How We Tallied Compliance with Certain Requirements of the Open Meetings Act About Record of Meetings (D.C. Code § 2-578) and Closing Meetings (D.C. Code § 2-575)
“The public policy of the District is that all persons are entitled to full and complete information regarding the affairs of government and the actions of those who represent them.” D.C. Code § 2-572.
As one way to carry out that ambitious policy, the Council in 2011 passed the Open Meetings Act requiring “public bodies” to do their work in public and to inform the public in various ways such as by publishing notices and agendas of meetings in advance and records of meetings afterwards.1
The Act requires that public meetings shall be recorded by electronic means whether they are open or closed. D.C. Code § 2-578(a). Meetings are to be open and may be closed for only 14 specific reasons listed in the law. D.C. Code § 5-275(b). The body closing its meeting must give advance notice along with the meeting notice and agenda, as well as the reason(s) for closing part or all and the matters to be discussed. The body must at the meeting take a public vote to close the session or portion and again give the reasons and subjects to be discussed. The body may withhold all or part of a meeting record “under the standard established for closed meetings.”
1. Issues Regarding the Record
(a) Full Record (D.C. Code § 2-578)
The Open Meetings Act requires that “[c]opies of records shall be made available for public inspection” as soon as practicable. D.C. Code § 2-578(b)(2). Meetings shall be recorded. We examined the Web site of each body checking for a full record (recording or transcript) of each public meeting, whether open or closed. We checked for other access to the full record by calling the office of each body.
(b) What are “Detailed Minutes”?
“Detailed minutes” shall be kept when a recording is “not feasible.” D.C. Code § 2-578(a). The statute does not define detailed minutes. For purposes of this review, the Coalition study team developed a working definition of the Act’s requirement. The “full record” includes by definition everything said. At issue is how much less may be included in minutes for them to be a satisfactory representation of what took place. Coalition researchers found 152 minutes of meetings and reviewed all using the definition below. None were detailed, by our definition.
We started with the premise that “detailed minutes” should convey to the reader the important parts of what an electronic recording would: sufficient detail to show the members of the body present; a thorough description of issues before the body (not simply summaries); of discussion by the board both in general and on a matter being decided; of any member presentations, guest speaker presentations and comments from the public; of any decisions whether by vote (by voice vote, roll call or other method) or some other method of resolving a disputed question; a listing of exhibits and records received by the body whether for use in a decision, voting or consideration in any way; and an account of all conversation on the record held during the meeting regardless of the nature of the conversation, the subject matter or the speaker.
Minutes may be substituted where recording isn’t feasible; they take the place of that missing complete record. Therefore, minutes that merely summarize the meeting without the contents discussed above would seem to be against the public policy of “full and complete information” that the act is intended to carry out.
Recording technology, either full sound and video or audio alone, is widely available at low cost; claims of lack of feasibility are thus hard to understand. But for the many meetings where we found no full record, we had no way to assess what genuine issues of feasibility may have played a part.
The Open Government Office has begun training public bodies in the act’s requirements including those concerning the record of meetings and the director has reported hearing concerns from staff and members of smaller public bodies. Chiefly they report a lack of staff to record meetings (as well as the optional additional work of uploading to the Web), or to write detailed minutes under deadline pressure. The Act requires the record be available as soon as practicable. In any case, minutes are to be available no later than three business days after a meeting, and the full record no later than seven business days. D.C. Code § 2-578(b)(1) and (b)(2). From Web site data, the Coalition could not evaluate the timeliness of posting.
After reviewing a draft of this report, the director of the Office said the Coalition content standard for detailed minutes is “an overly burdensome bar.” In her view a summary will suffice if it communicates the topics discussed, members’ positions and final actions taken. As to timeliness, she said her office is advising public bodies to post drafts of minutes by the three-day point, especially where minutes may not be final until approved at a later meeting.
2. Issues Regarding Closed Meetings
The Open Meetings Act allows for a meeting or portion of any meeting to be closed. D.C. Code § 2-575(b). Our table displays the total meetings we found, and then in separate columns separates that figure into the number of meetings that were entirely open and the number of meetings that were closed to any extent.
(a) What Counts As Record Vote to Close?
The Open Meetings Act requires that “before a meeting or portion of a meeting may be closed the public body shall…vote in favor of closure.” D.C. Code § 2-575(c)(1). Additionally, “[a] copy of the roll call vote and the statement shall be provided in writing and made available to the public.” D.C. Code § 2-575(c)(2). We looked in the record or minutes of a meeting for such a vote. We counted the vote only if the record showed the roll call required; all but one of 69 closed meetings of the Alcoholic Beverage Board lacked such a record, showing only “a unanimous” vote. Our reading may be too strict.
(b) What We Counted as “Statutory Basis of Closing”
The Open Meetings Act requires that before closing a meeting or a portion of the meeting, a statutory basis for closure must be provided. D.C. Code § 2-575(c)(2) (“presiding officer shall make a statement providing the reason for closure, including citations from subsection (b)…and the subjects to be discussed.”). We looked in the record for the required reference.
1The Act applies chiefly to boards, commissions and advisory bodies that take formal votes. It does not apply to D.C. government agencies, courts, charter school governing boards, or Advisory Neighborhood Commissions. D.C. Code § 2-574 (3). There are about 200 boards and commissions. See the list. The mayor sent legislation to the Council (bill B20-0071) on January 18, 2013, to abolish about 30. The statute called for a report by the relevant Council committee by June 2011 on extending coverage to the Advisory Neighborhood Commissions, D.C. Code § 2-575(g). The report has never been completed.