Director's Performance Hearing Testimony

The Director of Open Government provided testimony to the District of Columbia Council Committee on Human Services during the Public Oversight Hearing on the FY20-FY21 Performance of the Board of Ethics and Government Accountability. A recording of the public hearing may be viewed here: (Director Allen begins at 1:05:10)

BEGA's responses to Pre-Hearing Questions may be accessed here:

The Director of Open Government's Testimony is below:

Good Morning, Chairperson Nadeau, members of the Committee on Human Services (the “Committee”), and staff.  I am Niquelle Allen, Director of the Office of Open Government (the “OOG”), an office within the Board of Ethics and Government Accountability (BEGA). It is a pleasure to be here today virtually to update the Committee and the public on the performance of OOG.

I. Introduction

The statutory charge of the Office of Open Government is to advise on compliance with the Freedom of Information Act (FOIA); to advise on the Open Meetings Act (OMA); and to enforce the OMA. Specifically, OOG oversees OMA compliance of 417 boards, commissions, and public bodies; and, advises ninety (90) Independent and Mayoral agencies, the Executive Office of the Mayor, and the Council of the District of Columbia regarding the implementation of FOIA. OOG also assists the public with their submission of FOIA requests. We serve as an advocate for government transparency and continually strive to provide fair, objective, and clear guidance on the application of the OMA and FOIA laws and regulations to District of Columbia government operations. We serve the public interest as strong advocates for an open and transparent government.

I have served as the Director of Open Government since July 2018. In my tenure as Director, I have overseen the growth of OOG and cultivated relationships and increased communication with the Executive Office of the Mayor and government agencies regarding open government issues. I have also established working relationships with the Council of the District of Columbia (the “Council”) and with non-governmental organizations that share OOG’s mission and interests. I look forward to furthering open government issues with the Council Committee on Human Services, in particular.

In FY20 and FY21, OOG’s agenda dealt with the “three Ps”: Pandemic, Police Reform, and Public Schools. OOG made it a priority to ensure that the District of Columbia government remained open, transparent, and accountable to the public despite the existence of the pandemic and the required transition to a virtual environment. The First Amendment protests in May 2020, that resulted from the death of George Floyd, caused by a Minneapolis Police Officer kneeling on his neck for 8 minutes and 46 seconds, called for local police reforms and increased government transparency in policing. OOG responded by actively advocating for reforms in D.C. FOIA aimed to increase police accountability. The District of Columbia Public Charter Schools Boards of Trustees and District of Columbia Public Schools Local School Advisory Teams both recently became subject to the OMA. OOG has worked to ensure those public bodies are in compliance with the OMA. OOG has also worked with Office of the State Superintendent on FOIA compliance.

The discussion that follows summarizes OOG’s activities in FY20 and FY21, in the context of “the three Ps,” and I will discuss each in detail. Then, I will provide a forecast of the agency’s future goals and operational needs.

II. Pandemic

The first “P” that shaped OOG’s agenda and performance was the coronavirus pandemic (the “pandemic”). The pandemic changed the way the government conducted its business in FY20 and currently. OOG executed its mission by ensuring that government operations remain open and transparent during the pandemic

A.  Open Meetings During the Pandemic

In FY20, the OOG launched an initiative, as a result of the coronavirus pandemic, to train public body members on hosting remote meetings in compliance with the OMA. OOG first issued remote meetings advice on its website and on Twitter on March 10, 2020. The advice was a brief statement of the Open Meetings Act’s electronic meeting requirements. Subsequent to that advice, on March 17, 2020, the Mayor of the District of Columbia signed into law the COVID-19 Response Emergency Amendment Act of 2020, which made changes to the requirements of the Open Meetings Act and Freedom of Information Act. On March 17, 2020, OOG issued a Best Practices Memorandum regarding remote meetings during the COVID-19 Public Health Emergency, in conjunction with the Mayor’s Office of Talent and Appointments (MOTA). The Mayor’s Office of General Counsel also contributed to this Memorandum. The document set forth the requirements for OMA compliant electronic meetings, in plain language; and, provided technical guidance for conducting remote meetings. OOG used this document to train over 500 members of Boards and Commissions and Administrative Points of Contact on conducting electronic meetings during the pandemic.

OOG staff also began to regularly attend public body meetings to ensure the remote meetings were being conducted in compliance with the OMA. OOG continues to monitor remote meetings during the public health emergency in FY21. Hosting these trainings and attending meetings have had the result of making DC public bodies aware of the resources provided by OOG and the availability of staff to assist with resolving OMA issues.

B. Pandemic-related Changes to FOIA

There were significant changes made to FOIA, as a result of the pandemic. District government responses to FOIA requests were tolled from March 11, 2020 until January 15, 2021. So, the District of Columbia government was not required to respond to any FOIA requests during this period. Notwithstanding, OOG continued to host FOIA trainings and conduct reviews of FOIA activity, when the tolling period was in effect. In these training sessions and through correspondence with FOIA Officers, OOG encouraged FOIA Officers to respond to FOIA requests, even though the tolling period applied to those requests, to avoid backlogs once the tolling period ended. OOG also monitored agency responses to FOIA requests during this period complied records of agency responses and backlogs for future analysis. OOG also received and responded to complaints about the pandemic-related tolling of FOIA and assisted with the resolution of those issues.

The FOIA Tolling Emergency Amendment Act of 2020 (A23-0555), was signed by the Mayor on December 22, 2020. It expires May 21, 2021. The Act restarted the FOIA response clock as of January 15, 2021, but allows for an extension of FOIA deadlines when the need to conduct an on-site review of records could present a significant risk to health or safety during the pandemic. The January 15, 2021 start date will also ensured that any requests received since March 11, 2020 (the first day of the declared Public Health Emergency) do not immediately come due. OOG made sure D.C. FOIA Officers were informed of these new deadlines by sending out a notice explaining the new requirements. OOG also assisted with ensuring that agency websites, including the FOIA portal where the public may submit FOIA requests, comported with the new FOIA law. OOG will continue this work of advising and monitoring FOIA responses to requests during the pandemic.

III. Police Reform

The second “P” that shaped OOG’s agenda and performance was the call for police reform. OOG spent a considerable amount of time reviewing and recommending changes to the Metropolitan Police Department’s (MPD) body worn camera (BWC) FOIA policies in FY20 and FY21.

A.        FOIA Advisory Opinion on BWCs

OOG conducted an extensive inquiry of MPD’s BWC program in response to a D.C. Open Government Coalition (the “Coalition”) complaint, received by OOG on October 1, 2019. The complaint requested that OOG review of MPD’s BWC redaction policy and determine whether it was based on a proper reading of the balance in FOIA of public access and privacy protection. OOG previously worked with the Coalition on MPD’s redaction rules and their legal basis, and this request was in line with that work. OOG issued a FOIA Advisory Opinion on November 5, 2020.[i] OOG did not find a legal basis for MPD’s current practices respecting BWC video footage and found that changes must be made to comply with FOIA.

OOG’s findings were that to be transparent and in full compliance with FOIA, MPD and the District of Columbia government must implement the following changes to their BWC program: (1) MPD must provide a publicly available fee schedule that provides redaction costs per minute and per individual or object for BWC footage; (2) D.C. FOIA should be amended to require MPD to use redaction technology that provides the least costly commercially available method of redacting BWC recordings, to the extent possible and reasonable; (3) MPD police officers do not have an expectation of privacy when performing their duties in a public place, so MPD’s redaction of police officers’ faces, badge numbers, and other information that would identify the police officers does not have a basis in D.C. FOIA; (4) D.C. FOIA does not support MPD’s redaction of third parties in BWC video footage in every instance; (5) D.C. FOIA exempts from disclosure vehicle license plates to protect personal privacy; however, because the Driver’s Privacy Protection Act prohibits the release of personal identifiable information associated with vehicle license plates, redacting vehicle license plate information is unnecessary; (6) MPD may rely on D.C. FOIA’s personal privacy exemption to redact residential addresses, but the exemption does not apply to business addresses; and (7) the exemptions applicable to BWC video footage applies to audio containing personal private information. The advice provided in this Advisory Opinion is consistent with OOG’s public statements and the testimony OOG provided before the D.C. Council, which I will discuss next.

            B.        OOG’s Testimony During Police Reform Hearings

Since the BWC program was introduced in 2014, OOG has consistently called for rules that ensure public access to this footage, especially in matters where there is a significant public interest.[ii] On October 15, 2020, I testified before the Committee on the Judiciary and Public Safety, chaired by Councilmember Charles Allen, on B23-0882, the “Comprehensive Policing and Justice Reform Amendment Act of 2020.”[iii]

Title B of the legislation sought to improve public access to BWC video. My testimony concerned that portion of the police reform bill and highlighted the following significant barriers to transparency that exist when members of the public and the media request BWC footage through the FOIA process: (1) the over-redaction of the video footage; (2) the need for timely production of the video footage, (3) the high cost associated with processing FOIA requests; and (4) the lack of redaction guidance that explains the cost of the act of redaction in actual work hours (cost per hour). These issues remain unresolved.

OOG will continue to work on these MPD-related issues in FY21 in addition to working with other law enforcement agencies in the District government on other FOIA-related issues.

IV. Public Schools

The third “P” that shaped OOG’s agenda and performance was Public Schools. OOG spent considerable time on open government issues concerning D.C. Public Charter Schools and D.C. Public Schools.

A.        Public Charter Schools Board of Trustees

As you know, the D.C. Council passed the “School Financial Transparency Amendment Act of 2020” as part of the FY 2021 Budget Support Act of 2020. The Act amends the OMA and subjects each public charter School Board of Trustees (the “Trustees”) to the provisions of the OMA. The original draft of the bill included a broad exception to the OMA that would have permitted the Trustees to hold most of their meetings in closed session. OOG advocated for an amendment that clarified that the Trustees could enter a closed session to discuss information received from outside the public body that also meets the statutory definitions of proprietary or trade secrets.[iv] The Council took these recommendations into account in its consideration of the new law.

OOG is now responsible for ensuring that approximately 123 public charter board of trustees’ meetings comply with the OMA. The execution of this increased responsibility has stretched the office’s small staff of three that is now responsible for ensuring OMA compliance for these public bodies and 123 District of Columbia Public Schools (DCPS) Local School Advisory Teams. OOG also worked with the D.C. Public Charter School Board, D.C. Charter School Alliance, and Education Board Partners to train the Trustees and their staff on OMA requirements in FY20. These initial sessions included extensive instruction on the OMA and question and answer sessions. OOG continues this training in FY21.

      B.        District of Columbia Public Schools Local Advisory Teams (LSATs)

OOG issued an Advisory Opinion in FY19 that confirmed LSATs were subject to the OMA.[v] Since issuing that advice, OOG has trained LSATs on OMA compliance. OOG devoted its efforts respecting LSATs to training, and agreed as a result of concerns raised at BEGAs FY19-20 Performance Hearing, to forgo legal action concerning allegations OMA violations by LSATs for a year to provide sufficient time for those public body to master the OMA (“grace period”). When OOG has received complaints in that grace period, we have worked directly with the LSATs to bring them into compliance. OOG’s grace period for LSATs will end in March 2021.

C.        FOIA Compliance Issues

With respect to FOIA and public schools, OOG issued a FOIA Advisory Opinion in August 2020 regarding whether the Office of the State Superintendent of Education (“OSSE”) complied with the mandatory disclosure provisions of D.C. FOIA, that require the government to disclose certain information on the Internet without a FOIA request (Official Code §§ 2-536(a)(3); 2-536(b)).[vi] These provisions specifically require that agencies make final opinions, orders, and other adjudications publicly available on the internet. OOG advised that Letters of Decisions issued by OSSE are Final Opinions and should be published online.

The requirement that agencies provide this information online has been in place since 2001, when D.C. FOIA was amended to require that all Final Opinions (and other records) created on or after November 1, 2001, be made publicly available on the Internet or by other electronic means. Almost 20 years have elapsed since enactment of that FOIA provision. Yet numerous D.C. agencies, most recently OSSE and the Department of Consumer and Regulatory Affairs, have reported to OOG that the funds were never provided to digitize records and provide them online, as the D.C. FOIA statute requires.[vii] If the District is indeed committed to transparency, it is unacceptable that in 20 years we have not funded the digitization and Internet posting of public records that are required to comply with FOIA. I hope this Committee will work with OOG and open government advocates to rectify this longstanding issue.

V. Future Goals and Needs

To further the goals of openness and transparency, and to advance the OOG’s mission, we are focusing on the following initiatives in Fiscal Year 2021:

1.   Establish an Education Cluster in OOG. The legislation that reformed the OMA to add public charter schools boards of trustees as public bodies subject to the OMA created an Attorney Advisor position to serve that group. Internally that position will carry the title “Education Counsel” and that staff member will be the primary point of contact for public charter school and local school advisory team issues.

2.   Monitor and Participate Police Reform related to Body Worn Camera footage. OOG will continue to monitor the execution of police reform in the context of increased access to public records and increased transparency in the production of BWC video footage.

3.   Create a FOIA Training Manual for DC FOIA Officers. There is currently no comprehensive FOIA Training Manual for DC FOIA Officers. OOG plans to draft such a document in FY21.

4.   Produce a training video regarding the Open Meetings Act. Due to the pandemic, OOG was not able to complete this project. We hope to commence filming its training video and completing the project in FY21.

With respect to BEGA’s needs, the agency has a great need for increased office space. We have requested funding for this purpose since FY18. Our current space is not conducive to social distancing, especially with the addition of three new attorneys to BEGA in FY21. BEGA has submitted a budget enhancement request for the FY22 budget to relocate the agency to a suitable location. BEGA has also requested a Paralegal position for OOG. This position is necessary to facilitate the agency’s ability to bring a lawsuit for OMA enforcement in D.C. Superior Court. We respectfully request that this Committee advocates for sufficient funding for this agency’s operation in the FY22 budget.

VI. Conclusion

Thank you, Councilmember Nadeau and members of the Committee, for this opportunity to highlight OOG’s operations and vision for the future.  I am pleased to answer any questions you or members of the Committee may have.