Open Records

   II. EXEMPTIONS AND OTHER LEGAL LIMITATIONS

      A. Exemptions in the open records statute.

         2. Discussion of each exemption.

a. Trade Secrets and Commercial or Financial Information (D.C. Code Ann. § 2-534(a)(1)) -- Like the federal statute, the D.C. Act contains a provision exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government. The language of the D.C. Act, however, more greatly restricts what material may be withheld by an agency. See Food and Allies Services Traders, AFL-CIO v. Barry, No. 3809-88, slip. op. at 5-7 (D.C. Super. Ct. Jan. 9, 1987). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 522.

In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, an association that does not itself engage in business, and therefore cannot show harm to its competitive position, cannot claim that documents it prepared for a D.C. government agency fall within the trade secrets exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 (ordering disclosure of insurance reports prepared by the National Association of Insurance Commissioners).

Accordingly, opinions from the Mayor's office pursuant to FOIA appeals have held that:

The D.C. Act's language was based on the Judiciary Committee's reading of the D.C. Circuit's opinion in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Comm. on Judiciary Report at 8. In National Parks, however, the D.C. Circuit held that information was "confidential" within the meaning of the federal FOIA's exemption 4 not only if its disclosure would harm a person's competitive position, but also if disclosure would impair the government's interest in obtaining information in the future. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 523. In addition, National Parks left open the question whether governmental interests other than obtaining future information would justify withholding information under exemption 4. See National Parks, 498 F.2d at 770 n.17. Although this question was answered in the affirmative in Critical Mass Energy Project v. Nuclear Regulatory Comm'n, 830 F.2d 278, 282-87 (D.C. Cir. 1987), that decision would not appear to affect the interpretation of the D.C. Act.

b. Privacy (D.C. Code Ann. § 2-534(a)(2)) -- The D.C. Act exempts information of a personal nature, when disclosure would constitute a clearly unwarranted invasion of privacy. For example, the Act exempts the release of presentence reports, academic records, mental health assessments and other records pertaining to prison inmates' applications for minimum sentence reductions. See Hines v. Board of Parole, 567 A.2d 909, 913 (D.C. 1989). D.C. courts have held that when this privacy exemption does not apply and the D.C. statute authorizes disclosure of information, litigants cannot then base an invasion of privacy claim upon the government's dissemination of information. See Wolf v. Regardie, 553 A.2d 1213, 1218-19 & n.10 (D.C. 1989).

The language of the D.C. Act's privacy exemption is broader than that of federal law. Unlike the language of the federal statute, which limits its comparable exemption to personnel, medical and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, see 5 U.S.C.A. § 552(b)(6), the D.C. Act exempts all information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. However, when information collected for law enforcement purposes is at issue, this difference between the privacy exceptions of the two statutes diminishes. The federal statute exempts disclosure of investigatory records compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. See 5 U.S.C.A. § 552(b)(7)(C). The Supreme Court has interpreted this privacy exemption covering information relating to law enforcement as more expansive than the federal statute's personnel, medical and similar files privacy exemption. See United States v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989) (exempting disclosure of FBI rap sheets).

The Mayor's office (and now the Office of the Secretary) has consistently relied on the Reporters Committee rule in performing the requisite balancing test under this exemption: the individual's privacy interest in the material at issue must be balanced against the public interest in disclosing it, and this public interest must serve the "core purpose of shedding light on an agency's performance of its statutory duties." Foster v. Univ. of the District of Columbia, FOIA App. No. 92-8 (Office of the Mayor, Oct. 30, 1995) (refusing to release the personnel records and curriculum vitae of a U.D.C. employee because disclosure would impinge upon the employee's privacy rights and serve no "core" public purpose); see also In re Appeal of The Washington Post Co., Matter No. 01-170008, 48 D.C. Reg. 8629 (Office of the Secretary, Sept. 7, 2001) (holding that the privacy interests of students and teachers under investigation for the consumption of alcohol substantially outweighs the public interest in their identifying information); Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (holding that no "core" public purpose is served when individual seeks police officers' personnel records for use in a civil suit against officers); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (refusing to disclose address of district resident who has not otherwise made her address and telephone number public, where plaintiff wanted address for use in a civil lawsuit); In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications, and work experiences of successful job applicants, but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references, about successful applicants or any information regarding unsuccessful job applicants).

In accordance with other jurisprudence pertaining to corporations, the Mayor's office has ruled that corporations have no privacy rights under exemption (a)(2). Washington Post Co. v. Metro. Police Dep't, FOIA App. No. 92-5 (Sept. 24, 1993) (refusing to disclose on privacy grounds names and addresses of registered gun owners, but agreeing to release information regarding licensed gun dealers because corporations have no privacy interests).

Information required to be made public versus the privacy exemption: D.C. Code Section 2-536, discussed infra, specifically makes certain information public, but does so "without limiting the meaning of other sections of this subchapter." Despite what appear to be specific and mandatory disclosure requirements under § 2-536, the Mayor's office has construed this limiting language to mean that if the privacy exemption is implicated by a record that falls within § 2-536, the record can be withheld. Thus, in the view of the Mayor's office, the names of members of the police department, although required to be made public under § 2-536, do not have to be released because "by virtue of the nature of their work, MPD personnel have substantial privacy interests that militate against public revelation of their names." Mike R. Atraqchi v. Metro. Police Dep't, FOIA App. No. 94-17 (Office of the Mayor, July 28, 1994).

c. Investigatory and Law Enforcement Records (D.C. Code Ann. § 2-534(a)(3)) -- Like the federal law, the D.C. Act exempts certain investigatory records compiled for law enforcement purposes (including the records of Council investigations). The exemption allows nondisclosure when disclosure would interfere with enforcement proceedings or Council investigations, deprive a person of a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigation techniques or endanger the lives of law enforcement officers. § 2-534(a)(3). The exemption applies only to investigatory records that are compiled in the course of specific investigations and that focus on specific individuals and acts. See Barry v. Washington Post Co., 529 A.2d at 321-22. Such records are exempt, however, only if their release would also result in the interference with enforcement proceedings or cause one of the other results described in § 2-534(a)(3). See In re Appeal of Ernest Middleton, Matter No. 01-171746, 48 D.C. Reg. 9022 (Office of the Secretary, Sept. 19, 2001); In re Appeal of Mark W. Howes, Esq., Matter No. 00-10587, 48 D.C. Reg. 7827 (Office of the Secretary, Aug. 13, 2001). The D.C. Act "seeks to strike a balance for maximum disclosure even of law enforcement information, but not in cases where the information would endanger people, interfere with due process or severely hamper law enforcement effort." Comm. on Judiciary Report, at 7. The Mayor's office has ruled that investigatory records in a 6-year-old murder case are exempt from disclosure if charges and criminal litigation are still possibilities. Glenn A. Stanko, Esq. v. Metro. Police Dep't, FOIA App. No. 92-24 (Feb. 24, 1995).

The Mayor's office appears to be highly deferential to departments or agencies that invoke this exemption. The Office has held that: the privacy interests of police and the crime victim's family militate against releasing a videotaped murder confession that was never admitted into evidence against the accused when the tape was sought by a news reporter, In re Appeal of Molly Pauker, Esq., (unnumbered FOIA appeal) (Office of the Mayor, Nov. 3, 1989). The Office has also held that disclosing a police officer's records regarding an investigation into her alleged drug abuse, when no disciplinary charges were brought and absent allegations that the investigation was mishandled, would serve no public purpose, Pretext Services Inc. v. Metro. Police Dep't, FOIA App. No. 92-10 (Office of the Mayor, March 8, 1995).

It should be noted that another D.C. statute, D.C. Code Ann. § 5-113.06, provides that all complaints and other specific police records shall be open for inspection. See also § 2-534(c) ("This section shall not operate to permit nondisclosure of information of which disclosure is authorized or mandated by other law."). Therefore, the names of some 70 police officers and information about criminal charges filed against them were required to be disclosed under § 5-113.06 [formerly D.C. Code § 4-135]. Washington Post v. Metro. Police Dep't, FOIA App. No. 93-15 (Office of the Mayor, March 11, 1994).

d. Interagency Memos and Letters (D.C. Code Ann. § 2-534(a)(4)) -- This exemption is virtually identical to the exemption in the federal statute, exempting inter-agency and intra-agency memorandums or letters (including memorandums or letters generated or received by the staff or members of the Council), which would not be available by law to a party in litigation with a public body. Compare § 2-534(a)(4) with 5 U.S.C.A. § 552(b)(5). As a matter of policy, reports and analyses prepared by an organization outside the government, even if they are used in an agency's deliberative process, do not fall within the exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 ("To hold otherwise would be to rule that the independently initiated, prepared and funded reports of a private organization . . . which that organization desires to withhold from public scrutiny and discussion but to have used by a governmental agency as the basis for important public policy decisions, would be immunized from disclosure . . . .").

The D.C. Act expressly provides that the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege are incorporated into the exemption in § 2-534(a)(4). D.C. Code Ann. § 2-534(e). Prior to this language being added to the statute, the Mayor's office and the Office of the Secretary had already relied on the common law deliberative process privilege to find documents are exempt from disclosure under § 2-534(a)(4) because they would not be available to a party in litigation with the agency. Shaw Coalition Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994) (withholding documents related to an executive decision about real estate development); Alonzo L. Williams v. Office of Superintendent, FOIA App. No. 95-10 (Office of the Mayor, Aug. 11, 1995) (withholding memoranda from a hearing examiner whose recommendation was rejected by the Superintendent of Schools, the final arbiter of the decision at issue); see also In re Appeal of the ACLU (National Prison Project), Matter No. 00-118630, 48 D.C. Reg. 2407 (Office of the Secretary, Mar. 6, 2001) (remanding case to D.C. Department of Corrections to determine whether requested memorandum is of a "predecisional" and "deliberative" character).

e. Test Questions and Answers (D.C. Code Ann. § 2-534(a)(5)) -- This exemption does not appear in the federal act. It exempts test questions and answers to be used in future license, employment or academic examinations. It does not exempt previously administered exams or answers thereto.

However, if information regarding an exam -- for example, a job applicants' test answers and general scoring protocols -- would "compromise the legitimacy and fairness of an examination process by revealing test answers to be used in future exams," such information will fall within this exemption. Francesca A. Clark v. Metro. Police Dep't, FOIA App. No. 94-43 (Office of the Mayor, Sept. 29, 1995).

f. Information Exempted by Other Statutes (D.C. Code Ann. § 2-534(a)(6)) -- This exemption is identical to the federal exemption. Compare § 2-534(a)(6) with 5 U.S.C.A. § 552(b)(3). It requires that information be specifically exempted from disclosure by another statute. Such exemption will not be inferred. Barry v. Washington Post Co., 529 A.2d at 322. The exemption does not apply to certain ordinances, or other laws that are not "statutes." Newspapers Inc., 546 A.2d at 997-1001; see also In re Appeal of Grayson & Assocs., P.C., Matter No. 00-00240, 47 D.C. Reg. 4585 (Office of the Secretary, May 16, 2000) (Section 42-231 of the D.C. Unclaimed Property Act qualifies as a nondisclosure statute under § 2-534(a)(6)); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (federal regulations are not statutes within the meaning of the Act); In re Appeal of Clifton Jackson for Release of Inheritance Tax Return Form FR-19, FOIA App. No. 90-7 (Office of the Mayor, May 19, 1991) (Inheritance and Estate Tax Revision Act, D.C. Code Ann. § 45-3719(a) & (c), is a statute within the meaning of the act, requiring nondisclosure of certain tax records).

g. Information Exempted By Federal Law Because Of National Defense Or Foreign Policy Concerns (D.C. Code Ann. § 2-534(a)(7)) -- This exemption is virtually identical to the exemption in the federal act. Compare D.C. Code Ann. § 2-534(a)(7) with 5 U.S.C.A. § 552(b)(1)(A).

h. Information Gained in Civil Antitrust Actions (D.C. Code Ann. § 2-534(a)(8)) -- This provision does not appear in the federal act. It exempts certain information gained by the D.C. Government during discovery or investigations carried out pursuant to local antitrust laws, D.C. Code Ann. § 28-4505.

i. Information Disclosed In Arson Investigations (D.C. Code Ann. § 2-534(a)(9)) -- This exemption also does not appear in the federal act. It exempts information gained pursuant to local arson reporting laws, D.C. Code Ann. § 5-417.

j. Specific Response Plans and Vulnerability Assessments (D.C. Code Ann. § 2-534(a)(10)) -- The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism.

k. Information Submitted to Business License Center (D.C. Code Ann. § 2-534(a)(11)) -- Information submitted to the Business License Center within the Department of Consumer and Regulatory Affairs, such as applications for business licenses, are exempted by the D.C. Act. A person, however, may be provided with information submitted to the Business License Center for one registrant based upon the submission of either the name or address of the registrant; persons are limited to one such request per day. Federal Employer Identification numbers and Social Security numbers shall not be released except if requested by a law enforcement agency or directed by court order.

l. Information That Would Disclose the Identity of a Whistleblower (D.C. Code Ann. § 2-534(a)(12)) -- Information, the disclosure of which would reveal the name of an employee providing information under the whistleblower protection provisions of the D.C. Code, § 1-615.51 et seq. and § 2-223.01 et seq., is exempt unless the name of the employee is already known to the public.

m. Vital Records (D.C. Code Ann. § 2-534(d)) -- This exemption is unique to the D.C. Act. It provides that the provisions of the D.C. Act do not apply to the Vital Records Act of 1981, D.C. Code Ann. § 7-201. Unlike other exemptions, this exemption is not discretionary. Vital records include certificates or reports on birth, death, marriage, divorce, annulment and data related thereto. § 7-201(15). The Vital Records Act prohibits disclosure of those records except as provided by that chapter. § 7-219(a). Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right. The Vital Records Act contains criminal penalties for violations of its provisions. § 7-225.

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