At a July 6 hearing of the D.C. Council Committee on Housing and Community Development, the Coalition opposed a bill to exempt Advisory Neighborhood Commissions from the Freedom of Information Act. Board member LaVita Tuff testified that the bill would perpetuate ANCs' blanket exemption from the Open Meetings Act as well.
She noted that Councilmember Anita Bonds, the committee chair, is a co-sponsor of the Strengthening Transparency and Open Access to Government Act of 2016, which Councilmember Grosso and Cheh introduced in January to help D.C. government implement best practices in transparency and accountability. Ms. Tuff said the Advisory Neighborhood Commissions Omnibus Amendment Act of 2016 before the Housing Committee is in direct conflict with the transparency bill and best practices.
Ms. Tuff asked the committee to reject provisions in the ANC omnibus bill that would conflict with the Open Meetings Act and would exclude ANCs from requirements of the Freedom of Information Act. She asked the committee to insert a new provision in the ANC bill to remove the blanket exemption of ANCs from the Open Meetings Act.
According to Ms. Tuff, "this bill would increase the power of ANC commissioners to influence decisions of other public bodies on important policy and regulatory matters. But it would sharply decrease the ability of D.C. residents to oversee their elected representatives.
"The Advisory Neighborhood Commissions Omnibus Amendment Act of 2016 really is a demand by ANCs for increased respect from the Council, and more than 30 other public bodies — executive branch agencies and appointed boards and commissions. It would ensure that public bodies inform elected commissioners of impending actions that could impact neighborhood residents, give commissioners the chance to weigh in on those proposals, and heed the advice commissioners provide. To ensure that other public bodies give “great weight” to commissioners’ views, the bill would empower ANCs to cite other public bodies for “infractions,” which may lead to administrative enforcement actions by the Attorney General."
"While demanding more respect and more power to affect legislative, regulatory and policy decisions the mayor, the Council and numerous other public bodies make, commissioners seek to deny the same measure of respect to the D.C. residents who elected them," Ms. Tuff told the committee. "The bill demands that agencies keep ANCs informed, but seeks a blanket exclusion from the Freedom of Information Act that would effectively deprive neighborhood residents of the ability to oversee their elected representatives. It demands that commissioners be heard by other bodies, but seeks to perpetuate ANCs’ immunity from compliance with the Open Meetings Act.
"It is true that the ANC enabling statute includes open meetings provisions and this bill proposes a few amendments to them. Those provisions were added to increase public access at a time when the District had a very weak open meetings statute. But since the Council, in 2010, enacted the Open Meetings Act, the public access provisions of the ANC statute make ANCs less transparent than any other public body. The statute provides no enforcement procedures under which a neighborhood resident can challenge commissioners who violate notice provisions or who meet and make decisions in secret. There is no appeal to the Office of Open Government or the Superior Court."
"To remedy this problem," Ms. Tuff testified, "the Council should excise the open meetings provisions from the ANC statute and subject ANCs to the Open Meetings Act.
"The bill proposes a blanket exclusion for ANCs from the FOI Act, including its enforcement provisions. It would deny D.C. residents access to documents allowing them to independently evaluate their elected representatives’ performance. In place of FOI Act transparency, the bill would create two opportunities for commissioners to engage in public relations, an annual performance plan and an annual self-evaluation. The Office of Advisory Neighborhood Commissions would make those reports available to the public along with “a publicly accessible file of all Commission recommendations submitted” regarding pending legislation.
"Although, this bill would establish an 'ANC Portal' for tracking constituent services requests, agency notices, and 'resolutions, best practices, events, documents, suggestions, or other material to assist one another in serving District residents,' the public would be denied access to that resource. The bill would vastly increase commissioners’ email storage capacity, to which residents would have no means of access, as they have under FOIA regarding every other public body," Ms. Tuff said. "It includes procedures for applying to ANCs for public-benefit project grants and reporting on grantee performance, and makes stipends available to commissioners for meeting- and training-related activities. But the bill does not provide for public access to grant or stipend documents.
"The bill would create a Communications Division to distribute to D.C. residents information the ANCs 'choose to transmit' to the OANC for display on its website and social media, and to assist ANCs with newsletters, web and social media outlets. It would act as a research service to assist commissioners preparing recommendations to other public bodies regarding legislation, policy, and regulatory matters. But the Communications Division would have no duty to provide documents in response to public records requests, or to affirmatively publish records enumerated in the FOI Act about the operations of ANCs, as every other public body must do.
Ms. Tuff noted that "ANC are the most grass-roots elective bodies in this city. Each serves a relatively small constituency of D.C. residents who voted for a commissioner out of concern about governmental, economic, public safety and social influences that significantly affect their quality of life. Those voters are entitled to watch their elected officials in action and to obtain records related to decisions those officials make. The anti-transparency provisions in this bill would frustrate the public policy underlying the FOI Act and Open Meetings Act." Quoting from the FOI Act, she said "[t]he public policy of the District of Columbia is that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials….”
According to the Coalition, "[m]any ANCs are proud of their FOI Act compliance, and boast that they exceed requirements of the Open Meetings Act, even though they are not bound to do so. They have active websites on which they publish important document, stream audio and video of meetings, and have thriving social media exchanges with constituents.
"Other ANCs historically have met behind closed doors, and with the OANC’s strong support have complain that FOI Act compliance is too burdensome. Some of them, notably in Wards 5 and 6, have been mired for years in internal disputes and contentious relationships with the neighborhoods they purport to serve."
Ms. Tuff said, "[t]he bill before you would exacerbate the problems experienced by the latter group of ANCs and by the unfortunate D.C. residents they serve. The Council should take its lead from the former group of ANCs and the neighborhoods they serve.
"The Council should opt for increased, enforceable ANC transparency by removing the provision in the ANC bill that would exclude ANCs from the definition of a 'public body' in the FOI Act. Instead of perpetuating the unenforceable, ANC-specific notice and open meetings provisions in the ANC statute and elsewhere, the Council should repeal them and the total exemption from the Open Meetings Act for ANCs."
The changes the Coalition proposed "would empower D.C. residents to obtain records from ANCs under the FOI Act, and to attend most meetings under the Open Meetings Act. If commissioners refuse to disclose records, fail to give notice of meetings, or meet in secret for improper purposes, residents would be able to seek redress through the Office of Open Government or the Superior Court."