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Improving Access to Government Information

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Last Update: 01-Jun-2006 15:36

Studies

September 14, 2004
Rep. Henry A. Waxman released Secrecy in the Bush Administration, a comprehensive examination of secrecy in the Bush Administration. The report finds a consistent pattern in the Administration’s actions: laws that are designed to promote public access to information have been undermined, while laws that authorize the government to withhold information or to operate in secret have repeatedly been expanded. The cumulative result is an unprecedented assault on the principle of open government.
http://democrats.reform.house.gov/features/secrecy_report/index.asp

America's Publicly Available Geospatial Information: Does It Pose a Homeland Security Risk?
http://www.rand.org/publications/RB/RB9045/ In the wake of the September 11 attacks, the National Geospatial-Intelligence Agency (NGA) and the Department of the Interior’s U.S. Geological Survey (USGS) asked the RAND Corporation’s Intelligence Policy Center to assess how federal agencies’ publicly accessible geospatial information could be exploited by possible attackers and to develop a framework that would help policymakers evaluate the nature of the potential risks of such information. The RAND study concluded that although publicly accessible geospatial information has the potential to be generally helpful in selecting and locating a target, potential attackers, such as terrorists, are likely to need more reliable, more detailed, and more up-to-date information to plan and carry out a strike than is typically publicly accessible. There is abundant geospatial and nongeospatial information on U.S. critical sites that adversaries can obtain to select and locate targets. In comparison, planning an attack requires detailed and timely information, such as information on the target’s internal features (e.g., control centers), potential vulnerabilities, and current security practices. Here, attackers confront a situation of relative “information scarcity” because such details are not normally made publicly accessible. Thus, attackers are more likely to turn to nongeospatial sources — including direct observation, academic textbooks, trade journals, and individuals familiar with the operations of a particular type of facility — to satisfy their information needs.

Legislation

1 June
Public Access to Information on Federal Contracts and Grants

On April 6, Sens. Tom Coburn (R-OK), Barack Obama (D-IL), Tom Carper (D-DE) and John McCain (R-AZ) introduced the Federal Funding Accountability and Transparency Act (S. 2590). The bill requires the Office of Management and Budget (OMB) to make information on federal contracts and grants publicly accessible through a free, searchable website. The four co-sponsors hope to move the bill either as free-standing legislation or as an amendment, possibly to budget reform legislation expected to move in the Senate this summer.

A competing bill, the " WATCHDOGS” (Website for American Taxpayers to Check and Help Deter Out-of-control Government Spending) Act (S. 2718), has been offered by Sen. John Ensign (R-NV). Under the WATCHDOGS Act, however, grantees are required to report more information than contractors. Other concerns exist with the bill. It lacks the bipartisan support of the Coburn-Obama-Carper-McCain bill.

The necessity of public access to information in this form was apparent in the aftermath of Hurricane Katrina, when tracking government spending on reconstruction proved nearly impossible. At the time, ALA and more than 50 other organizations joined OpenTheGovernment.org in signing a letter calling on President Bush to put all information about Katrina-related spending on the Internet.

[Text of letter ]

Legislation to increase transparency for federal contracts and grants is needed because the public currently lacks access to timely, accurate information about individual contracts, grants, and other forms of government financial assistance. While the Federal Procurement Data System (FPDS)--Next Generation, provides public access to some information on government contracts, it has been widely criticized for its inadequacies. The Census Bureau also provides more complete information about other forms of federal financial assistance through the Federal Assistance Awards Data System (FAADS). Unfortunately, though, the system is not searchable.

The Census Bureau also publishes an annual Consolidated Federal Funds Report (CFFR), which puts together information from the FPDS-NG, FAADS, and other sources of information to provide summary data about federal spending. The CFFR does not provide information about individual contracts and grants, however, so data can not be sorted to reveal trends in government spending or to suggest ways to foster greater government accountability.

S. 2950 (the Federal Funding Accountability and Transparency Act) requires the Office of Management and Budget (OMB) to ensure that the public has no-fee access to a searchable website providing information on federal financial assistance, including federal contracts, by Jan. 1, 2007.

The website would allow the public to search for information about individual contracts, grants, loans, and other forms of financial assistance, including by name of company or organization, amounts, year, the place of performance, congressional districts, federal program, and more. Information would be posted to the website no later than 30 days after the financial award. The website would not contain details about credit card transactions or minor purchases. Beginning Oct. 1, 2007, the bill requires the disclosure of subcontracts and subgrants; there is currently no established method for collecting this information.

The WATCHDOGS Act seems comparable -- it also requires OMB to ensure that there is a searchable website allowing public access to information provided by contractors and grantees about the federal funds they receive -- but the bill imposes more stringent reporting requirements on grantees. For instance, under the bill, federal grantees must disclose the name, address, and social security number of each officer and employee earning more than $50,000 per year, as well as directors of the organization. Contractors need not disclose similar information. Additionally, the bill calls for disclosure of expenditures on various activities including lobbying and, oddly, decorating by federal grantees, but not of contractors’ expenditures in these areas.

The WATCHDOGS bill would federalize a contractor or grantee if the entity receives 10 percent of its business expenditures or annual budget from federal funds. As a result, the contractor or grantee would be subject to the Freedom of Information Act (FOIA) and to laws that apply to government employees regarding travel, such as the allowable per diem for housing and meals or mileage allowances.

For more information on key components of both bills, see OMB Watch's analysis.

19 May 06
Toxics Release Inventory Program

Congress established the Environmental Protection Agency's (EPA) Toxics Release Inventory (TRI) in 1986. Since that time the program has become the nation's primary pollution disclosure program. Communities across the nation rely on the disclosure requirements of the program to get information about the pollution that industrial facilities release into the environment.

In 2005 the EPA proposed substantial reductions in the TRI reporting requirements. The proposed changes include:

• A proposed rule that raises the reporting requirements 10 times, which would allow companies to release 10 times as much pollution before being required to report the release.
• A proposed rule to allow companies to withhold information about highly toxic PBTs including mercury and lead
• A future proposed rule to lower the required reporting frequency from every year to every other year

In May 2005 the Pallone-Solis Toxic Right-To-Know Amendment to the Interior Appropriations Bill was introduced in the House of Representatives. The amendment passed on May 18, 2006, by a wide margin of 231 to 187. The Right to Know Amendment protects public health and safety by preventing the EPA from rolling back reporting requirements to the Toxics Release Inventory (TRI) program. The Amendment prohibits the EPA from spending money to implement the changes listed above to TRI. The Interior Appropriations Bill, among other things, sets EPA funding levels.

ALA thanks library supporters for their efforts to protect the Toxics Release Inventory. Next, there may be additional fights ahead in the Senate and with the EPA, but the victory in the House is a substantial step toward safeguarding the public’s right to know about pollution industrial facilities release into the environment.

• For updates about the status of this issue please visit the Legislative Action Center
• View more information about the impact of this program at the National and local levels, and read public comments opposing the proposed changes: 30kb 113kb
• View the “Resolution on Protecting and Improving Toxics Release Inventory”

11 Apr 06

HR 5112, the “Executive Branch Reform Act of 2006”
On April 6, 2006, House Committee on Government Reform Chairman Tom Davis and Committee Ranking Member Henry Waxman introduced the Executive Branch Reform Act of 2006 (H.R. 5112). The same day the Committee unanimously approved the bill and reported it to the full House.

The legislation would institute landmark reforms of the Executive Branch of the federal government.

The bill would:

• End Secret Meetings Between Lobbyists and Executive Branch Officials
  The legislation requires all political appointees and senior officials in federal agencies and the White House (other than President, the Vice President, and their two chiefs of staff) to report the contacts they have with lobbyists and other private parties seeking to influence official government action. The reports, which will be filed quarterly and maintained on a searchable public database at the Office of Government Ethics, must disclose the dates of meetings, the parties involved, and the subject matters discussed.  
• End the Use of “Pseudo-Classifications”
  The bill bans the use of “pseudo-classifications,” such as “sensitive but unclassified” or “for official use only,” to withhold unclassified information from the public – unless the designations are authorized by statute or regulations The legislation would require the development of regulations and standards governing the use of any information control designations by federal agencies.  
• Provide Protection to National Security Whistleblowers
  The legislation would give these national security personnel whistleblower protections equivalent to those that other federal employees have. Currently, federal employees who work on national security issues have no effective recourse if they are the victims of retaliation after disclosing abuses. 
•  Ban Covert Propaganda
  The bill requires the federal government to disclose its role in funding or disseminating messages within the United States.

The bill would also create a federal ban to prevent lobbyists who enter government from handing out favors to their former clients and bar executives who worked for private contractors from awarding contracts to their former employers when they enter government. 

The bill also closes multiple loopholes in the law governing when government procurement officials can be hired by companies to whom they previously awarded contracts. 

The E-Government Act
On December 17, 2002, President Bush signed the E-Government Act of 2002 into law. A modified version of the legislation unanimously passed the House and Senate on November 15, 2002. This is legislation that the library community has been involved with since its initiation and in support of which Sharon Hogan (2001-2002 Committee on Legislation chair) testified in July 2001 [see pdf of testimony below].

While the legislation changed in a number of ways since then, its passage is a large step in the direction of better federal executive branch management of information over its life-cycle, with public access being a key focus. The legislation creates a number of new opportunities for the public, libraries, and others concerned with information access to participate in the process. The bill also contains important provisions regarding the privacy implications of government information systems, digital divide concerns, and community technology centers.While the bill remained mostly intact as it moved through the House and Senate, there were a few significant changes from the original Senate version, which the Senate passed on June 27, 2002.

The addition of most interest to the library, privacy and public access communities is: Confidential Statistical Information Protection The bill as passed adds a new title, Title V, which ensures that data or information acquired by an agency under a pledge of confidentiality for exclusively statistical purposes shall not 1) be disclosed by an agency in an "identifiable form" (any representation of information that permits the identity of the respondent to be reasonably inferred by either direct or indirect means) to anyone not authorized by this law, nor 2) be used for any non-statistical purpose.The legislation creates a number of new opportunities for the public, libraries, and others concerned with information access to participate in the legislative and governmental processes.The bill also contains important provisions regarding the privacy implications of government information systems, digital divide concerns, and community technology centers.The bill creates an "Office of Electronic Government" (OEG) within OMB. The Administrator of this office is appointed by the President, without the advice and consent of the Senate.At this time of diminishing information about the government and newly restricted government information, the bill appropriately requires the "categorization" of information (e.g. inventorying, indexing, cataloging) and timetables for public access. At numerous points in the legislation, the OEG Administrator and other bodies are directed to consult with non-governmental groups, and libraries are specifically mentioned. One of these bodies is an Interagency Committee on Government Information. Although Committee membership does not include individuals outside government, membership is open to inclusion of representatives from the federal legislative and judicial branches.Please go to the Details of the E-Government Act for some highlights of some of the key provisions from the library community's perspective.

"FASTER FOIA" Act (S. 589)

The Faster FOIA Act Act of 2005 (S. 589), would establish a 16-member Commission on Freedom of Information Act Processing Delays, or the purpose of conducting a study relating to methods to help reduce delays in processing requests submitted to Federal agencies under section 552 of title 5, United States Code (commonly referred to as the `Freedom of Information Act').

It is very non-controversial, has bi-partisan support, and would help to identify solutions for some of the problems with the Freedom of Information Act that lessen its effectiveness as a tool for open and accountable government.

Of the 16 Commissioners, 3 commissioners each would be appointed by Chair and the Ranking Member of the Senate Judiciary Committee, and 3 each by the Chair and Ranking Member of the House Committee on Government Reform.

Among the interesting provisions of the bill, it requires that, for each group of 3:

• (A) at least 1 shall have experience in submitting requests under section 552 of title 5, United States Code, to Federal agencies, such as on behalf of nonprofit research or educational organizations or news media organizations; and
• (B) at least 1 shall have experience in academic research in the fields of library science, information management, or public access to Government information.

It is rare that these representatives of the public are participate directly on government Commissions.

FOIA is an important tool for the public to obtain information about the activities of the U.S. government and to hold it accountable. This bill and the OPEN Government Act (S. 389) would help to make the FOIA a more effective tool.

• Clarifying that the exemption from FOIA applies only to certain submitted records - not "information" (a much broader, and not statutorily-defined, term);
• Preserving whistleblower protections by removing unnecessary criminal penalties;
• Removing civil immunity for companies that voluntarily submit information, and allowing information to be used directly in civil suits by government or private parties;
• Requiring the Department of Homeland Security to report back to Congress about how the provisions have worked, so that Congress can evaluate whether adjustments to the law are needed; and
• Not restricting congressional use or disclosure of voluntarily-submitted critical infrastructure information.

• Allowing for federal government oversight, including the ability to use and share the records within and between agencies;
• Allowing local authorities to apply their own sunshine laws;
• Not preempting any state or local disclosure laws for information obtained outside the Department of Homeland Security; and
• Not restricting the use of such information by state agencies

OPEN Government Act (S. 394)

The “Openness Promotes Effectiveness in our National (OPEN) Government Act of 2005” (S. 394), is an important step toward strengthening FOIA and accountability and doubly important because it has bi-partisanship sponsorship.

A companion bill, HR 867, has been filed by Rep. Lamar Smith, R-TX.

The OPEN Government Act contains more than a dozen substantive provisions, including ones that would

1. Strengthen FOIA and close loopholes by:

• Ensuring that FOIA applies when agency recordkeeping functions are outsourced;
• Establishing a new open government impact statement, by requiring that any future Congressional attempt to create a new FOIA exemption be expressly stated within the text of the legislation;
• Imposing annual reporting requirement on usage of the DHS disclosure exemption for critical infrastructure information;
• Protecting access to FOIA fee waivers for legitimate journalists, regardless of institutional association - including bloggers and other Internet-based journalists; and
• Providing reliable reporting of FOIA performance, by requiring agencies to distinguish between first person requests for personal information and other kinds of requests

2. Help FOIA requestors obtain timely responses by:

• Establishing FOIA hotline services, either by telephone or on the Internet, to enable requestors to track the status of their requests; and
• Creating a new FOIA ombudsman, located at the Administrative Conference of the United States, to review agency FOIA compliance and provide alternatives to litigation

3. Ensure that agencies have strong incentives to act on FOIA requests in timely fashion by:

• Imposing real consequences on federal agencies for missing statutory deadlines; and
• Enhancing the authority of the Office of Special Counsel to take disciplinary action against government officials who arbitrarily and capriciously deny disclosure under FOIA.

4. Provide FOIA officials with the tools they need to ensure that our government remains open and accessible by:

• Improving personnel policies for FOIA officials to enhance agency FOIA performance;
• Examining the need for FOIA awareness training for federal employees -- not just FOIA officers; and
• Determiing appropriate funding levels needed to ensure agency FOIA compliance

Agency Initiatives

Science.gov 2.0

The Science.gov Web portal - the one-stop gateway to reliable Federal science and technology information - provides search capability to 30 databases and 1,700 Web sites. The information at Science.gov is free. No registration is required.Science.gov http://www.science.gov/ allows users to search for information based on subject, rather than by the agency sponsoring it. Visitors to the Web site can access information on an array of science disciplines.Science.gov 2.0, while retaining the content and advances originally unveiled in December 2002, will search its 47 million pages of government R&D results and present the results to patrons in relevancy-ranked order. Science.gov is made possible through the collaboration of the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, and Interior, as well as the Environmental Protection Agency, the Government Printing Office, the National Aeronautics and Space Administration, and the National Science Foundation, with support from the National Archives and Records Administration.

National Archives and Records Administration (NARA) Requests for Comments

The mission of NARA is to ensure, for the citizen and the public servant, for the President, the Congress, and the courts, ready access to essential evidence that documents the rights of American citizens, the actions of Federal officials, and the national experience. As part of its statutory mission, NARA authorizes the disposition of US Government records, establishes policies and procedures for managing these records, and assists Federal agencies in documenting their activities and administering records management programs. The National Archives and Records Administration has undertaken three initiatives to document the current record-keeping and records-use environment in Federal agencies, to use that information to analyze NARA’s records management policies, and to redesign, if necessary, the scheduling and appraisal process. The report on current record-keeping practices is the first of three and appears on the Web at http:/www.nara.gov/records/rmi.html. NARA seeks public comments by Jan. 31, 2002. NARA is also seeking comments from Federal agencies and the public on a petition for rulemaking received from the Public Citizen Litigation Group (Public Citizen). The petition requested that the Archivist amend NARA rules concerning the management, scheduling and preservation of text documents created in electronic form:
http://www.nara.gov/nara/ANPRM_electronic.htmlPublic Citizen Petition to the Archivist to Amend GRS 20 and Electronic Records Regulations

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• Testimony of Sharon Hogan, July 2001