Mayor proposes anti-openness FOIA amendments

  In an order issued on his first day in office Mayor Vincent C. Gray said “My Administration is committed to creating a transparent and open government that extends to all departments, agencies, boards, commissions and offices of the District government.” Less than 18 months later he proposed legislation that would seriously limit the information available to the public and make it easier for agencies to delay or avoid disclosure under the Freedom of Information Act.

  “While the rest of the world marches toward greater transparency to combat corruption and enhance public participation and confidence in government, the Mayor’s FOIA proposal would take the District a big step backward. It's shameful,” said Thomas M. Susman, Coalition president, when he learned about the bill.

  The Freedom of Information Amendment Act of 2012, Bill 19-776, would expand FOI Act exemptions permitting agencies to withhold law enforcement records, critical infrastructure data, and information private entities submit to the government. It would broaden the so-called deliberative process exemption to cover studies and reports prepared at government expense by outside contractors, and it would broaden the definition of privilege applied to withhold records somehow related to litigation and legal proceedings.

  The bill seeks to wrest control of the Open Government Office, established in 2010 but never opened, from the recently created Ethics Board. It would limit the Office’s responsibilities to training public officials about the FOI and Open Meetings statutes. The Office could provide “voluntary, informal dispute resolution services,” but could not become involved in litigation to enforce either statute. Finally, it says “The Mayor may issue rules governing the functions and procedures of the Open Government Office as related to this section.”

  When the D.C. Council passed the Open Meetings Act in 2010 it created the Open Government Office as an independent body to oversee and enforce the statute. The law bars suits to enforce the law by individuals excluded from meetings of public bodies and makes the Office the only entity that can bring an enforcement action. If the Mayor’s bill passes there would be no mechanism to obtain administrative or judicial review of violations.

  Other provisions in the Mayor’s bill would increase the time an agency has to respond to FOI Act requests from 15 to 20 days, would increase situations in which agencies could assert the need for additional processing time, and would allow agencies to demand that requesters modify requests to obtain speedier processing. At the same time it would set short deadlines for appealing agency decisions to withhold information and obscure when the appeal clock begins running.

  “It's hard to see any rationale for the bill that would be consistent with the mayor’s own support for more open government," said former Councilmember Kathy Patterson, Coalition vice-president.

  It is difficult to understand the Mayor’s purpose for introducing this bill in light of efforts by Council Members Mary Cheh (Ward 3) in 2010 and 2011, and Muriel Bowser (Ward 4) earlier this year to expand and strengthen the Open Government Office. The Cheh and Bowser bills, pending before the Government Operations Committee that Bowser now chairs, include provisions that would give the office broad power as an independent entity to investigate violations of both statutes, to issue binding orders requiring agency compliance, and to sue in Superior Court to enforce its orders. Cheh’s bills would have given the Office similar powers.

  In addition, when the Council passed the Open Meetings Act it gave the mayor the power to appoint the Open Government Office Director to a five-year term. Although the statute took effect in early April 2011, the mayor never nominated a director. Expressing frustration at the delay, in October 2011 Bowser proposed placing the office under the administrative supervision of a new Ethics Board, and giving the three-member board authority to appoint the director. The Council passed the ethics bill in December 2011, and the Mayor nominated the Ethics Board shortly after introducing his FOI Act amendments.

  Bowser has not scheduled hearings on the pending bills.