P. 30 (b)(6) to produce a deponent to provide the Council‟s views on its own
statutes); Dominion Cogen, D.C., Inc. v. District of Columbia, 878 F. Supp. 258
(D.D.C. 1995) (ruling Councilmembers immune from suit for acts within
legislative duties). Cf. In re Search of Elec. Commc’ns in Account of
chakafattah@gmail.com, 802 F.3d 516, 527-29 (3d Cir. 2015) (explaining that, at
least “with respect to records disclosed to the Government in the course of an
investigation,” “[t]he Speech or Debate Clause does not prohibit the disclosure of
privileged documents. Rather, it forbids the evidentiary use of such documents.”).
 23

different legal landscape—one in which the Council has chosen to accord itself a

statutory privilege to protect itself, like Congress, from executive and judicial

meddling but, unlike Congress, has also chosen to subject itself to an open-

government law. The federal cases interpreting the Speech or Debate Clause

simply do not speak to this situation.

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, 917 A.2d at 643, this end-run scenario could arise only if a

litigant suing a third party sought to obtain information relevant to its suit from the

Council via D.C. FOIA. In such a circumstance, the Council would be free to

assert any relevant exemption from disclosure.28 But if a particular document did

not fall within any of FOIA‟s exemptions, the Council would, under its open-

28
Cf. United States v. Weber Aircraft Corp., 465 U.S. 792, 794-99 (1984)
(holding that FOIA exemption applied to information requested from Air Force by
aircraft manufacturers after aircraft manufacturers had already failed to obtain the
same information from the Air Force through pretrial discovery).
 24

government obligations, be required to disclose the document. There is nothing

absurd about such a result. Cf. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143

n.10 (1975) (explaining that a litigant‟s rights under the federal FOIA were

“neither increased nor decreased” because the litigant claimed “an interest in the

[information sought under the Act] greater than that shared by the average member

of the public”).

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 not 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.
 25

FARRELL, Senior Judge, 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 24 (emphasis added). But I am not ready to say, nor need we

decide here, that FOIA-requested disclosure of communications to or from a

Councilmember in the course of his legislative duties may never be tantamount to,

the functional equivalent of, “question[ing]” the member as prohibited by the LPA.

The fact that information of that kind might also be shielded by another FOIA

exemption — say, the deliberative process privilege — would not be reason alone

to hold that it falls outside the protection of Exemption 6 via the LPA.

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 20. 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.