Council Can’t Claim FOIA “Speech or Debate” Exemption

dcogcadmin | June 9, 2016

The D.C. high court ruled June 9 that an obscure law doesn’t work as an almost total exemption for the D.C. Council from the broad public access requirements of the District’s Freedom of Information Act (FOIA), extended by the Council to cover itself in 2000.

The law, known as the Legislative Privilege Act, is copied from similar language in the United States Constitution known as the “speech and debate clause” (Article I, Sec. 6) that protects Members of Congress and staff from lawsuits about what they say in their legislative function.

The D.C. version, passed in 1975, says that “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.”

Kirby Vining asked the Council for records that were any type of communications of Council Member Kenyan McDuffie with a proposed developer and the D.C. Historic Preservation Review Board concerning the 25-acre McMillan Sand Filtration Site (in McDuffie’s Ward 5 district) on North Capitol Street just south of the MedStar and Veterans hospital complex. 

The Council released some records but denied 149 others. Council attorneys argued in two parts:  first, that the general FOIA public records law exempts items specifically shielded by other laws; second, the “speech and debate” law should be interpreted as such a law withholding records from release.   

The lower court’s decision by Associate Judge Robert Okun upholding the Council position was overturned in today’s decision of a three-judge panel on Mr. Vining’s appeal.

For the appeals court, Associate Judge Catharine Easterly laid out a number of reasons for rejecting the Council’s broad interpretation allowing itself to exempt virtually all its records:

• the “speech and debate” law aims to protect only against “questioning” of Members and staff that could disrupt their work; it’s a stretch to say this includes locking up most records;
• the Council’s new position is illogical — if the Council is correct about the extreme protection afforded, then it doesn’t make sense that the Council also legislated other specific FOIA amendments in 2004 to shield records of Council investigations and also exchanges among Council members and staff crafting legislation;
• the Council position has appeared out of the blue — in all the years of FOIA litigation it’s never before been presented to the court; and
• the Council’s new-found theory of broad powers to withhold records connected at all with legislative activity is inconsistent — it can’t be what the Council meant in 2000 adding itself to the Freedom of Information Act and promising to “abide by the same rules” as the executive branch.

Senior Judge Michael Farrell noted the Council did turn over some records and might succeed in some future hypothetical uses of the new theory of exemption of records under the “speech and debate” law, but concurred in the opinion with a terse summary conclusion that in this case the Council declined to disclose a large body of records “without any individualized showing of how disclosing the information would be equivalent to questioning” that could “thereby threaten a legislator’s independence through disruption and intimidation.”

The D.C. Open Government Coalition participated in the appeal as part of its work advocating for public records access. The organization filed an amicus brief in April 2015 and board member Robert Becker took part in the oral argument before the Court of Appeals in November 2015. An earlier blog posting discussing the case, the Coalition views, and linking to the briefs is here.

The case is Kirby Vining v. Council of the District of Columbia, No. 14-cv-1322.  Proceedings that will resume in the Superior Court will be under Case No. 2014 CA 568.