In a hearing before the D.C. Council Government Operations Committee Sept. 30, 2014, Robert Becker, the D.C. Pro Chapter freedom of information committee chair, testified in support of two bills that would require Advisory Neighborhood Commissions, and other District boards and commissions to provide more information to the public about their operations.
The two bills before you today simultaneously are very important and very mundane. They are very important because the Council, by passing them, and the Mayor, by signing them into law, can send a strong signal. Government of the people, by the people, and for the people of D.C. requires that every public body be open and accessible to the people of the District.
These bills are mundane because, at best, they represent incremental improvements in public access. Furthermore, D.C. Code § 2-536, the affirmative disclosure provision in the Freedom of Information Act, already requires online publication of most of the information these bills enumerate.
Council Member Cheh’s bill addresses a long-standing concern of the SPJ chapter and the Open Government Coalition, bringing ANCs into compliance with the FOI Act and open meetings provisions of the ANC enabling statute.
Some ANCs are very open and welcoming to the people who elected their commissioners. Other ANCs and the Office of Advisory Neighborhood Commissions, by contrast, have ardently opposed transparency legislation that would have applied to them. In 2006 and 2010 they lobbied against Open Meetings Act amendments that would have treated ANCs no differently than every other board and commission in the city. When this committee held FOI Act oversight hearings and roundtables, those commissions testified that ANCs should be exempt.
Their justifications for opposing open-government laws: lack of decision-making authority, lack of resources to comply, and fear of being sued by constituents or other individuals denied access. Their reasoning:
- Because ANCs merely advise the Council, the Alcoholic Beverage Regulatory Agency, the Zoning Board and other regulatory bodies, commissioners have no power to effect change in the community. Therefore, ANC actions should not be subjected to the same level of citizen oversight as the bodies that act on their recommendations.
- ANC commissioners are part-time “volunteers,” who often do not have paid staff. They do not have time to locate documents responsive to FOI Act requests, duplicate them, and respond to requesters. Neighborhood emergencies arise, and commissioners, acting as single-member districts or as a group, must be able to address them without the formality of providing advance notice or agendas. Requiring them to make available minutes or recordings of meetings would be too heavy a burden.
- Because ANC commissioners often address issues that divide communities, requiring commissioners to comply with the Open Meetings Act would pose a risk of disorderly conduct at meetings by residents unhappy with commission decisions. More critical, they say, is the possibility that disgruntled residents or parties to commission actions might sue over minor Open Meetings Act violations.
- As you consider Councilmember Cheh’s bill, the most important thing you should remember is that ANC commissioners are not merely part-time “volunteers.” They chose to run for office, got elected, and in doing so took on the obligation to represent their constituents. Many commissioners use service on their ANCs as a stepping-stone to running for a Council seat or winning appointment to a board or commission that has power to effect change in the community.
Similarly, it is important to ask why, if commissioners have so little authority to affect Council and agency decisions, these commissioners are so fearful of being sued. In reality, ANC recommendations carry considerable weight in deliberations of decision-making bodies. For that reason, D.C. voters have a critical interest in understanding how and why their ANC commissioners arrived at the recommendations presented to the Council and agencies as the will of the affected community.
Most, if not all, of the information Councilmember Cheh’s bill cites falls into categories required by § 2-536 to be published. Nonetheless, that bill is important because many ANCs are not in compliance with the statute now, and passage would send a strong message that transparency is their duty.
The bill addresses opponents’ concerns about lack of resources by unambiguously directing the Office of Advisory Neighborhood Commissions to do the work for commissioners. The Office can call on the Office of the Chief Technology Officer for assistance to set up a common Web portal serving residents in every ANC. All the ANCs need do to comply is provide bylaws, meeting schedules, notices, minutes and other documents. That is a very small imposition on commissioners’ time and energy.
Before moving on to Councilmember Grosso’s bill, I would like to suggest an amendment to Bill 20-471. Four years after passing the Open Meetings Act, it is time for the Council to revisit its decision to give ANCs a blanket exemption. Several ANCs are complying with Open Meetings Act requirements, despite the exemption. They proudly trumpet their transparency and accessibility. To my knowledge none has reported adverse consequences or frivolous, harassing law suits. By contrast, ANCs that have excluded the public and refused to respond to FOI Act requests, for example ANC 5B, have suffered court imposed sanctions for their actions. As the most grass-roots elected bodies in the city — bodies with which average residents have the most direct contact, bodies that have a significant impact on neighborhood life — ANCs should be as open to the public as every other elected or appointed public body in the District.
Bill 20-660, like Bill 20-471, enumerates records the FOI Act requires to be published online. Like ANCs, many boards and commissions have spotty records of compliance. It is likely that their failure to comply is due to lack of training. Traci Hughes, director of the Office of Open Government, has been working hard to educate agencies, boards and commissions about their obligations under the FOI and Open Meetings acts. It is to be hoped her efforts will reverse the trend.
But Councilmember Grosso’s bill, coupled with events of the past year or so, prompt another plea for Council action to amend the Open Meetings Act. That statute now requires public bodies to meet in public, except when addressing exempt subjects. But it specifically makes the statute inapplicable to meeting held by committees of public bodies, unless a quorum of the entire body is present. Not only can committees meet in secret, they are not required to publish notices and agendas of upcoming meetings, minutes or votes taken.
For example. last year, the Mayor appointed a large task force to make recommendations for redeveloping the Walter Reed site. That task force has held a few public meetings when it convened as a whole. But committees studying specific aspects of the proposed redevelopment often have excluded neighborhood residents from meetings with invited guests, some of whom reportedly stood to benefit from future task force recommendations. Even if committee members’ intentions were honorable, that lack of transparency undoubtedly breeds suspicion in the community. Residents may never learn who was present, what was discussed, what options were on the table, or why one option was chosen over another. When all or most of the real work of the public body was done in committee, it is not enough that the task force aired final plans, took public comment, and voted at a public meeting.
I understand the Council’s concern about having to give notice every time its members gather in small groups to discuss important issues. But the Council, using its rules, sets limits on how the Open Meetings Act applies to itself. Boards, commissions and task forces are unlike the Council. Their members don’t all work in one building most of every business day.
Requiring their committees to comply with the statute certainly would be less convenient for members, but would not impose a large burden on them. On the other hand, the benefits in community trust derived from letting the public in would be enormous.
We urge you to augment Councilmember Cheh’s bill with a provision excising the ANC exemption from the Open Meetings Act, and Councilmember Grosso’s bill with an amendment making the statute applicable to board, commission and task force committees. We urge you to bring both bills to the Council for enactment.