D.C. Court of Appeals Warms to Coalition Arguments Against Novel “Speech and Debate” Exemption for D.C. Council

Appearing as friend of the court, the D.C. Open Government Coalition Tuesday (3) argued that a new claim of exemption from the D.C. Freedom of Information Act (FOIA) by the D.C. Council is fatally flawed. According to the Coalition, it misunderstands the law and opens a door for denials wider than available to any other agency covered by the D.C. open records law the Council has applied to itself for 15 years.

The case is Vining v. Council of the District of Columbia, a citizen’s appeal of a Superior Court ruling upholding Council use of a “speech and debate” part of D.C. Code as a FOIA exemption.  The Council invoked the unusual exemption in denying records related to the McMillan Reservoir development.

The court seemed surprised to hear the Council attorney assert a sweeping interpretation, that the law allows withholding any record “used by a Member” in legislative work.

The legal flaw, said the Coalition, is that the statutory words (like their twins in Art. I, Sec. 6 of the Constitution, applicable to Congress) are narrow and serve only to confer a kind of lawsuit immunity, shielding Council Members from being “questioned” in other forums such as in a deposition or court about thoughts and actions in the course of legislating.

The Coalition argued the new ill-defined exemption could never have been intended since it wasn't raised when the Council voted in 2000 to open its records to requests under FOIA, or since, though the legislature amended FOIA repeatedly.  Legislatures elsewhere, the Coalition research showed, are either exempt from open records laws (as is the United States Congress) or enjoy narrowly crafted exceptions.

One judge echoed Coalition arguments, probing the Council attorney to agree it made more sense to expect the Council to change the FOIA law if Members see a need for greater exemption, rather than ask the court to create by interpretation a major loophole that doesn’t seem to be in current law.  

With brisk questions to both sides, the argument lasted many times longer than the allotted minutes, so consensus among the three-judge panel may take time. 

Attorneys were Robert Becker for the Coalition; Don Padou for Kirby Vining, the requestor; and Assistant General Counsel Manasi Venkatesh for the D.C. Council. The case is No. 14-CV-1322.  Details of the Coalition brief and a link to the text are here.