District of Columbia v. Terris, Pravlik & Millian, LLP

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 21-CV-0543

DISTRICT OF COLUMBIA, APPELLANT,

TERRIS, PRAVLIK & MILLIAN, LLP, APPELLEE.

Appeal from the Superior Court of the
District of Columbia
(2020-CA-003087-B)

(Hon. Heidi M. Pasichow, Motions Judge)

(Argued September 28, 2022 Decided June 5, 2025)

Caroline S. Van Zile, Solicitor General, with whom Karl A. Racine, Attorney
General for the District of Columbia at the time the brief was filed, Loren L. AliKhan,
Solicitor General at the time the brief was filed, and Ashwin P. Phatak, Deputy
Solicitor General, and Richard S. Love, Senior Assistant Attorney General were on
the brief, for appellant.

Todd A. Gluckman, with whom Kathleen L. Millian and Nicholas Soares were
on the brief, for appellee.

Adina H. Rosenbaum, with whom Allison M. Zieve was on the brief as amici
curiae on behalf of D.C. Open Government Coalition, American Civil Liberties
Union of the District of Columbia, D.C. Fiscal Policy Institute, Public Citizen,
Reporters Committee for Freedom of the Press, and Washington, D.C. Professional
Chapter of the Society of Professional Journalists.
Daniel P. Golden, with whom Nicole L. Streeter and Wei Guo were on the
brief as amicus curiae on behalf of the Council of the District of Columbia.

Before BLACKBURNE-RIGSBY, Chief Judge, and BECKWITH and HOWARD,
Associate Judges.

HOWARD, Associate Judge: “The generation that made the

nation . . . committed itself to the principle that a democracy cannot function unless

the people are permitted to know what their government is up to.” U.S. Dep’t of

Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 772-73 (1989) (emphasis

in original) (quoting EPA v. Mink, 410 U.S. 73, 80 (1973) (Douglas, J., dissenting));

see also Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002)

(“Democracies die behind closed doors.”). That principle has informed decades of

case law under the Federal Freedom of Information Act and informs our case law

under the District of Columbia Freedom of Information Act (D.C. FOIA).

This case concerns the Mayor’s disclosure and publication obligations under

the D.C. FOIA, primarily with respect to agency budget-request documents. The

Mayor appeals a Superior Court order compelling her to produce certain agency

budget-request documents requested by plaintiff/appellee Terris, Pravlik & Millian,

LLP (TPM), a public interest law firm, pursuant to D.C. Code § 2-532, and to post

those (and other) documents online as required by D.C. Code § 2-536(b) (often
2

referred to as the “publication provision”). 1 On appeal, the Mayor argues that she is

entitled to withhold the budget-request documents due to executive privilege

afforded by the separation of powers doctrine. She further argues that TPM lacked

standing to seek enforcement of the publication provision; that the publication

provision is not enforceable via a private right of action; and that, even if disclosure

of the requested documents is required, the trial court exceeded its authority by

requiring disclosure of prospective documents.

For the reasons that follow, we reject the Mayor’s invocation of the executive

privilege arising out of the separation of powers doctrine here, but refrain from

considering whether to recognize executive privilege in other contexts. We further

conclude that the trial court did not err in ordering disclosure to TPM of the requested

budget documents or in ordering online publication of those documents for fiscal

years 2019 to the present. However, we vacate and remand the portions of the order

requiring publication of documents under section 2-536 that did not include the

budget-request documents that TPM sought.

1
We note that TPM named the District of Columbia as the defendant in its
complaint, and the District of Columbia remains the named appellant on appeal.
However, because the Mayor and amicus curiae the Council of the District of
Columbia (the Council) have taken different positions in the Superior Court and in
this appeal, we shall refer to the appellant as the Mayor.
3

I. Factual and Procedural Background

TPM serves as counsel for the plaintiff class of preschool-aged children with

disabilities in D.L. v. District of Columbia, No. 05-CV-1437 (RCL) (D.D.C.). In that

capacity, TPM is charged with monitoring the District of Columbia’s compliance

with the injunction entered in that case, which requires the District to ensure that the

plaintiff class members receive the special education and related services guaranteed

to them under federal law and District of Columbia regulations. To that end, TPM

searched online for agency budget-request documents transmitted to the Mayor and

her Chief Financial Officer (CFO) by the D.C. Public Schools (DCPS) and the Office

of the State Superintendent of Education (OSSE).

Unable to find those documents online, TPM submitted a D.C. FOIA request

on October 18, 2019, to the Executive Office of the Mayor. It sought: “(1) actual

copies—not summaries—of [DCPS’s and OSSE’s] budget requests for fiscal year

2019”; “(2) any similar documentation describing in detail the agencies’ budget

needs or requests for fiscal year 2019”; and “(3) information identifying

corresponding totals from the final approved budget.” TPM expressed that it was

specifically interested in “funding for special education oversight, policy

development and compliance issues impacting 3-5-year-olds,” and that it did “not

object to the production being narrowed accordingly.” TPM also asserted that the
4

information it requested “should be accessible to the public” under D.C. Code

§ 2-536(a)(6A). In December 2019, TPM was provided with a copy of OSSE’s final

budget that the Mayor proposed to the Council of the District of Columbia for fiscal

year 2019, but OSSE’s FOIA officer refused to produce its draft submission to the

Mayor because it was “deliberative” and thus “privileged.” TPM appealed this

decision to the Office of the Mayor.

After failed attempts to receive a response from the Office of the Mayor on

the status of its appeal, TPM filed a complaint in the Superior Court seeking

declaratory judgment and injunctive relief. TPM sought production of the

“requested documents to TPM for fiscal year 2019 and all subsequent years until this

case is resolved,” and online publication of “all documents as required under D.C.

Code §§ 2-536(a)(6A) and 2-536(b).” The Mayor moved to dismiss, TPM opposed,

and the Council filed an amicus curiae memorandum in support of TPM. After the

trial court denied the Mayor’s motion to dismiss, TPM moved for summary

judgment, and the Mayor filed a cross-motion for summary judgment. The Superior

Court granted TPM’s motion for summary judgment, ordering that the Mayor

produce not only the specific budget-request documents requested by TPM but also

a broader set of documents it asked to be published (the required documents pursuant
5

to D.C. Code § 2-536 2). The court stayed enforcement of its order pending

resolution of the Mayor’s appeal to this court.

II. Legal Background

A. D.C.’s Annual Budget Process

The District of Columbia Charter, D.C. Code §§ 1-204.01 to 1-204.115,

enacted as part of the Home Rule Act, D.C. Code §§ 1-201.01 to 1-207.71, vests the

executive power of the District of Columbia “in the Mayor who shall be the chief

executive officer of the District government.” D.C. Code § 1-204.22. The Charter

directs the Mayor to “prepare and submit to the Council each year, and make

available to the public, an annual budget for the District of Columbia.” D.C. Code

§ 1-204.42(a).

During the budget development process, “the Mayor solicits budget

information, recommendations, and advice” from District of Columbia

administrative agencies based on the Mayor’s policy and program priorities for the

2
This statutory section lists which “categories of information are specifically
made public information, and do not require a written request for information . . .”
including public salary information, administrative staff and manuals, decisions in
adjudicated cases, and certain budgetary information “transmitt[ed] to the Office of
Budget and Planning during budget development.” See D.C. Code § 2-536.
6

coming year. Each agency director then submits a proposed budget to the Mayor

through the Office of Budget and Planning (OBP) in the Office of the Chief Financial

Officer (OCFO). This begins what OBP describes as “an iterative process through

which the Office of the Mayor, OCFO and District agencies deliberate and make

changes to each agency’s proposed submission.” “The Mayor then uses the advice,

recommendations, and information that she receives from all District agencies to

create her annual budget proposal submission to the [] Council.” 3

Upon receipt of the Mayor’s proposed budget, the Council holds budget

hearings and may accept, reject, or modify any or all of the Mayor’s

recommendations. See D.C. Code § 1-204.46(a). Within seventy calendar days of

receipt of the proposed budget, the Council adopts by act “the annual budget for the

District of Columbia government.” D.C. Code § 1-204.46(a). 4

3
The Mayor and OCFO must supplement the Mayor’s budget proposal “by
submitting to the Council simultaneously with the proposed budget submission[]
‘[a]ctual copies . . . of all agency budget enhancement requests’ and ‘[a]ny similar
documentation describing in detail agencies’ budget needs or requests.’” D.C. Code
§ 47-318.05a.

4
The Mayor “shall have power to disapprove any items or provisions, or both”
of the budget adopted by the Council. D.C. Code § 1-204.04(f). Any such
7

B. The D.C. Freedom of Information Act

The D.C. FOIA governs the disclosure of District of Columbia government

documents to the public. See D.C. Code §§ 2-531 to 2-540. Open records statutes

like the D.C. FOIA facilitate “public scrutiny and an informed citizenry,” which “are

vital to the functioning of a democratic society.” Animal Legal Def. Fund v. U.S.

Dep’t of Agric., 935 F.3d 858, 861 (9th Cir. 2019) (internal quotation marks and

citations omitted). Provisions of the D.C. FOIA must “be construed with the view

toward expansion of public access and the minimization of costs and time delays to

persons requesting information.” Fraternal Ord. of Police v. District of Columbia,

79 A.3d 347, 354 (D.C. 2013). “Because many provisions of the D.C. FOIA mirror

provisions in the federal Freedom of Information Act, we have found case law

interpreting the federal FOIA to be ‘instructive authority with respect to our own

Act.’” Id. (quoting Doe v. District of Columbia Metro. Police Dep’t, 948 A.2d 1210,

1220 (D.C. 2008)).

The statute contains three interrelated provisions that are relevant here:

(1) D.C. Code § 2-534, describing categories of documents that are exempt from

disapproval by the Mayor can be overridden by the Council with a two-thirds vote.
Id.
8

disclosure; (2) D.C. Code § 2-536(a), describing categories of information or

documents that “are specifically made public and do not require a written request”;

and (3) D.C. Code § 2-537(a)(2), authorizing a “person seeking disclosure [to] bring

suit in the Superior Court . . . to enjoin the public body from withholding the record

and to compel the production of the requested record.” We provide background on

the first two sections, reserving discussion on the third for our analysis below.

Section 2-534 renders several categories of documents exempt from

disclosure, such as “[i]nter-agency or 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 other than a public body

in litigation with the public body.” D.C. Code § 2-534(a)(4). This court has

recognized that “[e]xplicitly encompassed by th[e] exemption [in § 2-534(a)(4)] are

documents within the deliberative process privilege.” Fraternal Ord. of Police, 79

A.3d at 354; see also D.C. Code § 2-534(e) (“The deliberative process privilege, the

attorney work-product privilege, and the attorney-client privilege are incorporated

under the inter-agency memoranda exemption listed in subsection (a)(4) of this

section[.]”).

Section 2-536(a) of the D.C. FOIA makes many types of information public

information that “must be disclosed even in the absence of a written request.” Fiscal
9

Year 2023 Budget Support Act of 2022, D.C. Council, Report on Bill 24-714 at 9

(May 10, 2022). In 2004, the Council added a new paragraph to make public

Budget requests, submissions, and reports available
electronically that agencies, boards, and commissions
transmit to the Office of [ ] Budget and Planning during
the budget development process, as well as reports on
budget implementation and execution prepared by the
Office of the Chief Financial Officer, including baseline
budget submissions and appeals, financial status reports,
and strategic plans and performance-based budget
submissions[.]

D.C. Code § 2-536(a)(6A) (hereinafter, Paragraph 6A). The Council has written that

“[P]aragraph 6A has always required that the Mayor make these documents

public[.]” Report on Bill 24-714 at 9.

In 2022, the Council amended 5 the D.C. FOIA in response to this litigation

and what it called the Mayor’s “consistently [failing] to make public” the documents

5
The amendments added two relevant subsections to D.C. Code § 2-536.
Subsection (d)(1) provides that “[n]otwithstanding any other provision of law, no
document or information described in [Paragraph 6A] of this section that was created
on or after December 7, 2004, shall be exempt from disclosure pursuant to
[§ 2-]204(a)(4) and (e).” Subsection (d)(2) provides that

“[i]n addition to making such document or information
public information pursuant to subsection (a) of this
section, a public body shall provide any document or
10

under Paragraph 6A. Id. As the Mayor acknowledged in her supplemental brief,

these amendments rendered the deliberative process privilege inapplicable to the

agency budget-request documents described in Paragraph 6A (and that TPM sought

through its D.C. FOIA request focused on OSSE and DCPS).

III. Standard of Review

“We review a grant of summary judgment de novo.” Wong v. District of

Columbia, 314 A.3d 1236, 1240-41 (D.C. 2024); see also Fraternal Ord. of Police,

79 A.3d at 353 (stating same). “The grant or denial of injunctive relief is

discretionary with the trial court and will be reversed on appeal only when that

discretion has been abused.” Albergottie v. James, 470 A.2d 266, 270 (D.C. 1983).

information described in [Paragraph 6A] of this section
that was created on or after December 7, 2004, to a person
who has requested to inspect or copy it pursuant to [D.C.
Code § 2-202], regardless of the date on which such
request may have been made.”

Agency Budget Request Freedom of Information Clarification Amendment Act of
2022, § 1042(b), D.C. Law 24-167, 69 D.C. Reg. 9223, 9229 (July 29, 2022).
11

IV. Analysis

We first discuss the Mayor’s separation of powers arguments, which relate to

both TPM’s request for documents and its request for online publication of “all

documents as required under D.C. Code § 2-536(a)(6A) and 2-536(b),” followed by

the Mayor’s arguments specific to the latter request.

A. Whether the Separation of Powers Doctrine Exempts the Agency
Budget-Request Documents from Disclosure

As a result of the 2022 amendment, the Mayor no longer contends that “the

text of D.C. FOIA requires neither production nor publication of the agency

preliminary budget documents at issue in this case.” The Mayor, however, continues

to assert that the budget-request documents at issue are “protected by the executive

communications privilege inherent in the constitutional separation of powers.” We

disagree and conclude that no such privilege or exemption from disclosure applies

to the documents involved in this case. To explain, we (1) review how courts have

evaluated when executive privilege implicates separation of powers concerns, before

turning to (2) whether the Mayor has exclusive authority over the budget and

(3) whether Paragraph 6A otherwise interferes with the Mayor’s functions in ways

that implicate separation of powers concerns.
12

1. Applicable Separation of Powers Principles

The executive privilege at issue here derives from separation of powers

principles. “This court has long acknowledged that the separation-of-powers

principles ‘as are applicable to the three branches of government at the federal level’

likewise ‘govern the exercise of [each branch’s powers] in the District Charter.’”

Fraternal Ord. of Police Metro. Police Dep’t Lab. Comm. v. District of Columbia,

290 A.3d 29, 41 (D.C. 2023) (alteration in original) (quoting Wilson v. Kelly, 615

A.2d 229, 231 (D.C. 1992)) (internal brackets omitted). Because the three branches

of government have “a degree of overlapping responsibility,” “[t]he separation of

powers is not implicated where one branch of government merely exercises power

in an area in which there is an overlap of responsibility.” Id. (quoting Mistretta v.

United States, 488 U.S. 361, 381 (1989)). Rather, a party alleging a separation of

powers violation has a “difficult burden” to show that an action results in “the whole

power of one department being exercised by the same hands which possess the whole

power of another department.” Id. (quoting Mistretta, 488 U.S. at 380-81 (alteration

in original) (quoting THE FEDERALIST NO. 47, at 325-26 (James Madison) (J.

Cooke ed., 1961))); see also District of Columbia v. Fitzgerald, 953 A.2d 288, 292

(D.C. 2008) (quoting same), opinion amended on denial of reh’g, 964 A.2d 1281

(D.C. 2009).
13

At the federal level, the “supremacy of the Executive Branch within its

assigned area of constitutional responsibilities,” then, leads to an “implied executive

privilege.” Trump v. Thompson, 20 F.4th 10, 26 (D.C. Cir. 2021) (quoting Nixon v.

Adm’r of Gen. Servs., 433 U.S. 425, 447 (1977)). “That privilege allows a President

to protect from disclosure ‘documents or other materials that reflect presidential

[decision making] and deliberations and that the President believes should remain

confidential.’” Id. at 25 (quoting In re Sealed Case, 121 F.3d 729, 744 (D.C. Cir.

1997)). “Because ‘a President and those who assist him must be free to explore

alternatives in the process of shaping polices and making decisions and to do so in a

way many would be unwilling to express except privately,’ the privilege ‘safeguards

the public interest in candid, confidential deliberations within the Executive

Branch.’” Thompson, 20 F.4th at 26 (quoting United States v. Nixon, 418 U.S. 683,

708 (1974); Trump v. Mazars USA, LLP, 591 U.S. 848, 864 (2020)).

As the Mayor points out, a number of jurisdictions have recognized a similar

executive communications privilege as to their local executive. See, e.g., Killington,

Ltd. v. Lash, 572 A.2d 1368, 1373 (Vt. 1990) (“Federal and state courts have

accorded to the chief executive of the nation or of a state a privilege which is

‘fundamental to the operation of Government and inextricably rooted in the

separation of powers.’”) (quoting Nixon, 418 U.S. at 707), overruled on other

grounds by Energy Pol’y Advoc. v. Att’y Gen.’s Off., 308 A.3d 456 (Vt. 2023); Guy
14

v. Jud. Nominating Comm’n, 659 A.2d 777, 783 (Del. Super. Ct. 1995) (observing

that state courts considering the existence of an executive privilege “have been

nearly unanimous in holding that a governor, in the discharge of official duties, is

entitled to an executive privilege to protect the governor’s deliberative and mental

processes”). While an executive communications privilege is “inextricably rooted

in the separation of powers under the Constitution,” Nixon, 418 U.S. at 708, it is “not

mentioned in the text of the Constitution,” and is “qualified,” not “absolute.”

Thompson, 20 F.4th at 26.

We have not, however, had occasion to decide whether the Mayor enjoys an

executive communications privilege and, if so, what the scope of that privilege may

be. We need not decide either question in this case, where we disagree with the

Mayor about the two separation of powers concerns that she raises. 6

6
In declining to discuss the scope of an executive communications privilege,
we make no holding as to the trial court’s conclusion that the Mayor failed to meet
her burden to show that the privilege could apply to agencies outside the Office of
the Mayor involved in the budgetary process. See Citizens for Resp. & Ethics in
Wash. v. U.S. Dep’t of Homeland Sec., 592 F. Supp. 2d 111, 118 (D.D.C. 2009)
(holding that the executive communications privilege should “apply only to
communications authored or solicited and received by those members of an
immediate White House adviser’s staff who have broad and significant
responsibility for investigating and formulating the advice to be given the President”
because only those communications are “close enough to the President . . . to pose a
risk to the candor of his advis[o]rs.”).
15

2. Whether the Mayor Has Exclusive Authority Over the
Budget

The Mayor argues that “the Mayor’s duty under the Charter to prepare and

submit an annual budget to the Council is explicit and exclusive,” but we disagree.

As this court has said, “[t]he separation of powers is not implicated where one branch

of government merely exercises power in an area in which there is an overlap of

responsibility.” Fraternal Ord. of Police Metro. Police Dep’t Lab. Comm., 290 A.3d

at 41 (internal quotation marks and brackets omitted). The D.C. Charter provisions

establishing the District’s budgetary process create such an overlap. As described

above, the Mayor must present a proposed budget to the Council, and the Council

must act within seventy calendar days of its receipt. D.C. Code § 1-204.46(a).

Following initial presentation of the budget, the Mayor can make further

modifications, subject to the Council’s two-thirds vote override. D.C. Code

§ 1-204.04(f). These provisions of the D.C. Charter make clear that the budget is

not an exclusive function of either the executive or the legislative branch. Rather,

the procedural back-and-forth in these provisions shows that authority over the

budgetary process is vested in both the Mayor and the Council. The Mayor initiates

the budgetary process but, as we have stated, it is “the Council, not the Mayor, [that

has] ultimate authority (subject to congressional review) over the District’s annual

budget.” Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections & Ethics, 441
16

A.2d 889, 906 n.31 (D.C. 1981). Unlike federal FOIA cases that have allowed

withholding of documents under executive privilege because those documents have

concerned powers within the exclusive purview of the Executive Branch, the Mayor

does not have an exclusive function here that Paragraph 6A could implicate. See,

e.g., Loving v. Dep’t of Def., 550 F.3d 32, 38-40 (D.C. Cir. 2008) (holding that

executive privilege covered recommendations from Army and Defense Secretaries

and Judge Advocate General to President advising him in his statutorily required

review of Army private’s death sentence because the recommendations “‘directly

involve[d]’ the President and their confidentiality ‘ensure[s] that presidential

decision-making is of the highest caliber, informed by honest advice and full

knowledge.”’ (quoting In re Sealed Case, 121 F.3d at 750) (alterations in original).

3. Whether Paragraph 6A Interferes with the Mayor’s
Functions

The Mayor further argues that forcing her to reveal her preliminary budget

documents pursuant to Paragraph 6A interferes with her executive functions.

Specifically, she contends, it impinges on her prerogative, as the Mayor, to “fire the

opening [budget] shot” that will have an “anchoring effect” on the budget process,

limiting her in submitting the annual budget of her choosing. For the reasons that

follow, we disagree that Paragraph 6A impermissibly limits the Mayor.
17

Under the separation of powers doctrine, the “encroachment or

aggrandizement of one branch of government at the expense of the other . . . does

not occur where, under a particular measure, the responsibility conferred on a branch

of government by [the legislature] is left essentially intact.” Fraternal Ord. of Police

Metro. Police Dep’t Lab. Comm., 290 A.3d at 41 (internal quotation marks, citations,

and brackets omitted); see, e.g., id. at 41-42 (dismissing suit against Council

legislation that removed some mayoral discretion over releases of police body-worn

camera footage since legislation did not remove “all of the Mayor’s discretion and

power over the release of BWC footage and the identities of officers.”) (emphasis in

original); Hessey v. Burden, 584 A.2d 1, 6 (D.C. 1990) (upholding creation by ballot

initiative of an Office of Public Advocate for Assessments and Taxation since

establishment of office would not “impermissibly burden[]” or “unduly interfere[]

with” the Mayor’s responsibility for tax assessments).

Here, we do not see how the Mayor’s responsibility to develop and submit a

budget is encroached upon by requiring the Mayor to disclose initial agency budget-

submission documents. First, that budgetary responsibility appears limited by the

Home Rule Act. As the Council points out in its amicus brief, the D.C. Charter

requires the Mayor’s proposed budget to include an analysis that “consider[s] the

cost and benefits of alternatives and the rationale behind action recommended or

adopted[.]” D.C. Code § 1-204.42(a)(6). By requiring this analysis, the language
18

itself seems to require the Mayor to shed light on agencies’ budget

recommendations, the merits of those recommendations, and the rationales behind

adopting or not adopting those recommendations. (It also seems like that light would

reach to the types of documents Paragraph 6A requires, like “reports on budget

implementation and execution prepared by the Office of the Chief Financial Officer,

including baseline budget submissions and appeals, financial status reports, and

strategic plans and performance-based budget submissions[.]”).

Second, we do not see how those disclosures stop the Mayor from being free

“to submit to the Council the annual budget of her choosing.” Agency directors

submit their proposed budgets “based on the Mayor’s directions.” Even with the

disclosures that Paragraph 6A requires, the Mayor remains free to set those initial

parameters and free to reject or modify the agencies’ budget recommendations to

promote her policy priorities through the budget she submits to the Council.

Paragraph 6A thus does not “impermissibly burden or unduly interfere with” the

Mayor’s exercise of her executive-branch responsibilities. 7 Fraternal Ord. of Police

Metro. Police Dep’t Lab. Comm., 290 A.3d at 36.

7
The Mayor analogizes her argument to the reasoning set forth in a 1982
federal Office of Legal Counsel (OLC) opinion mentioned during oral argument.
19

The Mayor concedes that the 2022 D.C. FOIA amendment means that the

budget information described in Paragraph 6A is “no longer exempt from DC

FOIA’s disclosure requirement under the deliberative process privilege,” but we take

the Mayor to still press her remaining arguments that an executive communications

privilege applies. One of the Mayor’s arguments is that “knowledge that

subordinates’ assessments and recommendations [can] be disclosed in the

future . . . [would] chill[] an executive’s ability to obtain candid assessments and

recommendations.” As an initial matter, the Mayor does not explain how this

That opinion reasons that since separation of powers requires the president to have
ultimate control over subordinate officials, including the right to supervise and
review their work, disclosure of “unreviewed [agency] recommendations” “would
disrupt the normal . . . decision-making process and interfere with the President’s
ability to supervise[.]” 6 Op. O.L.C. 632, 640 (1982). The opinion concludes that
such disruption should be permitted only where there is a “specific or compelling
congressional need for the information[.]” Id. at 632. It further concludes that
Congress’s desire to “obtain more information to assist it in carrying out its review
of the budget” is not such a specific or compelling need. Id. at 641-42.

We find the analogy unpersuasive. The federal budget process, as described
at 31 U.S.C. § 1105, does not have a similar provision to the D.C. Charter provision
requiring the Mayor to disclose “the cost and benefits of alternatives and the
rationale behind [the particular] action recommended.” D.C. Code
§ 1-204.42(a)(6)—a requirement that seems to necessarily entail disclosure of non-
adopted proposals. We are also skeptical of the OLC opinion’s conclusion that the
Council, in exercising its ultimate authority over the District’s budget, has no
compelling need to know agency directors’ assessments of the budget needs of their
agencies.
20

chilling effect would interfere with her budgetary duties. After all, the documents

are not authored by her close advisors, but rather by District agencies and OCFO.

See D.C. Code § 2-536(a)(6A) (including “[b]udget requests, submissions, and

reports . . . that agencies, boards, and commissions transmit [to OBP] . . . , as well

as reports on budget implementation and execution prepared by the Office of the

Chief Financial Officer[.]” (emphasis added)); Loving, 550 F.3d at 38-40

(concluding that documents prepared by close advisors to facilitate a responsibility

in the executive’s purview are covered by the executive communication privilege).

Nor do we perceive such a chilling effect based on this record. OBP Director

Jennifer Reed stated “[e]ach year in September or October, the Mayor solicits budget

information, recommendations, and advice from her agencies for the upcoming

fiscal year.” Based on the information provided by Ms. Reed, TPM’s October 2019

request came, as the trial court reasoned, “a full year after the initial solicitation for

information and at least six months after the Mayor submits her budget proposal to

the Council.” We agree with the trial court that a request for budget information

“made after budget deliberations occurred, and not during the Mayor’s discussions

with agency leaders and the CFO, and subsequent submission to the Council, does

not interfere with the Mayor’s . . . ability to obtain candid and informed opinions

from her advisors [in real time].”
21

This conclusion makes particular sense when we consider that, despite the

Mayor’s use of the word “preliminary,” the budget-request documents at issue were

not internal, pre-submission-to-the-Mayor agency communications or drafts. The

parties appear to agree that TPM’s requested budget documents are, as described in

the declaration of Eric M. Cannady, the Deputy Chief Financial Officer for OBP,

“documents that are transmitted to the OCFO in the earliest stages of the budget

process and include financial requests, along with the underlying policy

recommendations and rationales from senior agency officials.” In other words, the

requested documents are “initial” budget-request documents that are officially

transmitted beyond the executive, but not documents that reflect the “iterative

process” 8 involving back-and-forth with OCFO and the Mayor, which occurs after.

8
As Ms. Reed explained,

Around November, each Agency Director submits a
proposed budget based on the Mayor’s directions, working
closely with the agency fiscal officers from the Office of
the Chief Financial Officer (OCFO), which includes
financial information, as well as budget advice and
recommendations. This is the beginning of an iterative
process through which the Office of the Mayor, Office of
the Chief Financial Officer and District agencies
deliberate and make changes to each agency’s proposed
submission. The budget proposals go through several
22

For that and the foregoing reasons, we reject the Mayor’s separation of powers

argument as to the facts of this case. And we thus decline to address the applicability

of the executive privilege doctrine more broadly.

B. Whether TPM Can Seek to Enforce Sections 2-536(a) and (b)

We turn now to the Mayor’s arguments that relate to TPM’s request for “all

documents as required under D.C. Code § 2-536(a)(6A) and 2-536(b).” We first

consider the Mayor’s argument that TPM lacked standing to sue for documents that

were not part of its original D.C. FOIA request. We then turn to the Mayor’s

arguments that even if TPM had standing, the Superior Court exceeded its authority

in ordering the Mayor to make a disclosure beyond that requested by TPM in its

D.C. FOIA request.

1. Whether TPM Has Standing

The Mayor argues that “TPM’s standing to obtain directly the OSSE and

DCPS budget documents it specifically requested does not confer standing to obtain

rounds of discussion and vetting during the deliberation
process. As new information becomes available, it can
change the outcomes of final decisions and final costs.
Moreover, during this process, policy decisions are
adjusted and changed based on the latest information,
policy priorities and discussion.
23

prospective publication of all documents listed in D.C. Code § 2-536.” 9 Because

courts considering FOIA cases have “never suggested that those requesting

information . . . need show more than that they sought and were denied specific

agency records,” we disagree. Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449

(1989).

“Even though Congress created the District of Columbia court system under

Article I of the Constitution, rather than Article III, this court has followed

consistently the constitutional standing requirement embodied in Article III.”

Moeller v. District of Columbia, 253 A.3d 165, 168 (D.C. 2021) (quoting Grayson

v. AT&T Corp., 15 A.3d 219, 224 (D.C. 2011) (en banc)). “[T]o satisfy the

requirements for constitutional standing, a plaintiff must allege facts demonstrating:

(1) an injury in fact, meaning an invasion of a legally protected interest that is

(a) concrete and particularized and (b) actual or imminent; (2) a causal connection

between the injury and the conduct complained of; and (3) a likelihood that the

injury will be redressed by a favorable decision.” Kalorama Citizens Ass’n v.

9
Our discussion does not address TPM’s standing to obtain the DCPS and
OSSE documents it specifically requested because it is well-established that when
an agency denies a FOIA request, the requestor has standing to sue. See, e.g.,
Grayson v. AT&T Corp., 15 A.3d 219, 231 n.24 (D.C. 2011) (en banc) (“A FOIA
plaintiff’s standing does not turn on whether the Act, as correctly construed,
ultimately requires the government to disclose the agency records being sought.”).
24

SunTrust Bank Co., 286 A.3d 525, 532 (D.C. 2022) (internal quotation marks,

citations, and brackets omitted). We address the injury in fact requirements as they

relate to denial-of-information cases like this one before discussing how those

requirements, along with traceability and redressability, apply here to TPM.

The injury in fact requirements may be met when a plaintiff alleges either a

procedural or informational injury. As the Supreme Court has explained, “the

violation of a procedural right granted by statute can be sufficient in some

circumstances to constitute injury in fact,” such that a plaintiff may not need to

“allege any additional harm beyond the one Congress has identified.” Spokeo, Inc.

v. Robins, 578 U.S. 330, 342 (2016); see also Fed. Election Comm’n v. Akins, 524

U.S. 11, 21 (1998) (holding that a group of voters’ “inability to obtain information”

under statute formed concrete and particular injury); Pub. Citizen, 491 U.S. at 449

(holding that two advocacy organizations’ failure to obtain information subject to

disclosure under the Federal Advisory Committee Act “constitutes a sufficiently

distinct injury to provide standing to sue”).

“A plaintiff sustains a cognizable informational injury in fact when agency

action cuts [them] off from ‘information which must be publicly disclosed pursuant

to a statute.’” Animal Legal Def. Fund, 935 F.3d at 867 (quoting Akins, 524 U.S. at

21); see, e.g., N.Y. Legal Assistance Grp. v. Bd. of Immigr. Appeals, 987 F.3d 207,
25

216 n.18 (2nd Cir. 2021) (NYLAG) (“[NYLAG] alleges that the agency’s failure to

make unpublished [Board of Immigration Appeals] decisions publicly

available . . . impairs NYLAG’s ability to represent clients in immigration

proceedings. This type of injury has been found to satisfy the constitutional

requirements of standing.”) (internal quotations and citations omitted); see also

Waterkeeper All. v. Env’t Prot. Agency, 853 F.3d 527, 533 (D.C. Cir. 2017)

(concluding that when an agency’s action “reduces the information that must be

publicly disclosed” and means people who “sought that information no longer have

a statutory right to access it,” “[f]or the purpose of standing, that’s injury enough”).

A cognizable informational injury exists even “absent the denial of a request

for particular information.” Animal Legal Def. Fund, 935 F.3d at 867. In Animal

Legal Defense Fund v. U.S. Department of Agriculture, the Ninth Circuit concluded

that animal rights groups suffered an injury in fact when an agency changed its

policies and declined to post records related to enforcement activities under the

Animal Welfare Act. 935 F.3d at 863-64, 868-69. Despite an applicable provision

of the federal FOIA that requires agencies to “post certain categories of documents

without a request,” the plaintiffs had not been able to obtain records from the

agency’s online reading room—affecting the plaintiffs’ abilities to identify areas of

animal welfare concern. Id. at 865, 867 (emphasis in original). The Ninth Circuit

declined to decide whether a “bare statutory violation” could cause a “cognizable
26

injury in fact” since the plaintiffs had suffered “real[,] as opposed to purely legal”

harms. Id. at 867. These included allegations that plaintiff organization members

lacked information to “inform their daily lives, (such as whether they are about to

purchase a pet from a puppy mill known for abuses),” the time and cost of submitting

FOIA requests, and the staleness of information that can occur after waiting for an

agency to produce records. Id. “Their inability to inspect documents in virtual

reading rooms harmed them in real-world ways[,]” and the harm was “fairly

traceable” to the agency’s decision not to produce records and likely to be redressed

through the requested relief. Id. at 869. Moreover, given that Congress designed

the applicable provision “to reduce the need for individual requests . . . [y]et the

change of policy has required Plaintiffs to make requests for copies of the records

previously publicly available,” the court concluded that the plaintiffs had suffered

“the kind of harm Congress sought to prevent.” Id. at 868.

Like the plaintiffs in Animal Legal Defense Fund, TPM has also asserted real

harms that flow from the harm caused by the Mayor’s withholding of information

that had to be disclosed under Section 2-536. TPM’s counsel explained at oral

argument that TPM needs to know, for each fiscal year, what funding OSSE and

DCPS believe they need in order to comply with the D.L. injunction, and it is

apparent to us that the Mayor’s failure to disclose documents required under

section 2-536 hindered TPM’s efforts. To be sure, the Mayor contends that when it
27

comes to “all documents listed in D.C. Code § 2-536,” TPM “has articulated no

concrete injury from the absence of . . . publication” and has asserted only an

“abstract and generally available grievance.” But TPM has pointed to its series of

failed attempts to find and retrieve documents needed to monitor the District’s

compliance with the injunction issued in D.L. Especially for a plaintiff like TPM,

which is charged with monitoring an agency’s compliance efforts, making

documents freely available online in compliance with law and without a request is

plausibly necessary to avoid delayed and more burdensome access to records. And

just as the Ninth Circuit found an injury where a plaintiff had to make requests for

documents under a FOIA provision “specifically designed to reduce the need for

individual requests,” 935 F.3d at 868, we conclude that section 2-536 was similarly

designed to reduce requests—and that TPM has suffered the type of harm the

Council meant to prevent. Finally, we agree with TPM that since standing hinges

“on the claims and form of the relief sought in the Complaint, not the scope of the

relief awarded,” the trial court’s award of broader relief than what TPM sought in

its initial D.C. FOIA request does not now impact its standing.

In short, TPM suffered an actual injury. That injury, along with the

undisputed traceability of that injury to the actions the Mayor took in withholding

that information and the likelihood of the injury being redressed with the disclosure

of information required under sections 2-536(a) and (b), gave TPM standing to
28

challenge the decision of the Mayor not to produce documents required under

sections 2-536(a) and (b).

2. Whether the Superior Court Exceeded Its Authority in
Requiring Disclosure Under Section 2-536

Next, the Mayor contends that while the D.C. FOIA statutory scheme

“provides a remedy if the District fails to provide documents to an individual

requester, it does not authorize a private party to sue to force, let alone authorize the

court to order, the publication of documents online pursuant to D.C. Code § 2-536.”

We disagree and hold that under the D.C. FOIA, a party may seek injunctive relief

to order the publication of documents online.

A requester who is “denied the right to inspect a public record” and has

exhausted administrative remedies may file suit for declaratory or injunctive relief

in Superior Court. D.C. Code §§ 2-537(a)(1), (2). In “any suit” filed by a person

denied the right to inspect a public record, “the Superior Court for the District of

Columbia may enjoin the public body from withholding records and order the

production of any records improperly withheld from the person seeking disclosure.”

D.C. Code § 2-537(b) (emphasis added). The Mayor reads these provisions to

contend that while a court may “order production of improperly withheld documents
29

to an individual requester, there is no similar provision that authorizes it to require

documents to be published on the internet.”

Courts considering similar language to ours in the federal FOIA, however,

have “interpret[ed] the words ‘to enjoin the agency from withholding agency

records’ to mean what they say: FOIA authorizes district courts to stop the agency

from holding back records it has a duty to make available, which includes requiring

an agency to post [those] documents online.” Animal Legal Def. Fund, 935 F.3d at

869 (quoting 5 U.S.C. § 552(a)(4)(B)). That authorization particularly matters

where there has been a “repeated failure to disclose documents” and a “need to

pursue successive . . . successful challenges every time it sought such documents[.]”

Citizens for Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 846 F.3d 1235, 1242

(D.C. Cir. 2017) (internal quotation marks omitted) (CREW). To be sure, federal

circuits have differed on the scope of that authorization. As the Mayor correctly

points out, the D.C. Circuit has held that under the federal FOIA’s “reading room

provision,” which requires federal agencies to make certain agency records

“available for public inspection in an electronic format,” 5 U.S.C. § 552(a)(2),

district courts “lack authority under FOIA to order agencies to make [records]

available for public inspection,” CREW, 846 F.3d at 1246 (internal quotation marks

omitted). But that holding, which involved a public interest group’s attempt to force

OLC to make available for public inspection certain documents and indexes, was
30

governed by an earlier D.C. Circuit case that seemed to limit the scope of

§ 552(a)(4)(B). See id. at 1243 (discussing the holding that, “it might seem strange”

for Congress to require agencies to publish without giving courts power to order

publication, but § 552 only allows a district court to order “production of any agency

records improperly withheld from the complainant[,]” in Kennecott Utah Copper

Corp. v. U.S. Dep’t of Interior, 88 F.3d 1191, 1202 (D.C. Cir. 1996) (emphasis in

original)); see also Animal Legal Def. Fund, 935 F.3d at 875-76 (discussing history).

But we are not bound by that precedent and decline to adopt such a holding because

D.C. FOIA declares that “all persons are entitled to full and complete information

regarding the affairs of government. . .” and requires that the “provisions of this

subchapter shall be construed with the view toward expansion of public access and

the minimization of costs and time delays to persons requesting information.” D.C.

Code § 2-531.

We find more persuasive the Ninth Circuit’s analysis of the shared language

between D.C. Code § 2-537 and 5 U.S.C. § 552. It declined to render the “provision

into precatory language, despite § 552(a)(2) imposing a mandatory duty for agencies

to make certain records ‘available for public inspection’ and § 552(a)(4)(B) granting

‘jurisdiction to enjoin the agency from withholding agency records.’” Animal Legal

Def. Fund, 935 F.3d at 875. Contrary to the D.C. Circuit, the Ninth Circuit held that

district courts can “compel an agency to make documents available to the general
31

public” as injunctive relief sought by FOIA plaintiffs. See id. at 865. That court

focused its analysis on the text and structure of § 552(a)(4)(B), reasoning that

“[i]f . . . Congress only authorized federal courts to ‘order the production’ of records

to a particular complainant, then the judicial-review provision would not need the

words ‘jurisdiction to enjoin the agency from withholding agency records[,]’

because the [“order the production”] phrase would do all of the necessary work.” Id.

at 870. Thus, that court rejected an interpretation under which, “if an agency shrugs

th[e] congressional command [to post a certain record], the statute forces plaintiffs

right back into the requests and backlogs Congress sought to avoid in the first place.”

Id. at 872.

The Second Circuit reached the same conclusion in NYLAG. 987 F.3d at 207.

It held that a district court had authority under the federal FOIA to order the Board

of Immigration Appeals to make its unpublished decisions available to the public—

not just the requester. Id. The Second Circuit reasoned that Congress’s use of the

word “and” in § 552(a)(4)(B) “suggest[s] that Congress meant to authorize courts to

exercise two independent powers [(1) enjoining the withholding of records and

(2) compelling the production of records], only the second of which would be

modified by the [“improperly withheld from the complainant”] phrase[.]” Id. at 215-

16. The context of § 552(a)(4)(B) also mattered “given that both parties agree that

Congress intended courts to review agencies’ compliance with the affirmative
32

obligations in § 552(a)(2).” Id. at 221. The Second Circuit concluded that, “it makes

little sense to suggest that the remedy for failing to comply with those obligations is

limited to the one embodied in the provision itself, which operates outside the scope

of that judicial review.” Id. And that court declined to adopt an interpretation that

would “have such records be made available only to those individual members of

the public who have the resources to seek them out” because that would be

“antithetical” to Congress’s goals of disclosure. Id. at 224 & n.27.

We decline to adopt a similarly antithetical interpretation when it comes to

the D.C. FOIA. For starters, we have observed that the D.C. FOIA declares “the

public policy of the District of Columbia” to be “that all persons are entitled to full

and complete information regarding the affairs of government and the official acts

of those who represent them.” Fraternal Ord. of Police, 79 A.3d at 353-54 (quoting

D.C. Code § 2-531). In light of that public policy and mandate, we think the better

reading is to construe section 2-537(a) as authorizing a Superior Court judge, at the

request of an individual complainant that satisfies the requirements of standing, to

enjoin public agencies from holding back records that they have a duty to make

available to the public without request under section 2-536. To conclude otherwise

would “render the proactive disclosure requirements” of section 2-536 to be “merely

precatory.” NYLAG, 987 F.3d at 220. Thus, we conclude that the trial court did not

exceed its authority in requiring the Mayor not only to produce the OSSE and DCPS
33

budget-request documents TPM sought, but also to post those documents online as

required by Section 2-536(b).

3. Whether the Superior Court Erroneously Granted
“Prospective Relief”

The last question we address is whether the Superior Court erred in granting

TPM—as the Mayor puts it—“prospective relief” for “documents not yet in

existence.” Humane Soc’y of the U.S. v. U.S. Fish & Wildlife Serv., 838 F.App’x

721, 731 (4th Cir. 2020). We think the Mayor’s claim mischaracterizes the nature

of the trial court’s order, but we remand for the trial court to specify what relief is

due here under Section 2-536.

Of course, courts fashioning relief must “take into account the potentially

significant burden on the agency of complying with any such order, and work with

the parties to establish realistic timelines for compliance.” NYLAG, 987 F.3d at 225.

But courts may grant—and, in the federal context, have granted—injunctive relief

that comes with an affirmative duty to disclose. Compare id. (declining to require

agency to produce twenty-five years’ worth of immigration decisions, but suggesting

that “requiring compliance going forward” or posting a “smaller subset of

unpublished decisions” could “provide complete relief”), and CREW, 846 F.3d at

1242 (“Following Renegotiation Board, Payne, and [other D.C. Circuit] decisions,
34

we have little trouble concluding that a district court possesses authority to grant the

first two categories of relief CREW seeks—a prospective injunction with an

affirmative duty to disclose.”), with Humane Soc’y, 838 F.App’x at 726, 731

(affirming dismissal of a FOIA action that sought an injunction to make agency

records “available on an ongoing basis electronically . . . after the receipt or creation

of such records” because records were “not yet in existence”). We adopt that

reasoning because, namely, we “cannot square our precedents with the agency’s

position that courts have no authority beyond ordering the agency to produce a copy

of a requested document to the requester.” Animal Legal Def. Fund, 935 F.3d at

874.

Here, as an initial matter, the trial court does not appear to have ordered the

publication of “prospective” documents, but does appear to have found that the

Mayor had not produced documents under Section 2-536(a)(6A). After TPM’s

complaint sought the publication of documents that the Mayor was statutorily

required to produce, the trial court concluded in its summary judgment order that

“[t]he documents that the District states are predecisional and deliberative are listed

in [Section 2-536(a)(6A)] as documents that need to be produced and published.”

The trial court then ordered:

As the Court grants TPM’s Motion for Summary
Judgment in its entirety but denies the District’s Motion
35

for Summary Judgment, the District has fourteen (14) days
from the instant Order, on or before August 5, 2021, to
produce the documents requested [sic] TPM’s FOIA
request and to comply with D.C. Code
§ 2-536(a)(6A). . . . it is this 20 day of August 2021,
th

hereby, . . . FURTHER ORDERED that the Defendant
SHALL PUBLISH the required documents pursuant to
D.C. § 2-536 on or before August 5, 2021.

(Emphasis added). After summary judgment and upon a consent motion from both

parties, the court clarified that the order:

means exactly as it is written. D.C. Code § 2-536
specifically enumerates certain documents that the D.C.
Council required the government to publish not just the
2019 documents that the Plaintiff’s requested. Thus, the
Court . . . clarifies the July 23, 2021 Order in that the
District was required [sic] publish the documents pursuant
to § 2-536 which necessarily encompasses the documents
requested by the Plaintiff.

In short, as a form of equitable relief, the trial court ordered the publication of

documents under section 2-536.

We cannot tell from the trial court’s order, however, what is covered by the

required publication of “documents pursuant to § 2-536.” Read a number of

different ways, the trial court’s order could include budget requests, submissions,

and reports just for 2019; for 2019 and all fiscal years after this litigation

commenced; for all provisions under section 2-536 or just sections 2-536(a)(6A) and

2-536(b), as TPM sought; or, as the Mayor frames it, “prospective” documents
36

moving forward. So we remand for clarification on the scope of relief. But we note,

as the Second Circuit did, that “such considerations are the stuff of decisions about

the scope of equitable relief, and rest in the sound discretion of the [trial] court.”

NYLAG, 987 F.3d at 225-26.

V. Conclusion

For the foregoing reasons, we affirm the order of the Superior Court requiring

online publication and production to TPM of DCPS and OSSE budget-request

documents for fiscal years 2019 through the present. We vacate and remand the

portion of the order that requires publication of all other documents that are subject

to D.C. Code § 2-536.

So ordered.

District of Columbia v. Terris, Pravlik & Millian, LLP

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