Kane v. Dist. of Columbia ( 2018 )

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. 15-CV-812
JAMES KANE, APPELLANT,
V.
DISTRICT OF COLUMBIA, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CAB-3386-14)
(Hon. Jeanette J. Clark, Trial Judge)
(Argued September 20, 2016 Decided March 22, 2018)
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.
GLICKMAN, Associate Judge: This appeal is from the dismissal of a lawsuit
seeking public records from an Advisory Neighborhood Commission (―ANC‖)
2
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 Act2 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.
I.
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.
1
D.C. Code §§ 2-531—2-540 (2016 Repl.).
2
D.C. Code §§ 1-309.01—1-309.15 (2016 Repl.).
3
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 multi-
party 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
4
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.
3
The Chairman explained that Mr. Kane‘s request encompassed ―literally
thousands of potentially responsive documents‖ and that it would require an
inordinate amount of time ―to review individual records to determine if redactions
were necessary or if they are otherwise impinged upon by privileges set forth in
law, and to reformat and prepare the responsive documents.‖ The Chairman noted
that he served in a volunteer capacity and that ANC 2F had no full-time, paid staff.
5
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 indices4). The logs listed documents withheld or redacted pursuant to
two FOIA exemptions, namely the ANC‘s deliberative process privilege5 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
4
See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973).
5
As explained infra, the deliberative process privilege is incorporated in the
exemption for inter-agency and intra-agency memoranda set forth in D.C. Code §
2-534 (a)(4).
6
See D.C. Code § 2-534 (a)(2) (exempting from disclosure ―[i]nformation
of a personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy‖).
6
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
7
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.
II.
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
8
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.
7
Brief for Appellee at 33.
8
Id.9
Id. (quoting Francis v. Recycling Sols., Inc., 695 A.2d 63, 70 (D.C. 1997)).
9
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
10
See D.C. Code § 1-309.10 (g) (stating that an ANC ―shall not have the
power to initiate a legal action in the courts of the District of Columbia or the
federal courts, provided that this limitation does not apply to or prohibit any
Commissioner from bringing suit as a citizen‖); Francis, 695 A.2d at 71 (stating
that ―a noncorporate department within a municipal corporation is not sui juris,‖
and that the director of such a department cannot sue on its behalf in her official
capacity); Braxton v. Nat’l Capital Hous. Auth., 396 A.2d 215, 216 (D.C. 1978)
(explaining that, in the absence of statutory authorization, noncorporate bodies
within the District of Columbia government ―are not suable as separate entities‖).
11
See Zirkle v. District of Columbia, 830 A.2d 1250, 1253 n.1 (D.C. 2003)
(suit alleging misconduct of non sui juris agency of the District properly brought
against the District, not the agency); Braxton, 396 A.2d at 216-17 (suit alleging
negligence by the National Capital Housing Authority properly brought against the
District of Columbia because it was a non sui juris agency of the District).
10
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.
12
D.C. Code § 2-537 (a) provides an optional administrative appeal
procedure, pursuant to which ―any person denied the right to inspect a public
record of a public body may petition the Mayor to review the public record to
determine whether it may be withheld from public inspection.‖ Subsection (a)(2)
provides in pertinent part that ―[i]f the Mayor decides that the public record may
not be withheld, he shall order the public body to disclose the record immediately.‖
13
Mr. Kane was not required to appeal to the Mayor under § 2-537 (a) in
order to exhaust his administrative remedies. See D.C. Code § 2-532 (e).
11
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.
14
D.C. Code § 1-309.12(d)(4) (added by D.C. Law 21-269, § 2 (g), 64 D.C.
Reg. 2162, 2166 (Feb. 24, 2017)).
12
III.
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,
15
D.C. Code § 1-309.13 (p).
16
Id. § 2-534 (a)(4).
17
See id. § 2-534 (e).
18
Fraternal Order of Police v. District of Columbia, 79 A.3d 347, 354-55
(D.C. 2013) (quoting Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d
1429, 1433 (D.C. Cir. 1992)).
13
―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 or
legal matters. These contentions raise pure questions of law, as to which our
review is de novo.22
19
Id. at 355 (quoting Petroleum Info. Corp., 976 F.2d at 1434). ―A
document is ‗predecisional‘ if it was prepared in order to assist an agency decision
maker in arriving at his decision rather than to support a decision already made,
and material is ‗deliberative‘ if it reflects the give-and-take of the consultative
process.‖ Id.20
The government bears the burden of demonstrating that documents
qualify for an exemption from disclosure. See District of Columbia v. Fraternal
Order of Police, 75 A.3d 259, 264 (D.C. 2013).
21
We therefore express no view in this opinion as to whether the Superior
Court correctly ruled that all the information withheld by ANC 2F met the criteria
of the deliberative process privilege.
22
See, e.g., O’Rourke v. District of Columbia Police & Firefighters’ Ret. &
Relief Bd., 46 A.3d 378, 383 (D.C. 2012).
14
The first contention turns on the proper interpretation of the term ―official
action‖ in D.C. Code § 1-207.42 (a) (2016 Repl.), which is commonly known as
the District‘s Sunshine Act. The ANC Act states that ANCs are ―subject to the
open meetings provisions of § 1-207.42 (a),‖23 which say:
All meetings (including hearings) of any department,
agency, board, or commission of the District government,
including meetings of the Council of the District of
Columbia, at which official action of any kind is taken
shall be open to the public. No resolution, rule, act,
regulation, or other official action shall be effective
unless taken, made, or enacted at such meeting.
Mr. Kane argues that ANC Commissioners‘ predecisional, deliberative exchanges
are ―official actions‖ within the meaning of these provisions, and that the Sunshine
Act therefore requires such exchanges to take place at public meetings.24 It
follows, he argues, that ANC 2F cannot invoke the deliberative process privilege to
shield such exchanges from public disclosure.
23
D.C. Code § 1-309.11 (g).
24
Relatedly, Mr. Kane argues that ANC Commissioners are engaged in
―meetings‖ within the meaning of the Sunshine Act when they communicate by
email rather than in person. We need not resolve this question, though we note that
while the District‘s Open Meetings Act (discussed infra) recognizes that meetings
may be held electronically rather than in person, it provides that ―[e]-mail
exchanges between members of a public body shall not constitute an electronic
meeting.‖ D.C. Code § 2-577 (c) (2016 Repl.).
15
The Sunshine Act does not contain an explicit definition of the term ―official
action.‖ In our view, however, the term cannot bear the broad meaning Mr. Kane
proposes. His interpretation is implausible not only because it would virtually
obliterate FOIA‘s explicit recognition of a government-wide privilege for non-
public deliberations,25 but because it conflicts with the text of the Sunshine Act
itself. That Act speaks of an ―official action‖ as one that becomes ―effective‖ after
being ―taken, made, or enacted.‖ These are not words that readily apply to
predecisional deliberations. Significantly, moreover, the second sentence of § 1-
207.42 (a) uses ―official action‖ as a catch-all term at the end of a more specific list
of such actions; applying the canon of ejusdem generis, ―this court interprets
general words or phrases that follow a specific list to include only items of the
same type as those listed.‖26 Thus, we infer that ―official action‖ within the
meaning of the Sunshine Act must be akin to a ―resolution, rule, act, [or]
regulation‖ – that is, it must be a formal action having some legal or dispositive
effect rather than predecisional deliberation or just any action undertaken in the
25
See D.C. Code § 2-534 (e) (incorporating the deliberative process
privilege and other privileges under the inter-agency memoranda exemption and
stating that ―these privileges . . . shall extend to any public body that is subject to
this subchapter [i.e., FOIA]‖).
26
Sydnor v. United States, 129 A.3d 909, 912 (D.C. 2016) (internal
quotation marks omitted).
16
performance of official duties. That is, we think, the ―common sense reading of
the statute.‖27
It is also how the District of Columbia Council read the Sunshine Act when
it enacted the Open Meetings Act of 2010.28 The accompanying Committee
Report explained that the Open Meetings Act was designed to expand public
access to government meetings beyond the access afforded by the Sunshine Act,
which ―only covers meetings where official action is taken.‖29 To that end, the
Committee Report stated, the Open Meetings Act ―broaden[ed] current law‖ by
defining the meetings that are open to the public to include ―any gathering of a
quorum of the members of a public body where the members consider, conduct, or
advise on public business.‖30 ―[N]ot only would this include any meeting where
official action is taken,‖ the Committee Report elaborated, it ―would also include
any meetings in preparation for official action or where official action is being
27
Id. at 913.
28
D.C. Code §§ 2-571—2-580 (2016 Repl.).
29
D.C. Council, Report on Bill 18-716, the ―Open Meetings Act of 2010,‖
at 3 (December 2, 2010) (hereinafter, ―Committee Report‖).
30
Id. at 5; see D.C. Code § 2-574 (1).
17
discussed.‖31 This explanation confirms our conclusion that the Sunshine Act
cannot be read to require ANCs to conduct predecisional deliberations (whether or
not they are privileged) in public.32 Furthermore, the Council specifically
exempted ANCs from the more stringent public access requirements of the Open
Meetings Act while stating that ANCs remain subject to the open meetings
provisions of the Sunshine Act.33 Accordingly, we hold that ANC 2F‘s assertion
of the deliberative process privilege in this case did not contravene its statutory
obligation to take official action at meetings open to the public.34
31
Committee Report at 5.
32
We express no view as to whether, or to what extent, the Open Meetings
Act precludes public bodies subject to its strictures from asserting the deliberative
process privilege. Cf. D.C. Code § 2-534 (e) (providing that the deliberative
process privilege and other privileges ―shall extend to any public body that is
subject to‖ FOIA).
33
See D.C. Code § 2-574 (3) (―The term ‗public body‘ shall not include . . .
(F) Advisory Neighborhood Commissions; provided, that this subchapter shall not
affect the requirements set forth in § 1-309.11.‖).
34
Lest we be misunderstood, we do not mean to suggest that ANCs need to
conduct open meetings only when they are required to do so by the Sunshine Act.
The ANC Act requires ANCs to meet in public session at regular intervals, not
only to take official action, but also for such purposes as considering and making
recommendations on public matters and hearing the views of residents and other
affected persons on problems or issues of concern. See D.C. Code § 1-309.11 (b).
This does not mean, however, that all deliberations by ANC Commissioners must
occur in public or be open to the public.
18
Mr. Kane‘s second contention is based on a provision the Council added to
D.C. Code § 1-309.11 (g) in the Comprehensive Advisory Neighborhood
Commissions Reform Amendment Act of 2000 (hereinafter the ―ANC Amendment
Act‖).35 The added provision read as follows:
Without limiting the scope of that section [i.e., the
Sunshine Act, § 1-207.42 (a)], the following categories of
information are specifically made available to the public:
(1) The names, salaries, title, and dates of
employment of all employees of the
Commission;
(2) Final decisions of the Commission, including
concurring and dissenting opinions;
(3) Information of every kind dealing with the
receipt or expenditures of public or other funds
by the Commission;
(4) All documents not related to personnel and
legal matters;
(5) The minutes of all Commission meetings; and
(6) Reports of the District of Columbia Auditor.
(Emphasis added.) Mr. Kane contends that in this provision, the Council waived
not only the deliberative process privilege but virtually all FOIA exemptions that
would otherwise be applicable to ANC documents. This is so, he argues, because
35
D.C. Law 13-135, § 3 (b), 47 D.C. Reg. 2741, 2750 (June 27, 2000).
19
FOIA itself states that its exemptions ―shall not operate to permit nondisclosure of
information of which disclosure is authorized or mandated by other law,‖36 and
§ 1-309.11 (g)(4) constitutes such ―other law‖ inasmuch as it specifically mandates
disclosure of ―[a]ll [ANC] documents not related to personnel and legal matters.‖
As additional support for his argument that § 1-309.11 (g)(4) ―take[s] precedence‖
over the enumeration of FOIA exemptions in § 2-534, Mr. Kane invokes the canon
of statutory construction that ―a special statute covering a particular subject matter
is controlling over a general statutory provision covering the same and other
subjects in general terms.‖37
We do not agree that § 1-309.11 (g)(4) waived the deliberative process
privilege or, indeed, any FOIA exemptions. In the very same legislation in which
the Council amended § 1-309.11 (g), it also amended § 1-309.13 (p) to add the
language quoted earlier in this opinion specifically addressing the applicability of
FOIA. To repeat, the added language provided that members of the public have a
right to inspect and copy ―any public record of [an ANC], except as otherwise
36
D.C. Code § 2-534 (c).
37
In re G.K., 993 A.2d 558, 567 (D.C. 2010) (internal quotation marks
omitted); Brief for Appellant at 15.
20
expressly provided by [D.C. Code] § 2-534,‖38 the section that lists all the available
FOIA exemptions including the deliberative process privilege. In other words, far
from waiving any FOIA exemptions, the ANC Amendment Act explicitly
preserved them. Construing § 1-309.11 (g) as abrogating those exemptions
therefore would ―create a square conflict between the two statutory provisions, a
conflict the Council of the District of Columbia could not have intended.‖39
In fact, although § 1-309.11 (g)(4) permits an ANC to withhold documents
only if they are ―related to personnel and legal matters,‖ nothing in the legislative
history of the ANC Amendment Act suggests that the Council meant these words
to limit the availability of the deliberative process privilege or any of the other
FOIA exemptions referenced in § 1-309.13 (p). If anything, the Committee Report
on the Act treats documents covered by FOIA exemptions as equivalent to, or as a
subset of, documents ―related to personnel and legal matters,‖ for it states that § 1-
309.13 (p) (which explicitly incorporates all the FOIA exemptions) ―expressly‖
permits public inspection of ANC records ―unless that information is protected by
38
D.C. Law 13-135, § 3 (d).
39
Atiba v. Washington Hosp. Ctr., 43 A.3d 940, 941-42 (D.C. 2012).
21
its legal nature or is related to personnel.‖40 We need not agree that the two
statutory provisions are equivalent to recognize that the Report‘s characterization
of § 1-309.13 (p) rebuts Mr. Kane‘s contention that § 1-309.11 (g)(4) amounts to a
waiver or curtailment of the deliberative process privilege and virtually all the rest
of the exemptions from FOIA.41 Recently, moreover, the Council confirmed our
understanding that § 1-309.11 (g)(4) did no such thing. In the Advisory
Neighborhood Commissions Omnibus Amendment Act of 2016, the Council added
a proviso to § 1-309.11 (g) stating explicitly that the six listed categories of
information (including ―(4) All documents not related to personnel and legal
matters‖) shall be available to the public ―subject to [§ 2-534].‖42 We view this
40
D.C. Council, Report on Bill 13-468, the ―Comprehensive Advisory
Neighborhood Commissions Reform Amendment Act of 2000,‖ at 12 (January 11,
2000).
41
The language of the Committee Report similarly lends no support to Mr.
Kane‘s suggestion that § 1-309.11 (g)(4) significantly limits § 1-309.13 (p), so that
―an ANC cannot invoke the deliberative process exemption to shield from
disclosure those records that are not related to personnel or legal matters.‖ Brief
for Appellant at 18. We consider such a novel restriction on the applicability of
the privilege to be both vague and unwarranted because it begs the question of
what §1-309.11 (g) means by ―related to personnel and legal matters,‖ conflicts
with § 1-309.13 (p)‘s treatment of FOIA‘s exemptions as potentially applicable to
all ANC records regardless of their particular character, and lacks a persuasive
policy rationale.
42
See D.C. Law 21-269, § 2 (f), 64 D.C. Reg. 2162, 2166 (emphasis added).
A fiscal contingency stalled the effective date of this amendment of § 1-309.11
(continued…)
22
unheralded amendment not as a substantive change in the statute, but as a
clarification of it.43
Accordingly, we reject Mr. Kane‘s second contention and hold that D.C.
Code § 1-309.11 (g)(4) did not preclude ANC 2F from asserting the deliberative
process privilege to withhold information in response to Mr. Kane‘s FOIA request.
(…continued)
until December 13, 2017, when the contingency was removed by § 7036 of the
Fiscal Year 2018 Budget Support Act of 2017, D.C. Law 22-33, 64 D.C. Reg.
7652, 7747 (Aug. 11, 2017).
43
If we viewed the recent amendment of § 1-309.11 (g) as substantively
changing the law, we would ask the parties to address the applicability of the
change to this and other cases pending when the amendment went into effect. See
Landgraf v. USI Film Prods., 511 U.S. 244, 273 (1994) (―Even absent specific
legislative authorization, application of new statutes passed after the events in suit
is unquestionably proper in many situations. When the intervening statute
authorizes or affects the propriety of prospective relief, application of the new
provision is not retroactive.‖); id. at 280 (when the legislature has not answered the
question, applicability of a new statute to pending cases turns on ―whether the new
statute would have retroactive effect, i.e., whether it would impair rights a party
possessed when he acted, increase a party‘s liability for past conduct, or impose
new duties with respect to transactions already completed.‖). New FOIA
exemptions have been held applicable to pending cases. See City of Chicago v.
U.S. Dep’t of the Treasury, 423 F.3d 777, 783 (7th Cir. 2005); Sw. Ctr. for
Biological Diversity v. U.S. Dep’t of Agric., 314 F.3d 1060, 1062 (9th Cir. 2002).
23
IV.
For the foregoing reasons, the judgment of the Superior Court dismissing
Mr. Kane‘s FOIA suit against the District of Columbia is hereby affirmed.
So ordered.