Coalition Testifies on Needed Open Government Improvements to D.C. Council Performance Oversight Hearings

Fritz Mulhauser | March 8, 2023 | Last modified: October 13, 2023

The D.C. Open Government Coalition submitted ten oral and written testimonies during the Council oversight season just concluded. With a roster completed with two new members selected in last fall’s elections, the new Council kicked off the 25^th Council period with 63 hearings by eleven committees. Their charge was to review government performance in 2021-22 and the first part of 2023.

Legislative oversight of executive branch performance is challenging everywhere because of the huge information mismatch — even with a total of more than 340 hours of testimony, it’s a stretch to evaluate over 140 units of the District government and a $17 billion budget. 

Accessible virtual hearings have significantly increased public participation, with one witness we saw even calling in while driving; but interaction is limited on any topic—only a few minutes per witness, and typically only the chair is present. Committee changes (new agency assignments, new chairs) mean new issues for even veteran Council members to master. The chairman’s policy is to appoint only returning members to chair committees, leaving ten members to divide up all of government. (The chairman chairs the eleventh, Committee of the Whole, that oversees, among many other agencies, the D.C. schools and the university.) Committee staffs are tiny as well.

Coalition recommendations for agency action

Coalition statements advocated for numerous improvements in open government, including these:

• Office of Advisory Neighborhood Commissions (part of the Council, not under the mayor) should urgently offer enhanced technology and training to help 46 ANCs manage records for FOIA compliance and to improve public access to meetings (Committee on Housing, Robert White, chair; written statement)
• Office of Administrative Hearings must improve treatment of the tens of thousands of users, including online information on using the agency and published opinions in past cases (Committee on Public Works & Operations, Brooke Pinto, chair; written statement)
• D.C. Archives has contracted architects for the long-delayed new building but they must consult soon with users and community experts so that the plans being finalized will maximize public access to the vast and historic collections managed by the Office of Public Records in the Office of the Secretary (Committee on Executive Administration & Labor, Anita Bonds, chair; written statement); similar testimony for Department of General Services, the construction agency that manages the project’s architects (Committee on Facilities & Family Services, Janeese Lewis George, chair; written statement)
• Mayor’s Office of Legal Counsel should pass to a better-resourced agency their job of deciding appeals of agencies’ FOIA denials; that may be the only way to end backlogs of undecided cases and failure for years to publish decisions (Committee on Executive Administration & Labor, Anita Bonds, chair; written statement)
• Metro (WMATA) board should involve the public in plans for access to video from Transit Police body cameras that roll out later this year; draft plans are now secret and critical decisions are in the hands of police officials who rarely opt for public access that is the norm in all three Metro jurisdictions (Committee on Transportation & Environment, Charles Allen, chair; written statement)
• D.C. Metropolitan Police must end over-redaction of police body-cam video released to FOIA requesters since it takes forever, costs a bundle, and isn’t even lawful (Committee on Judiciary & Public Safety, Brooke Pinto, chair; written statement)
• Office of the Chief Technology Officer should improve the outdated technology 10,000 requesters use each year to submit and track FOIA requests at the citywide online access portal (Committee on Public Works & Operations, Brianne Nadeau, chair; written statement)
• Office of Open Government needs authority to assure agency compliance with laws on public access to meetings and records (now it must go to court to enforce laws on meetings and has no authority at all over FOIA compliance) and should also handle appeals of ANCs’ FOIA denials which now can only be challenged in costly court proceedings (Committee on Executive Administration & Labor, Anita Bonds, chair; written statement)
• Department of Health should promptly complete re-publication of annual reports on patient and physician implementation of the Death With Dignity Act of 2016; public reports required by Section 8 of the law were issued but withdrawn over privacy concerns — that individuals might be identifiable in data tables. But the agency never reissued the reports (required by law to be published) until the Coalition made a FOIA request for the reports and even then, republication is incomplete after seven months (Committee on Health, Christina Henderson, chair; written statement).

The Open Government Coalition has advocated on many of these themes before, resulting in Council committee report language addressing the executive on improvements that are more often ignored than acted on. When the Coalition asked one agency this January for a data report requested in a committee 2022 budget report, an agency staff member responded, “we have done no such report; Council recommendations are not requirements.”

It’s the same on Capitol Hill. The Congressional Research Service has noted that language included in House and Senate committee reports “includes detailed spending instructions, directives, expectations, and spending restrictions…Directives contained in report language may require or encourage departments or agencies to take specified action or refrain from taking a certain action… [but] significantly, report language does not have statutory force; departments and agencies are not legally bound by their declarations. These documents do, however, explain congressional intent, and executive branch agencies take them seriously because they must justify their budget requests annually” to the committees that wrote the reports.

Coalition testimonies repeatedly quoted this year from committees’ past report language and offered evidence of the extent of agency compliance. Read here about Coalition advocacy and committee responses in the oversight and budget process last year (spring 2022). But with legislative oversight hearings basically only once a year, unless a committee works hard to add other sessions to the packed schedule, executive branch accountability in general is always uncertain.

Broader topics need attention, too, says Coalition

The Coalition testimony this year also urged committees to work together to help all of the government address topics affecting many agencies, such as  

• Expanded online publication – multiple agencies’ technology and staff need an upgrade to cope with a potential tsunami of required publication of information online (without request), likely to be required by a court case to be decided in the coming months. (For example, the Coalition has highlighted in many prior testimonies the need to meet the costs of inattention at Office of Administrative Hearings, which has failed for years to publish opinions as the law requires but argues it lacked resources.)
• Planning for digital government – The Coalition also discussed at multiple hearings the need for a task force or commission of government, Council, and community to dive deep and propose updates to the open government laws written in days before digital records and virtual meetings, and to consider broad government issues such as capital budget implications of digital records management that can strengthen both efficiency inside government and greatly improve FOIA records retrieval for the public. The Coalition welcomed support from the Office of Open Government.

Budget hearings next

The 63 hearings just concluded set the stage for a second round of hearings on the budget for Fiscal Year 2024, which begins October 1, 2023. The mayor’s proposed FY24 spending plan arrives at the Council on March 22, to be reviewed in committee hearings from March 27 to April 12. The Coalition will again present testimony on budget needs to support satisfactory open government policies. The hearing schedule is here.

After hearings, each committee votes on budget and policy matters for agencies it oversees and on its annual budget report in late April. The Council chairman reconciles conflicts before presenting a unified budget bill and a mammoth addendum with related statutory changes, called the Budget Support Act, for two Council votes in late May and early June.  (See excellent full explainer of DC budget process here by DC Fiscal Policy Institute.)

The budget environment looking ahead is more complex than expected because of a recent glum forecast  from the D.C. chief financial officer. Writing the mayor and Council on February 28, CFO Glen Lee predicted that revenues will drop $464 million in the coming three years (after several years of stimulus funds from the federal government that offset pandemic slowdowns in revenue). The drop in income, property, and sales tax revenue will result from a more pessimistic economic outlook including higher interest rates and also declining property values in a deteriorating real estate market.

Join the Coalition’s “Summit” in Sunshine Week for community discussion on the future of transparency in the District of Columbia

Join community members, government officials, and the Coalition board for refreshments, a review of the past year, and a look ahead for transparency policy and budget. All at the 2023 Open Government Summit Wednesday, March 15, 2023, at 6:00 p.m. Information on the program and registration is here.