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Issue No. 7
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Director of Open Government’s Message
Since 2024 is an election year, government accountability is on the forefront of District of Columbia voters’ minds. The mission of the Office of Open Government (OOG) is to make sure our residents have access to its government. When District voters are well-informed about District government affairs, they can hold elected officials accountable and make educated decisions at the ballot-box. Access to accurate and up-to-date information empowers District voters to engage in civic activities, voice their opinions, and hold their elected officials accountable.
In order for the District to evidence that it is committed to a transparent, open form of government, District agencies should proactively provide information to the public and continually ensure its websites and data are continuously updated to provide the public with accurate information. Public body meetings must be open to the public and accessible. The Office of Open Government is the public’s watchdog to ensure transparency and accountability. Government officials represent the interests and will of the people and they must be transparent about the expenditure of taxpayer dollars and resources.
In the spirit of OOG’s role as D.C. FOIA educators and advisors and Open Meetings Act enforcers, this issue provides updates on D.C. FOIA, public meetings, OOG’s activities, and government transparency news. I hope you enjoy this latest issue of The Opengovist.
In Service,
Niquelle M. Allen, Esq.
Director of Open Government
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OFFICE OF OPEN GOVERNMENT
BOARD OF ETHICS AND
GOVERNMENT ACCOUNTABILITY
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Act A25-0424 - DC Water Critical Infrastructure Freedom of Information Clarification Amendment Act of 2024
On Sep 12, 2024, the Council of the District of Columbia’s Committee on Transportation and the Environment filed the report on Bill 25-424, the “DC Water Critical Infrastructure Freedom of Information Clarification Amendment Act of 2024.” On September 17, 2024, the bill passed first reading unanimously, and on October 1, 2024, passed final reading unanimously. The bill is now with the Mayor, who is expected to sign the measure, after which it will go into the 30-day Congressional review period.
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D.C. Open Government Coalition v. District of Columbia (Case No. 2023- CAB-007251 (D.C. Super. Ct.))
On June 21, 2024, Superior Court Judge Milton Lee directed the parties to “meet and confer” regarding the documents provided by the Office of the Chief Technology Officer (OCTO) to the Plaintiffs, the D.C. Open Government Coalition ("DC OGC"). Plaintiffs argued OCTO did not fulfill their FOIA request when the data provided differed from what they requested. Following the appointment of Judge Lee as Chief Judge of the Superior Court, the case was reassigned to Superior Court Judge Katherine Oler. At a September 13, 2024, status hearing, Judge Oler heard representations from both parties. The parties had been unable to reach an agreement regarding the sufficiency of the documents provided by OCTO. Plaintiffs asked the court to set a briefing schedule for motions for summary judgment. The Government opposed this on the basis that no new issues had been raised since the last time the parties had briefed the issue. On September 17, 2024, the Court ordered the plaintiffs to provide a supplemental brief explaining to the Court why new motions for summary judgment are necessary and specifically, discussing what information the new motions would bring to light that previous briefed motions and the record did not already include. Plaintiff’s supplemental brief was filed on October 2, 2024 and the next hearing is scheduled for November 22, 2024, at 10:30 a.m.
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DC FOIA Litigation Update
Tax Analysts v. District (Case No. 2020-CA-001999-B (D.C. Super. Ct.))
Tax Analysts, a publisher of tax journals; and reporter Aaron Davis, both sued the District under D.C. FOIA after the Office of Tax and Revenue (“OTR”) denied their request for 24 private letter rulings, or PLRs. PLRs respond to circumstances and data submitted by particular taxpayers, but the advice given in them has broader applicability, and so the requester-appellants argued that OTR must still release them after redacting specific details that would identify the underlying taxpayers. Following the filing of Defendants’ Amended Vaughn index on June 18, 2024, a Status Hearing has been scheduled for December 2, 2024.
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It is a common belief that the District’s Open Meetings Act requires public bodies to allow periods of public comment during meetings. And while there are some bodies who are required to have public comment periods, the requirements in those cases come from the bylaws of those bodies or the enabling legislation that created them. The Open Meetings Act (D.C. Official Code § 2-571 et seq.) has no provision requiring public bodies to provide for, or allow, public comment at open meetings. The law does require that “a meeting shall be open to the public,” and “[a] meeting shall be deemed open to the public if: (1) The public is permitted to be physically present; (2) The news media, as defined by § 16-4701, is permitted to be physically present; (3) The meeting is televised; or (4) The public body takes steps reasonably calculated to allow the public to view or hear the meeting while the meeting is taking place, or, if doing so is not technologically feasible, as soon thereafter as reasonably practicable.” (D.C. Official Code § 2-575(a)) If a public body does provide for public comment at a meeting, they must do so within any statutory or regulatory requirements. They may also opt to, where there is not a requirement to do so and, if so, they have the right then to regulate the time allotted and duration of public comments. In that case, however, the provisions for comment should be consistent, fair, and clearly understood by all up-front. This is best accomplished by noticing any comment period in the agenda portion of the public notice for the meeting.
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SUNSHINE MOMENT
District of Columbia
Commemorative Works Committee
The District of Columbia Commemorative Works Committee was established to advise and recommend to the Mayor and Council a disposition of each application to place a commemorative work on public space in the District of Columbia. In honor of the local history of people, places and events deserving commemoration, the District houses monuments, memorials, etc. and embraces new ideas for future commemorative work. The Committee is composed of citizen members appointed by the Mayor who are people who have displayed an active interest or ability in the visual arts, architecture, urban planning, civic design, or history and the following government officials:
- The Director of the Office of Planning;
- The Director of the Department of Parks and Recreation;
- The Chairperson of the Historic Preservation Review Board; and
- The Chairperson of the Commission on the Arts and Humanities.
This Committee meets monthly on the third Friday of each month to review applications for the installation of commemorative works in public spaces and the public is welcome to attend. Applications and comments are reviewed and considered by this body prior to advising the Mayor and the Council, both of which are required to take final action on each proposal submitted.
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There is a requirement of “proactive disclosure” in the D.C. Freedom of Information Act (“D.C. FOIA”). We’re requesting that agencies update and correct information that is required to be “proactively disclosed” by DC FOIA on their websites.
Information required to be made public without a D.C. FOIA request must be “[a]vailable on the Internet or, if a website has not been established by the public body, by other electronic means.” D.C. FOIA regulations also require the agency to list the name of its D.C. FOIA Officer.
The information should be located on an “Open Government and FOIA” page of an agency’s website. Most D.C. agencies utilize a standard template, but so long as the information is present, accessible, and relatively easy for the public to find, there’s no specific format required. We recommend all of this information be located together on a website, and that both “open government” and “freedom of information” (or at least “FOIA”) be in the heading.
Proactive Disclosure Information
(paraphrased from D.C. Official Code § 2-536. Information which must be made public):
Generally, the following categories of information are specifically made public information, and do not require a written request for information:
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The names, salaries, title, and dates of employment of all employees and officers of a public body, (except those exempted by law)
- Administrative staff manuals and instructions to staff (that affect member(s) of the public);
- Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
- Those statements of policy and interpretations of policy, acts, and rules adopted by a public body;
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Correspondence and materials referred to, from, and created by, a public body, relating to any regulatory, supervisory, or enforcement responsibilities of the public body, where the public body is asked to, or does, determine, or state an opinion upon, the rights of the District, the public, or any private party;
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Information in or taken from any account, voucher, or contract dealing with the receipt or expenditure of public or other funds by public bodies; (6A) Budget requests, submissions, and reports available electronically that agencies, boards, and commissions transmit to the Office of the Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by OCFO, including baseline budget submissions and appeals, financial status reports, and strategic plans and performance-based budget submissions;
- The minutes of all proceedings of all public bodies;
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All names and mailing addresses of absentee real property owners and their agents; (8A) All pending applications for building permits and authorized building permits, including the permit file;
- Copies of all records, regardless of form or format, which have been released already to any person under this chapter which, because of the subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records; and
- A general index of the records referred to here, unless they are promptly published and copies offered for sale.
1 DCMR 401.3 requires that “[e]ach agency shall post the name, title, address, telephone number, fax number, and e-mail address of its designated Freedom of Information Officer on its web page.”
Currently, some agencies either lack this information or do not provide all of the requisite information. For example, it’s insufficient to list “FOIA Officer” in lieu of a specific name for a FOIA Officer or acting FOIA Officer.
Additionally, 1 DCMR 413.2 requires that “[e]ach agency shall maintain a file, open to the public, which shall contain copies of all [DC FOIA] letters of denial,” understanding that 1 DCMR 413.3 provides “[w]here the release of the identity of the requester or other identifying details related to the request would constitute a clearly unwarranted invasion of personal privacy, the agency shall delete identifying details from the copies of the documents maintained in the public files,” in other words, redact the personally identifying details.
We’ve prepared a DC FOIA Officer Proactive Disclosure Requirements Checklist that we hope will assist getting D.C. websites caught up and compliant with the proactive disclosure requirements.
Proactive Disclosure Requirements Under DC FOIA Checklist:
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Welcome Attorney Advisor Joan Lelma, Esquire
The Office of Open Government, Board of Ethics and Government Accountability is pleased to announce that Attorney Joan Lelma has joined its staff as an Attorney Advisor. Attorney Lelma has 22 years of legal experience, during which she has worked as an Attorney and a Senior Freedom of Information Act (FOIA)/Privacy Act Specialist (Federal). She has processed complex FOIA requests, including assisting with litigation requests, and provided FOIA and Privacy Act training. Attorney Lelma also has experience in Regulatory and Immigration Law. She was the principal of an immigration law office in Maryland. Attorney Lelma is the holder of a Bachelor of Laws (Hons.) degree from the University of the West Indies, a Legal Education Certificate from Norman Manley Law School, a Master of Laws degree - Public International Law (Merit) from the University of London (Queen Mary), and a Master of Divinity (High Honors) from Oral Roberts University. Also, she is the founder of a non-profit organization that provides spiritual and humanitarian support locally and internationally. We are pleased to have Joan with us.
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Office of Open Government (OOG) Day 3 - Thursday, October 17, 2024
You must register for each in-person session individually, see the schedule HERE. However, one registration will register you for all virtual courses. For the virtual courses, add each virtual course to your calendar once you receive registration emails from WebEx. For ADA accommodations, contact bega.training@dc.gov(link sends e-mail). For technical issues, contact our IT Representative, kevin.brown@dc.
10:00 - 11:00 a.m. FOIA and OMA Introduction (virtual). Niquelle Allen, Director of Open Government.
11:15 - 12:15 p.m. Overview of DC FOIA (virtual). Anthony J Scerbo, OOG Attorney Advisor.
1:30 - 2:30 p.m. Newcomers Guide to the Open Meetings Act (virtual). Brandon Lewis, OOG Attorney Advisor.
2:45 - 3:15 p.m. Parliamentary Procedure (virtual). Nicholas Weil, former OOG Trial Attorney.
3:30 - 4:30 p.m. Overview of Recent OMA and FOIA Advisory Opinions and Advice (virtual). Louis L. Neal, OOG Chief Counsel.
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