Vining v. Council of the Dist. of Columbia
| Decision Date | 04 November 2014 |
| Docket Number | 2014 CA 000568 B |
| Parties | KIRBY VINING, Plaintiff, v. COUNCIL OF THE DISTRICT OF COLUMBIA, Defendant. |
| Court | D.C. Superior Court |
This matter is before the Court on two Motions: 1) Defendant Council of the District of Columbia's (the "Council") Motion for Summary Judgment ( "Defendant's Motion"), filed on March 31 2014, Plaintiff's Opposition thereto, filed May 16, 2014, and Defendant's Reply to Opposition to Motion, filed June 10, 2014; and 2) Plaintiff's Motion for Summary Judgment ("Plaintiff's Motion"), filed September 12, 2014, and Defendant's Opposition thereto, filed September 16, 2014. Upon consideration of the Motions, the Oppositions, the Reply and the entire record herein, Defendant's Motion for Summary Judgment is granted, and Plaintiff's Motion for Summary Judgment is denied.
This case involves a District of Columbia Freedom of Information Act, D.C. Code § 5-531, et seq., ("FOIA" or "DC FOIA") dispute between Plaintiff Kirby Vining and the Council, which is a branch of the government of the District of Columbia (the "District"). Plaintiff is a member and was one of the founders of the Friends of McMillan Park ("Friends"), a non-profit organization incorporated under the laws of the District. (Comp. ¶4.) On November 12, 2013, Plaintiff submitted a FOIA request to Councilmember Kenyan McDuffie, who represents Ward 5 on the Council. (Mot. 4, see also Def.'s Statement of Undisputed Material ("SMF") ¶ 2.) Ward 5 includes the McMillan Sand Filtration Site ("McMillan"), which is a District-owned property that is the subject of a major proposed redevelopment. (SMF ¶3.) Councilmember McDuffie is the chair of the Committee on Government Operations and serves on the Committee on Economic Development and the Committee on Transportation and the Environment. (Id. at ¶9; see also, Mot., Ex.2, McDuffie Aff. ¶2.) The Committee on Government Operations handles matters relating to "maintenance of public buildings, property management, including the declaration of government property as no longer required for public purposes." D.C. Council Rule 236(a). (SMF ¶9.) The Committee on Economic Development is responsible for matters related to "the disposition of property for economic development purposes." D.C. Council Rule 233(a). (SMF ¶10.) Therefore, Councilmember McDuffie, to whom the FOIA request was originally submitted, possessed much of the Council's documentation regarding McMillan and the redevelopment project.
As Chair of the Committee on Government Operations and as a member of the Committee on Economic Development, Councilmember McDuffie is responsible for considering the decision to declare McMillan as surplus and to dispose of it. (Memo. in Support of Mot. 2-3.) In addition, the Committee on Economic Development supervises the Deputy Mayor for Planning and Economic Development, which holds the contract with Vision McMillan Partners, LLC ("VMP") for the redevelopment of McMillan. (Id. at 3.) Councilmember McDuffie also was a member of a Task Force on the Prevention of Flooding in Bloomingdale and LeDroit Park, which was formed after several Ward 5 neighborhoods south of McMillan flooded on multiple occasions. (Id.; SMF ¶¶11-13.) As part of his multiple roles on the Council, CouncilmemberMcDuffie has introduced pieces of legislation related both to the flooding issue and the redevelopment project. (Memo. in Support of Mot. 3-4.)
As part of the McMillan redevelopment process, the District awarded a contract to VMP, which proposed a large mixed-used development on the McMillan site. In order for the redevelopment to occur, the District plans to dispose of McMillan via a Land Disposition Agreement ("LDA"). (SMF ¶5; Mot., Ex. 3, Ca20-217, Contract Summary 2.) The District must follow a two-step process to dispose of any real property it owns. (SMF ¶6; D.C. Code § 10-801.) First, the Council must determine that the real property is "no longer required for public purposes," pursuant to D.C. Code § 10-801(a-1). (SMF ¶7.) Second, the Council must approve a proposed resolution, submitted by the Mayor, for the disposition of the property, pursuant to D.C. Code § 10-801(b). (Id. at ¶8.) In this case, the Mayor submitted proposed contracts with VMP for approval by the Council in November 2011, June 2013 and November 2013. (Memo. in Support of Mot. 2.)
Plaintiff's FOIA request sought emails to and from Councilmember McDuffie and non-email documents related to McMillan and the McMillan redevelopment project. (SMF ¶18.) Specifically, the FOIA request sought:
(Compl. ¶23.) On December 3, 2013, the Council informed Plaintiff that it would exercise a ten-day extension in responding to the FOIA request, pursuant to D.C. Code §2-532(d). (SMF ¶19.)
The Council then granted in part and denied in part Plaintiff's FOIA request, producing some hard-copy documents, some emails and an index of the documents that the Council deemed responsive to Plaintiff's request. (Compl. ¶¶16-17; SMF ¶20.) On December 18 and 20, 2013, and January 3 and 10, 2014, the Council produced various responsive documents, including emails and non-electronic documents. (SMF ¶20; Pl.'s Opp. to Mot. at 3.) The Council retained 149 documents, claiming that they were exempt from production pursuant to D.C. Code §§ 2-534(a)(4), (a)(6) and (e), and § 1-301.42. (SMF ¶21; Pl.'s Opp. to Mot. at 4.) On January 30, 2014, Plaintiff filed the instant Complaint against the Council, asking that the Court "[o]rder the District to promptly produce copies of all responsive documents." (Compl. ¶30.)
Defendant argues in its that summary judgment is appropriate because it produced more than 1000 pages of documents to Plaintiff and properly withheld the remaining documents pursuant to either the District of Columbia's Speech or Debate statute, D.C. Code § 1-301.42, or the deliberative process privilege. (Memo. in Support of Mot. 6.) Defendant argues that the majority of the documents withheld are covered by the Speech or Debate statute and therefore are exempt from disclosure pursuant to FOIA exemptions 4 and 6. (Id. at 10.) Defendant then asserts that those documents not covered by the Speech or Debate statute are exempt pursuant to the deliberative process privilege, which is contained in FOIA exemption 4. (Id. at 13.)
In his Opposition to the Motion, Plaintiff argues that the Speech or Debate statute does not apply to FOIA because it does not constitute a "withholding statute" pursuant to D.C. Code §2-534(a)(6). (Opp. 6.) Plaintiff also argues that the Speech or Debate statute provides immunity to individual legislative members, rather than legislative bodies such as the Council, and does not permit the Council to ignore its FOIA obligations. (Id. at 11.) Finally, Plaintiff argues that, to the extent the Speech or Debate statute and FOIA are in conflict with each other,FOIA should prevail and the Speech or Debate statute should not exempt the Council from its FOIA obligations. (Id. at 23.) With respect to the documents withheld, Plaintiff argues that the Council has not sufficiently demonstrated that it properly applied the deliberative process exemption or that it met its obligation to produce those portions of the documents withheld that are segregable. (Id. at 26.)1 In Defendant's Reply to Plaintiff's Opposition, the Council reiterates that the Speech or Debate statute does constitute a withholding statute as well as an exemption under FOIA. (Reply 2.) The Council also argues that the Speech or Debate statute and FOIA do not conflict with each other, but even if they did, the Speech or Debate statute would prevail. (Id. at 8.) Finally, the Council asserts that its Vaughn index adequately demonstrates that it properly withheld the documents in dispute and that the documents withheld cannot be reasonably segregated. (Id. at 9, 11.)
In Plaintiff's Motion for Summary Judgment, he argues that summary judgment should be granted in his favor because: i) Defendant erroneously relied on the District's Speech or Debate statute as justification for withholding records pursuant to D.C. Code § 2-534(a)(6); ii) Defendant failed to demonstrate that the documents it withheld pursuant to the Speech or Debate statute were part of the legislative process; and iii) Defendant misapplied the deliberative process exemption to the documents it withheld. (Pl.'s Mot. for Summ. J. 1-2.) In Defendant's Opposition to Plaintiff's Motion, the Council relies on and incorporates the arguments made in Defendant's Motion for Summary Judgment, its Statement of Points and Authorities in Support of Defendant's Motion and its Statement of Undisputed Material Facts. (Def.'s Opp. 1.)
On October 27, 2014, this Court conducted a hearing on the parties' pending Motions. At the end of this hearing, Defendant submitted to the Court the documents it has withheld under the Speech or Debate statute and the deliberative process privilege. This Court has now conducted an in camera review of those documents, and the pending Motions are ripe for resolution.2
Under Rule 56(c), summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits" show that there is no genuine issue as to any...
To continue reading
Request your trial