D.C. Open Meetings Amendment Act of 2010
A User’s Guide
“The public policy of the District is that all persons are entitled to full and complete information regarding the affairs of government and the actions of those who represent them.”(D.C. Code § 2-571)
Under Washington D.C.’s new Open Meetings Act (created by the Open Meetings Amendment Act of 2010), meetings of public bodies must be open to the public. A meeting is open to the public if either the public or news media is allowed to be physically present, or the meeting is televised. (§ 2-574(a)) The Act “shall be construed broadly to maximize public access to meetings,” and “exceptions shall be construed narrowly . . . .” (§ 2-572) (See last section for full references and sources.)
Meetings of Public Bodies
For a meeting to qualify as one to which the Act applies, a quorum of the body must be present, and those members must be considering, conducting, or advising on public business. Informal and emergency meetings qualify. A chance meeting, social gathering, or press conference, however, does not qualify. (§ 2-573(1))
The Act covers meetings that take place electronically or by telephone. (§ 2-573(1)) Email exchanges do not constitute a meeting under the Act, but such exchanges may be public under the D.C. Freedom of Information Act.
Covered public bodies
Every government council, board, commission, or similar entity is subject to the Act. (§ 2-573(3)) The D.C. Council is a public body, but public access is governed by its rules. (See below.)
Government agency staff meetings are not covered. However, if an appointed board or commission supervises an agency, the board or commission is. For example, the Alcoholic Beverage Control Board is covered, but the Alcoholic Beverage Regulatory Administration is not, unless the staff is meeting with the Board. Bodies that are not covered include (§ 2-573(3)):
· Advisory Neighborhood Commissions (discussed below)
· D.C. courts
· Governing bodies of public charter schools
· The mayor’s cabinet
The legislation sets out notice and meeting procedures that must be followed. (§§ 2-575 & 576).
When meetings of public bodies can be closed
A meeting, or part of a meeting, can be closed whenever a law or court order requires it, or whenever the purpose of the meeting is:
· To discuss with staff or negotiating agents matters related to a contract negotiation, but only if an open meeting would adversely affect the public body’s bargaining position.
· To discuss with staff or negotiating agents matters related to negotiating incentives for businesses or industries regarding location or expansion.
· To obtain legal advice from an attorney. The mere presence of an attorney at a meeting, however, is not a ground for closure.
· Planning, discussing, or conducting specific collective bargaining negotiations.
· Preparation, administration, or grading of scholastic, licensing, or qualifying examinations.
· To prevent premature disclosure of an honorary degree, scholarship, prize or similar award.
· To discuss, take action, or receive briefings about potential terrorist activities or other substantial dangers to public health and safety, but only if disclosure of this information would endanger the public. If a meeting is closed for this reason, a record of the closed session must be made public when doing so would not endanger the public.
· To discuss disciplinary matters.
· To discuss matters relating to the employment of government employees, appointees, or officials.
· To discuss trade secrets and commercial or financial information obtained from outside the government, but only if disclosure would substantially harm the competitive position of the information’s owner.
· To train and develop members of a public body and staff.
· To deliberate upon a decision in an adjudication action or proceeding, but only if the public body has quasi-judicial functions.
· To discuss or hear about an investigation of alleged criminal or civil misconduct, but only if disclosure would harm an ongoing investigation.
When a meeting is closed for a particular reason, no other matters may be discussed. (§ 402-274(d))
Procedures for Closing a Meeting
Before closing a meeting for any reason, the public body must meet in a public session, and a majority must vote in favor of closure. The subject to be discussed, reasons for closure, and results of the vote to close the meeting must be announced and made publicly available before the closed meeting begins. (§ 2-274(c))
What to do if a meeting is closed in violation of the Act
The Open Meetings Amendment Act of 2010 created an Open Government Office (OGO) and made it the only entity with the authority to bring a lawsuit against the public body before or after the offending meeting. (§ 2-578(b)) As of May 2011, that Office has not been established. Therefore, no official mechanism exists to enforce the Open Meetings Act. (The OGO is established by § 2-571.) However, should you believe that a meeting has been closed in contravention of the Act, you should bring that to the attention of:
- The Attorney General of the District of Columbia (email@example.com), who has general responsibility for advising agencies regarding their legal compliance requirements.
- The D.C. Open Government Coalition, which maintains a compilation of violations to assist the Council in overseeing implementation of the Act. (http://www.dcogc.org/node/add/access-complaint)
- The Office of Councilmember Mary Cheh (firstname.lastname@example.org), whose committee approved the Act, and the Office of Councilmember Muriel Bowser (email@example.com), who introduced it in 2010.
If the OGO brings a successful lawsuit, a court can prohibit the public body from closing future meetings, or order the public body to disclose the record of the closed meeting. (§ 2-578(c))
If the court finds that an official action was taken at the illegally closed meeting, it may order an appropriate remedy, which may include voiding any official action taken in the meeting. (§ 2-578(d))
Accessing records of past meetings
Where feasible, all public meetings must be recorded and, where not feasible, detailed minutes must be kept. Meeting minutes must be publicly available within three days of the meeting, and the full record must be available within seven days of the meeting. (§ 2-577)
D.C. Council Meetings
The D.C. Council is a covered public body, but the Act gives it authority to enact its own rules implementing the Act’s open meetings policy. Those rules cannot modify the definition of “meeting” under the Act or what it means for a meeting to be open. Traditionally, the Council adopts operating rules at the beginning of each two-year Council period. Unless and until it adopts rules, the Open Meetings Act governs meetings of the Council as it does meetings of other public bodies. (§ 2-574(f))
Advisory Neighborhood Commission Meetings
This Act does not cover meetings of Advisory Neighborhood Commissions (ANCs). A committee of the D.C. Council has until May 30, 2011, however, to submit a report to the Council presenting recommendations on whether this Act should apply to ANCs.
Even if the Council does not extend the Act’s coverage to ANCs, their authorizing statute requires that their meetings be open unless personnel or legal matters are discussed. (See the Advisory Neighborhood Councils Act of 1975 (D.C. Code 1-309.11), as amended by § 3 of the Open Meetings Amendment Act of 2010.)
The enrolled original text of the Open Meetings Amendment Act of 2010 can be found at http://www.dccouncil.washington.dc.us/images/00001/20110105123634.pdf.
The legislative history is set out at http://www.dccouncil.washington.dc.us/lims/viewact.aspx.
The Committee Report and Summary of Public Hearing can be found at http://www.dccouncil.washington.dc.us/images/00001/20110113114039.pdf.
The text of the statute (D.C. Code) is posted at http://www.dcogc.org/node/1266.
The D.C. Open Government Coalition
The D.C. Open Government Coalition seeks to enhance the public’s access to government information and ensure the transparency of government operations of the District of Columbia. We believe that transparency promotes civic engagement and is critical to responsive and accountable government. We strive to improve the processes by which the public gains access to government records and proceedings, and to educate the public and government officials about the principles and benefits of open government in a democratic society. Visit our website at www.dcogc.org.
June 2, 2011