Two transparency bills before D.C. Council December 7

   The D.C. City Council will consider two bills Tuesday to create an Open Government Office, amend the city’s Freedom of Information Act, and overhaul the antiquated open meetings statute. Late Thursday the Government Operations & Environment Committee voted unanimously to send the Open Government Act of 2010 and the Open Meetings Amendment Act of 2010 to the floor.

   If it passes, Open Government Act will, within one year, create an independent agency to oversee and enforce the FOI Act and the open meetings statute. It includes amendments to the FOI Act to facilitate oversight.

   Although the Open Meetings Amendment Act would significantly improve public access to appointed boards and commissions, Robert Becker, the chapter's Freedom of Information Chair and its representative on the board of the D.C. Open Government Coalition, said it includes several flaws. Under the Committee version of Bill 18-716 the City Council is a public body covered by the statute, but the Council may adopt rules defining how it will comply. The rules could allow the Council to give shorter notice to the public of upcoming meetings than other public bodies must give. The rules could allow the council to hold secret sessions to discuss matters other public bodies would have to discuss in open session.

   Advisory Neighborhood Commissions are not public bodies under the bill. They would operate under vague open meetings provisions in the statute that created ANCs. In the past the Corporation Counsel, now the Attorney General, ruled that ANCs only have to meet in public to take votes, but could meet in secret to discuss matters on which members would vote.

   Another flaw in the bill, Becker said, denies the public the ability to sue public bodies that violate the open meetings statute. Only the Open Government Office can sue. It has discretion to sue, but is not required to do so in response to a citizen complaint.

   The bill includes 15 exemptions permitting public bodies to hold closed sessions. Among them are exemptions to discuss and instruct staff on contract negotiations related to real estate, purchase of goods and services, economic development incentives, and labor contracts; when ordered to do so by a court, and to protect the attorney-client privilege. Meetings could be closed for discussions regarding scholastic, licensing and qualifying exams, disciplinary actions, appointments and employment, and public safety and terrorism.

   Several exemptions that should be deleted or modified, according to Becker. Among them is the exemption allowing closed deliberations by public bodies performing adjudicatory and quasi-judicial functions. He believes such deliberations provide the public valuable insight into why a body reached particular decisions, and should be closed only when necessary to protect personal privacy or similar interests. According to Becker, an exemption permitting secret deliberations whenever the matter involves trade secrets, confidential and proprietary information is overbroad and subject to abuse, as is the exemption for training and development sessions attended by members of public bodies and staff. The exemption for discussion of planned or ongoing criminal and civil investigations is duplicative of the exemption for attorney-client communications, and is likely to be abused, Becker believes.

   The version of the bill the Council will consider is changed from the version reported on two weeks ago. For more information click here. To read the bills on which the Council will vote and committee reports on them click the links below.

   Becker said SPJ members who believe the open meetings bill should fully include the Council and ANCs, that D.C. residents should be able to sue to gain access to meetings, and that the exemptions should be narrower should contact City Council members.

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