Coalition cites transparency progress, need for improvement at Council hearing
dcogcadmin | February 13, 2015
In an oversight hearing Feb. 12, Fritz Mulhauser, co-chair of the Legal Committee, said the Coalition has enjoyed a fruitful relationship with the Office of Open Government and is strong supporters of that office. In 2014 OOG worked with other parts of the executive branch to achieve notable accomplishments, including:
- Gaining endorsement from the Mayor for open government principles in his 2014 Transparency and Open Data Directive;
- Establishing a central “portal” to receive, track and archive requests for records under the D.C. Freedom of Information Act (FOIA);
- Creating a unified on-line calendar of meetings subject to the OMA, with the further requirement that all public bodies use this calendar, publishing rules for receiving and deciding complaints of OMA violations, and requiring training of public bodies in the Act’s requirements;
- Reviewing open government activity in all executive agencies, as part of the Mayor’s Open Government Advisory Group;
- Providing useful ideas in the OOG annual “Best Practices” report.
But these bits of good news must be balanced with other observations:
- FOIA and Open Meetings Act performance remains subpar. There continue to be unreasonable delays in responding to FOIA requests and incorrect denials remain common. The new FOIA “portal” offers the chance for improvement, but it has slowed reporting (the 2014 annual reports are overdue) and not all agencies can be reached with records requests through the FOIA portal. Many public bodies are lax in their duties under the Open Meetings Act, failing to publish meeting notices, agendas, the grounds for closure of meetings or full meeting records;
- The OOG Annual Report repeats suggestions from prior years, highlighting an apparent lack of progress on issues identified as crucial;
- The open data directive came so late in the administration that it had little apparent force or effect; and
- As a result of unclear lines of responsibility and unfunded mandates the District still lacks the capable and independent body envisioned in the legislation, a focal point to lead transparency initiatives across D.C. government, despite the establishment of the OOG several years ago.
So there is more work to be done. We encourage the Committee to work this year with the executive to improve the open government laws of the District and fund their implementation in the budget process to come. As you can read in detail in our plan, the needs for action include:
Improved access to public records.
- By legislation: The DC FOIA statute is long overdue for amendment. While several suggestions in our Open Government Action Plan track key changes in the federal law (such as improving affirmative disclosure, adding sanctions when agencies ignore the law, and clarifying fee issues), we believe one key change can be made involving the OOG: appeals of FOIA denials currently handled by the Mayor’s Office should be redirected to the OOG;
- By implementation and oversight: The OOG can be encouraged to do its job of improving FOIA and reducing needless costs of controversy if the Mayor (i) establishes a formal mediation track, (ii) clarifies requirements for agency compliance with appeal decisions (which, we hope, would be issued by the OOG), and (iii) assures the OOG has the authority needed to oversee the FOI activity of the entire executive so that agencies follow the law and use information technology to keep pace with the needs of the public for access.
Improved access to public bodies’ meetings.
- By legislation: The OMA should apply generally to all bodies of government. The Council should amend the law to add Advisory Neighborhood Commissions, along with committees and task forces of public bodies. While current law makes clear that OOG enforces the law, we also ask the Council to consider our earlier proposal that there should be (as in public records cases) a mechanism for public enforcement of the OMA through the courts.
- By implementation and oversight: OOG should be encouraged to interpret the law, provide training and assist with resources as needed so that public bodies including ANCs know and can do what they must to comply with the Act, including in areas such as using information technology to announce meetings, distribute live content and allow for easy access to related records.
More open data.
- By legislation: open data is too important to be left to changing priorities of the executive, so the Council needs to codify responsibility at both agency and central levels for making data public and in accessible forms (as jurisdictions such as New York and San Francisco have done by law);
- By implementation and oversight: the Council should clarify the responsibility of OOG to play a central role in open data plans of the Chief Technology Officer and Chief Data Officer, including setting open-data performance goals and reporting on the executive’s open data initiatives.
The community conversation that the Coalition moderated on open government for D.C. in the new administration and the new century brought forth a host of significant ideas from highly knowledgeable citizens; only a few are highlighted above. We are happy to discuss our Action Plan with the Council and the executive in the coming year.
Looking at the Office of Open Government alone, at current funding levels no matter how hard the Director works, she is doomed to fail. Continued meager resources and unclear responsibilities send a message that the D.C. government is more interested in the appearance of government transparency than in actual transparency.
We doubt this is the result intended by then-Council Member Bowser when she introduced the Open Meetings Act in 2010 or when she later advocated placing the Office under BEGA’s administration to remedy the Mayor’s refusal to appoint a director. It is not what we hope the Council intended when it created the independent Office of Open Government with a mandate to improve government accountability by increasing public access to government records and meetings.
We look forward to working with you to reach the point where the Office of Open Government can have a real, significant impact on District residents’ access to their government. We ask this committee this year at least to assure by appropriation and by report language and other direction to the executive that the Office of Open Government has the mandate and resources needed, including:
- An FY 2016 budget, separate from BEGA, that includes (in addition to the Director and the IT position now advertised) three attorneys and a paralegal so that existing and new tasks of oversight, training and violation review can be capably performed;
- Increased independence for the OOG via its own Annual Reporting to the Mayor and the Council;
- Clear responsibility for D.C. FOI policy and implementation, including (until the statute is changed) direction that the Mayor delegate appeals to the Office; and
Expanded scope for leadership by the Office in emerging areas including open data.
 The Council in December 2010 enacted the Open Meetings Act, D.C. Code § 2-571, and created the Office to oversee it, D.C. Code § 2-591. When the Mayor did not appoint a director, then-Council Member Bowser in 2012, as part of comprehensive ethics and government accountability legislation, Law 19-24, placed the Office of Open Government within BEGA for administrative purposes so that a director would be appointed and work begin. In response to concerns voiced by the Coalition and others, the legislation emphasized the independence of the Office. We were concerned also from the outset about the budget for the Office, and indeed its funding has been cut repeatedly and consists of the Director (only).