After three years and a losing court fight, the D.C. Council is nearing agreement on releasing records requested by activists concerning the controversial McMillan Reservoir development deal.
The Council in 2013 originally withheld at least sixty records of Council Member Kenyan McDuffie and the Committee on Economic Development which handled the request to declare surplus the prized 25-acre public property on North Capitol Street immediately south of Michigan Avenue. Council lawyers argued they were part of legislative “speech and debate” and exempt from the District’s public records act.
The requesters sued (losing in Superior Court) but in June the District’s Court of Appeals reversed the lower court, opening the way for release of the records.
The Council had claimed the same "privilege" in numerous other requests recently. As the case was a great opportunity to clarify the law, the D.C. Open Government Coalition joined in to provide a friend-of-the-court brief in the appeal. (See earlier blog posts on the case: on the Coalition’s briefing, the November 2015 oral argument, and the June decision.)
The Coalition argued that the “speech and debate” clause in the U.S. Constitution, mirrored in similar language in D.C. law relied on by the Council, is irrelevant. It protects Members of Congress from being “questioned” about their legislative work, but a record request isn't "questioning" and in any case how the language might relate to open records has never been considered by any court, as the federal Freedom of Information Act doesn’t apply to Congress.
The Court of Appeals agreed and held the extension of the District Freedom of Information Act in 2000 to cover the Council included no special legislative privilege or exemption. "The force compelling the Council to disclose its records is none other than legislation drafted by the Council itself," said the Court, so until the Council changes the law, "in the meantime, this court must enforce the law currently on the books."
The Council and the requestor told the Superior Court in a joint filing in August the fight is over. The two sides are negotiating a settlement that will include release of all or most of the disputed records and also a payment by the Council of the costs of the successful appeal. Counsel for the requestor recently wrote the Coalition with thanks for help in winning the case.
The case is Vining v. Council of the District of Columbia, No. 2014 CA 568 (D.C. Superior Court), No. 14-CV-1322 (D.C. Court of Appeals).