The D.C. Council December 21 passed the Open Meetings Amendment Act of 2010 (Bill 18-716), improving the city's antiquated open meetings statute, but allowing the Council to adopt rules exempting itself from most of the statute's openness provisions.
The bill will create an Open Government Office, an independent agency nominally empowered to oversee and enforce the open meetings statute and the city's Freedom of Information Act. But the Office lacks the tools needed to operate effectively. A budget bill enacted by the Council provides $236,000 to fund the Office for the remainder of the 2011 fiscal year.
Although the bill makes the Council a "public body" covered by the open meetings statute, Council committees are not covered. A provision added at second reading requires the Council's rules to implement provisions applicable to other public bodies. In other words, the rules would have to incorporate the statute's 15 exemptions, limiting the reasons council members could hold secret sessions.
Ten council members voted against an amendment that would have required the Council to fully comply with the statute. Among them was Kwame Brown, who made transparency an issue in his campaign to become Council chairman.
Council committees do not have to comply with the new law, and the rules would not have to require open committee meetings. In the past the Council's rules required public committee hearings and public meetings when a quorum of a committee met. But members Mary Cheh (Ward 3) and Phil Mendelson (At-large) vociferously argued that a quorum of a committee, usually three members, should be allowed to meet without giving notice or meeting in public.
The D.C. Council functions like a state legislature and a municipal governing body. Open meetings laws in 30 states and constitutional provisions in nine more require their state legislatures, like other public bodies, to comply fully with open meetings statutes. Only six states allow their legislatures to make rules for compliance and in five states legislatures are exempt. Every state open meetings statute requires full compliance by municipal and county governing bodies.
The new statute makes it possible for the Council and other public bodies to comply with the open meetings statute by permitting only reporters to attend meetings or by televising them. No state open meeting statute would define a meeting as public merely because it was televised, or would permit a public body to exclude the public if it admitted reporrters. The D.C. Pro Chapter's Freedom of Information Chair, Robert Becker questioned the legality of the provision, which would allow public bodies to restrict public access to important meetings while claiming they held a "public" meeting.
The new Open Government Office will be an independent agency headed by a director appointed to a five-year term by the Mayor with the Council's approval. It can advise agencies and the public on compliance with the open meetings and FOI laws. It is also charged with training government employees and public bodies. The Office can issue advisory opinions and can sue a public body to enforce the open meetings statute, but not the FOI Act.
Becker noted that a provision in the bill bars D.C. residents and business from suing public bodies to enforce the open meetings statute. Because the Open Government Office cannot order public bodies to comply and may, but is not required to sue to compel compliance, it is likely that boards and commissions will continue to hold illegal closed meetings without fear of sanction, he said.
The new statute does not apply to Advisory Neighborhood Commissions, made up of elected commissioners who provide advice to the Council and Executive Branch agencies, including the Zoning Commission, the Alcoholic Beverage Control Board and the Department of Transportation.
At the last minute Cheh, chair of the Council's Government Operations and Environment Committee, decided not to put forward her Open Government Act of 2010 (Bill 18-777), which would have created a more robust Open Government Office and amended the FOI Act. She apparently concluded that the cost of implementing the bill made passage unlikely at a time when the Council is looking for ways to cut the city's budget.
Under Bill 18-777. the Open Government Office would have been charged with establishing procedures for agencies to follow when processing FOI Act requests, issuing advisory opinions interpreting the statute, compiling statistics on agency compliance, training agency employees and the public, providing informal dispute resolution, and issuing rules to implement the FOI Act. Under the bill the Office could order an agency to disclose records, and if the agency refused the Office could file suit in D.C. Superior Court to enforce the order. The bill gave the Office authority to investigate complaints about noncompliance and to subpoena witnesses and documents as part of investigations.
The Chapter, the D.C. Open Government Coalition and the Maryland, Delaware, D.C. Press Association opposed passage of the open meetings bill because it denies the public the right to sue. The Chapter also opposed it because ANCs are excluded.
At year end the bill awaited the Mayor's signature. It will take effect 90 days after it is signed.