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Coalition testifies in pre-budget oversight hearing

dcogcadmin | February 24, 2016 | Last modified: February 18, 2019

  In an oversight hearing of the D.C. Council Judiciary Committee, the Open Government Coalition highlighed government transparency successes in the past year and sought more resources for the Office of Open Government in next year’s budget. The hearing marked the opening round of the Council’s annual budget process, which will play out through the spring. To watch video of the hearing click here. (Coalition testimony begins at 6:45.)

  Coalition board member Fritz Mulhauser told the Committee that the Office of Open Government (staffed through the past year by the director alone) has served a valuable public function again this year. It has helped the public with access to meetings and records and trained staff of agencies and members of boards and commissions. Notable work of the office in 2015 included:

  • Assisting the Council with independent analysis and testimony on the high-profile open government issue of the year — public access to police body camera video;
  • Strengthening public access by issuing opinions on two important complaints that highlighted failures to fulfill obligations under open government statues. In the first instance, the OOG ruled that a “task force” proposed by the deputy mayor for education had to comply with the public meetings statute and could not operate in secret. In the second case, it chastised an agency that for years had ignored its obligations (found in D.C. Code  § 2-536) to post materials online so the public could see them without filing FOIA requests.

  These bits of good news must be balanced with concerns about the state of open government in the District that need to be addressed with enhanced resources and authority for the OOG:

  • FOIA and OMA performance remains subpar: agency FOIA delays and incorrect denials are common and the District continues to lose most FOIA cases in court. The District’s FOIA portal does not include all agencies, and the portal’s promised FOIA reading room has few items. Many public bodies continue to shirk their duties under the Open Meetings Act to publish meeting notices, agendas, grounds of any closures, and full meeting records.
  • The mayor’s new Office of Legal Counsel took over supervision of agency legal work and resolution of administrative appeals of FOIA denials. As a result, providing oversight and guidance for executive branch compliance is divided three ways among the Office of Open Government, the Office of the Attorney General and the mayor’s office. This overlapping of responsibility will increase the danger that agencies will get conflicting advice, and the opportunity for forum shopping.
  • Mandatory annual reporting on FOIA processing, appeals and litigation has been untimely and inaccurate — the mayor’s annual report to the public and Council due by February 1, 2015, was issued late and had to be recalled to correct significant errors. The 2016 report has yet to be posted.
  • When the executive developed key transparency policies, such as limits on access to police camera videos, a FOIA exemption for charter schoolteacher evaluation records, and an open data policy, it did so with little or no serious consultation with the Office of Open Government.[1]  

  Thus the concerns we have raised in previous testimony continue to plague the District government. Three years after the OOG opened for business, the District still lacks the fully capable and independent body envisioned in the 2010 legislation that created it, a focal point to lead transparency initiatives across D.C. government.[2]

  The Coalition commends the committee’s action adding an attorney position in the office for the present year; we have for several years pointed out the impossibility of effective work in the office with only a director. This is a crucial step in the right direction. At a minimum, this level of funding should be maintained and it should be increased to allow the OOG to effectively fulfill and expand its mission.

  That opportunity exists in 2016.  A top priority for the Coalition this year is passage of a revised statutory framework for open government and the work of the OOG. We urge this occur in the current Council Period.

  The OOG drew in recent months on its three years of experience to provide invaluable assistance in the drafting of B21-0577, the “Strengthening Transparency and Open Access to Government Amendment Act of 2016.” As we have testified repeatedly, the public records and open meetings statutes can benefit from updating and amendment, and the proposed bill will accomplish much of what is needed. We urge the Committee to hold hearings and the Council to pass the bill.

  To improve the FOIA statute and the ability of the OOG to oversee it, the bill will:

  • Strengthen access to agency datasets and records of government contractors;
  • Require free access if the charge is less than the costs of collection;
  • Require a common fee schedule to be developed by the Office of Open Government;
  • Update the definition of “media” requesters;
  • Require waiver of fees if an agency fails to respond promptly;
  • Lengthen the deadline for agency response from 15 days to 20;
  • Require agencies to provide more details and explanations when they deny records requests;
  • Reassign adjudication of administrative appeals from the mayor to the OOG, and allow appeals from denials of fee-waivers;
  • Speed up litigation challenging agency denial;
  • Strengthen annual FOIA reporting by the mayor to the public and the Council; and
  • Give the Office of Open Government authority to establish government-wide FOIA request processing and tracking procedures.

  Concerning open data, the bill provides that publication of agency data shall be a statutory responsibility of a Chief Data Officer, and sets uniform standards regarding format and accessibility.

  And the bill will improve the Open Meetings Act by:

  • Creating a right for D.C. residents to bring a court action when a meeting that should be open is improperly closed;
  • Requiring the mayor to publish information about appointees to governmental boards and commissions in a centralized location and to collect demographic data about appointees; and
  • Making Advisory Neighborhood Commissions subject to the statute.

  If the Council enacts Bill 21-0577, the OOG’s responsibilities will increase significantly, and current funding levels, which provide salaries only for the director and a staff attorney, will be inadequate. The added responsibility for FOIA appeals, developing a FOIA fee schedule, improving reporting, and adding ANCs to list of public bodies to be trained and monitored for open meetings compliance will require at least two additional attorneys and support staff.  

  By enacting Bill 21-0577 and increasing the OOG’s resources the D.C. government can demonstrate its commitment to being more open to the public. The Coalition looks forward to working with the committee and the Council towards the open government goals we share.

[1] The need for statutory direction as well as executive guidance to agencies on open data was a theme of the Action Plan the Coalition delivered to the Council and executive in fall 2014, and reemphasized in the Coalition’s oversight testimony in February 2015 encouraging the office to lead such work. We didn’t imagine months of planning would exclude the office so completely.

[2] The Council in December 2010 enacted the Open Meetings Act, D.C. Code § 2-571, and created the Office of Open Government to oversee it, D.C. Code § 2-591. When the mayor failed to appoint a director, then-Council Member Bowser in 2012, as part of comprehensive ethics and government accountability legislation, Law 19-24, placed the office within BEGA for administrative purposes so that that board could appoint a director and work could begin. The board announced the director’s appointment in April 2013. In response to concerns voiced by the Coalition and others, the legislation emphasized the independence of the office.