Transparency: Change You can Trust
In 2008, we heard a lot about "change." In this 2009 year-end summary, we use another type of "change" to rate the Obama administration's transparency efforts thus far.
Open Government Vision
2009 opened up with a roar when President Obama used his inaugural address to promise a new era of sunlight with regard to government actions. The president followed up the next day with a memo ordering certain top officials to develop an Open Government Directive in 120 days. The directive would establish actions to be taken by agencies in an effort to move toward a government that is transparent, participatory, and collaborative. Although the process for developing the directive was experimental and sometimes rough, and even though it took longer than anticipated, the administration delivered the goods in strong fashion. This and several additional actions by the new administration have begun to forge an expansive vision for open government that is unmatched by previous administrations.
The Open Government Directive earns an impressive one-dollar coin in change for its vision and breadth, setting a clear new direction for government transparency. Shortly after the directive was released, top cabinet agencies followed through with commitments to undertake specific open government initiatives. 2009 has been marked by much talk of "change," and this action represents no mere penny-ante change.
The president called for progress on three main principles – transparency, participation, and collaboration – and the directive delivers on all three with specific requirements and deadlines for all agencies. The directive comprises four main components centered on very simple but important themes – publishing information; creating a culture of openness; improving data quality; and updating policies to allow for greater openness.
The proof will, of course, be in the pudding. The directive provides an ambitious timeline for implementation of its various requirements. The question remains how vigilant the White House will be in pushing agency compliance, how active agencies will be in pursuing the spirit of the directive, and how involved the public will be in holding agencies accountable for robust openness plans.
Nominees Boost Transparency Vision
The administration's vision of a more transparent government was further expressed among the nominees chosen to run key agencies. A number of shiny quarters among Obama's nominees add up to some real change favoring transparency. The Office of Legal Counsel (OLC), plagued by secrecy and controversy during the previous administration, saw the nomination of transparency advocate Dawn Johnsen to lead the embattled office. Johnsen has written articles advocating for restrained executive power and increased government transparency, in particular at OLC. Unfortunately, partisan politics continues to hold up her Senate confirmation.
The nomination and confirmation of David Michaels to head the Occupational Safety and Health Administration (OSHA) also bodes well for open government. Michaels, a former Clinton administration official, has advocated for protecting the transparency and integrity of scientific research used to inform public policy. The selection of Lisa Jackson to head the U.S. Environmental Protection Agency (EPA) was at first greeted with some trepidation by open government advocates concerned about her record heading New Jersey's environmental office. However, Jackson quickly set a startling new tone at EPA – which was one of the most troubled agencies during the Bush administration. Not long after her confirmation, Jackson released memos to all EPA staff calling for a return to operating as if the agency were "in a fishbowl" and to "uphold the values of scientific integrity."
White House appointees have been aggressively advocating for government openness. Just to highlight a few: Cass Sunstein, a controversial nominee to run the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB), has called for expanding the public’s right to know as an academic. He is now in a position to influence policies on public access and dissemination. Vivek Kundra was confirmed as the federal Chief Information Officer and head of e-government operations at OMB. Like a ball afire, Kundra has pushed for a new vision on use of information technologies in the government. He quickly added an Information Technology Dashboard on USAspending.gov to bring greater clarity and accountability to how billions of dollars are spent. He also created Data.gov, a new website that provides access to databases from different agencies in government. His vision of “cloud computing” is refreshing and exciting.
Outside of OMB is a host of energized White House staff, including Aneesh Chopra, the federal Chief Technology Officer, who works out of the Office of Science and Technology Policy (OSTP). Chopra shares the policy vision that Kundra has and has the technology chops to make it happen. Beth Noveck, also in OSTP, is an academic with vision on how to use new media to make government more interactive and participatory. Norm Eisen, a special counsel to the president, has already been working tirelessly behind the scenes to put in place the strongest of government-wide policies for openness.
Opening the White House
Candidate Obama pledged to run “the most open and transparent administration in history,” and the White House transparency is a very public example of putting that promise into action. Not all of the change has gotten delivered at the same time, but improvements have continued to pay off like a busted slot machine. And increased openness came to the White House itself. The official White House website was rebuilt, utilizing an open-source Drupal platform, and with many new features, including a blog; the text of signed legislation, Executive Orders, and memoranda; webcasts of presidential speeches and some meetings; and a link to the White House photo stream hosted by Flickr. During the campaign, Obama promised to post all non-emergency legislation online five days prior to signing it for public comment; this fell by the wayside in the early weeks of the administration, but legislation awaiting the president’s signature is now available at whitehouse.gov.
The White House also made progress on transparency policies. On his first full day in office, President Obama issued Executive Order 13489, which revoked a President Bush order (Executive Order 13233) that allowed former presidents and vice presidents (and their representatives, if they are deceased) to veto the release of any of their presidential materials. Obama's order makes clear that only the president or a former president (not a vice president) can make a claim of executive privilege, but that the government is not bound by such a claim if it is made. Obama’s actions, in essence, return implementation of the Presidential Records Act to how things worked prior to the Bush administration. However, as long as no legislation is passed by Congress with regard to this issue, any future president is free to issue yet another order undoing Obama’s order.
Transparency on White House visitor logs is an example of change that took a while to happen, but it ultimately did happen – and was widely perceived as monumental. Early in the Obama administration, the White House continued the Bush administration’s policy of withholding visitor logs, and a lawsuit was initiated by Citizens for Responsibility and Ethics in Washington (CREW) following denial of a FOIA request for the logs. Then the administration agreed to release its visitor logs from the start of the administration for those specifically requested. In December, the administration will disclose all visitor logs, except those dealing with national security and other key matters, for Sept. 15 onwards.
Also on his first full day in office, President Obama issued orders for the Attorney General to draft a new FOIA memorandum. When released, the memo was much like the earlier one used by the Clinton administration, including a similar foreseeable harm clause; however, it included more powerful language, backing it with enforcement and incentive mechanisms. Later, the Justice Department clarified the policy as it pertained to several exemptions and reinforced the idea that FOIA employees should make efforts to exercise greater discretionary disclosure. Taking an additional step toward implementation of this bold policy, the administration appointed Miriam Nisbett as director of a new office dedicated to resolving FOIA disputes.
This policy was a significant shift from the Bush administration’s instructions that when they are in doubt or have a reasonable legal justification, agencies should withhold information from disclosure. Unfortunately, it is taking time for these new Obama policies to swim against the current of a long culture of entrenched secrecy. The new policies appear to have made little to no change in the agencies’ litigation of FOIA lawsuits brought by public interest groups. Without follow-through, FOIA falls short of the full dollar mark. Still, it seems that the administration is usually willing to compromise on stickier subjects. For instance, it will not recognize White House visitor logs as being subject to FOIA, but it has made agreements to release the logs on a limited basis.
Early on, the Obama administration initiated a review into the use of the state secrets privilege and of pending cases in which the privilege had been invoked. Formally established by the 1953 Supreme Court decision in United States v. Reynolds, the state secrets privilege is an evidentiary privilege that permits the executive branch to withhold evidence at civil trial if the release of that information would prove detrimental to national security. Historically, its use has been limited; the privilege was invoked only a handful of times for the first several decades after Reynolds, and then only to exclude specific pieces of evidence. During the George W. Bush administration, the privilege was used with both unprecedented frequency and scope, as the administration used the privilege to argue that entire cases should be thrown out because the subject matter of the case – frequently extraordinary rendition, warrantless wiretapping, or other components of the “war on terror” – was itself a state secret. Unfortunately, all the while the Obama administration was reviewing the privilege, it was also repeatedly reiterating the broad state secrets claims of the Bush administration in every case still at trial.
In September, the Obama administration formally announced its public policy governing the assertion of the privilege, a first for any administration. In this memorandum, the Attorney General announced that the privilege would only be invoked “to the extent necessary to protect against the risk of significant harm to national security,” and only after an extensive internal review. Prior to invocation, the department or agency requesting a claim needs to submit a detailed justification to the Department of Justice (DOJ), subject to the review and recommendation for further action of the relevant Assistant Attorney General. A review committee of senior DOJ officials is established to review his or her recommendation and to make a recommendation of their own to the Deputy Attorney General, who in turn makes his or her recommendation to the Attorney General for an ultimate decision. Many find this policy to be a strong first step in the right direction, but the policy failed to address several key issues, most especially judicial oversight. Public interest groups have asked for provisions that allow in camera review by judges, discovery of non-privileged material, and creation of substitute materials. Without clear judicial oversight commitments, the new policy will continue to shortchange the public and courts.
Legislation remains another major piece of change missing from this equation to ensure that the privilege is invoked uniformly and properly from administration to administration and is given proper scrutiny by the courts. A strong bill was recently passed out of the House Judiciary Committee, which would strengthen the hand of the courts by applying tools used in criminal cases under the Classified Information Protection Act and ensure that justice is done while protecting legitimately classified information. However, neither this bill, nor the Senate counterpart still in committee, is likely to move any further in 2009.
A good deal of "change" happened in 2009 regarding efforts to pass comprehensive chemical facility security legislation. The Chemical and Water Security Act of 2009 (H.R. 2868) passed the House in November. This action earns a respectable fifty cents of change – halfway to becoming law. More than eight years after the September 2001 terrorist attacks, the action sends to the Senate legislation that seeks to greatly reduce the risks of terrorist attacks on chemical plants and water treatment facilities. Such facilities remain vulnerable to terrorist attacks that could release plumes of deadly poison gas to drift over U.S. cities and towns. The legislation is a compromise with the chemical industry and its supporters in Congress. Covered plants would be required to assess what safer and more secure alternative technologies are available and how difficult it would be for a plant to convert. By eliminating the unnecessary presence of toxic chemicals or dangerous processes, facilities could remove themselves from a terrorist's list of potential targets. The bill also gives the government the authority to require the riskiest facilities to implement the safer technologies that the facilities identify – but only under certain circumstances. Among other conditions, if converting to safer processes is not economically feasible, then the plant would not be required to convert.
The chemical security legislation still grants the Department of Homeland Security (DHS) and the EPA the authority to conceal information about the program, such as what facilities are covered and whether they are in compliance, thus hurting the public's ability to hold the facilities and the government accountable for following the law. Advocates will continue pushing for stronger accountability measures in the Senate version of the legislation.
Since taking office, the Obama administration has structured its electronic government changes along its three themes of open government: participation, collaboration, and transparency. The administration’s focus on transparency was heavily demonstrated by its pursuits in expanding federal information technology systems. Going beyond the Web 2.0 infrastructure of social media tools, the administration focused on using the web as a tool to push out data to the public. Although this focused largely on Recovery Act spending, the federal government quickly launched an IT dashboard and Data.gov to release other kinds of data to the public in machine-readable formats. Further, we have recently seen this have a trickle-down effect on states and local governments. States like Massachusetts and cities like New York and San Francisco have launched similar programs to make data on transportation, health, environment, and education freely available.
Participation efforts have included engaging the public in town hall events with Facebook and Twitter; indeed, some of the administration's most notable efforts were those that focused on using social media tools as a way to involve the public in policymaking processes. The largest of these was the solicitation process for recommendations on an Open Government Directive to set the transparency goals of all government agencies. The three-phased process was a first attempt and a learning process not without its problems. Becoming more participatory and collaborative meant having to deal with those who would otherwise attempt to derail the policy discussion with off-topic issues or accusations. The administration used a similar process to collect public input on declassification policy, and we eagerly await the results.
Reforming Information Controls: CUI
In 2009, the Obama administration created an inter-agency task force to investigate if there was any change hiding under the Controlled Unclassified Information (CUI) policies established by the Bush administration. As highlighted by OMB Watch in our report, Controlled Unclassified Information: Recommendations for Information Control Reform, the new CUI regime, intended to replace over 100 disparate Sensitive But Unclassified (SBU) information control labels, was greatly in need of change. The Bush efforts focused solely on facilitating information sharing – particularly terrorism-related information – between government agencies, but there was almost no focus on information management or disclosure issues. We made a series of recommendations for reform of the existing CUI framework, including maximizing disclosure to the public by prohibiting reliance on control labels in making FOIA determinations, establishing time limits on labels, and embracing oversight to ensure reform efforts do not cause greater overuse of control labels.
The CUI task force sent its forty recommendations to the administration in August and publicly released them on Dec. 15. Among the recommendations included are the expansion of the CUI framework to apply to all SBU information across government, not just terrorism-related information; a series of improvements to the procedures for designation, identification, marking, safeguarding, dissemination, life cycle, training, accountability, standardization, and oversight provisions of the framework; a timeline and resource allocation strategy for implementation; and measures to track progress made toward implementation. The recommendations are half way to the policy change CUI needs. If these recommendations move beyond a policy proposal, and are actually implemented in full, it will be a significant improvement to the status quo.
Environmental and Public Health Data
Several smaller actions in 2009 concerning EPA and access to environmental data are gradually adding up to a pocketful of "change." The bedrock environmental right-to-know program, the Toxics Release Inventory (TRI), experienced a number of advances. In March, after two years of being subject to a Bush-era reporting rule that weakened the public's right to know, Congress restored the previous reporting rule, ensuring that detailed information on pollution continues to be provided to the public. EPA followed the restoration of TRI with the earliest public release of the data in the history of the program and announced the development of several new tools to analyze the data.
Beyond TRI, EPA also finalized its plan to collect and report greenhouse gas emissions data from facilities in most economic sectors. The data will be used to inform climate change policies at the state and federal level. Following 2008's disastrous spill of toxic coal ash – the residue from burning coal to produce electricity – from an impoundment in Kingston, TN, EPA surveyed coal-burning power plants nationwide to identify the coal ash impoundments that could pose a similar threat of failure. After overriding complaints from the DHS, EPA published the information online.
The record on the administration’s position on national security classification and declassification has been mixed at best, with the beginnings of work in a few places that haven’t added up to any major change yet. Classification and declassification has been a major topic of discussion in the administration during its first year but remains a subject that it has not fully tackled. In May, the administration convened a panel to develop recommendations to the president for addressing this issue. To date, the administration has not released the recommendations, even though they were due in late summer.
While drafts of its executive order have been leaked, nothing is final. These leaked versions seem to call for a National Declassification Center that was also called for by the Public Interest Declassification Board. On the other hand, the administration has come under fire for giving into intelligence agencies by overturning a previous executive order requirement that they declassify historical national security records that are at least 25 years old.
At the beginning of 2009, the administration appointed Adm. Dennis Blair as the Director of National Intelligence. Blair testified during his confirmation hearing that too much secrecy is an impediment to security and called for a smarter classification system that started by shifting the culture of secrecy in the intelligence community. Further, the administration released several memoranda written by the OLC under Bush that gave binding legal advice to agencies on the president’s authority over detainees, the use of military force against terrorists, military detention of U.S. citizens, and the power to transfer captured suspects to foreign custody. On the other hand, it worked effectively with Congress to exempt photographs of detainees being tortured while in U.S. custody from FOIA. Also, a September report card on secrecy by OpenTheGovernment.org that primarily focused on 2008 noted that while original classification decisions decreased for the first time since 1999, the proportion of declassification spending to that of classification remained grossly disproportionate.
Despite the change concerning access to some types of environmental data, even searching the sofa cushions turned up no change regarding the public availability of other key types of information. These gaps in the data available to the public are made all the more evident as other sets of data are disclosed and the public seeks to link various types of information. One of the obstacles to disclosing information – especially information about the environmental and public health risks of commercial chemicals – is the excessive use of trade secrets claims. Businesses that submit information to regulatory agencies like EPA can label much of the information as proprietary, and the government will conceal that information from the public. Many public interest groups have decried the unavailability of data needed to identify the risks posed by the more than 80,000 chemicals now in commerce in the United States. Information on toxic chemicals used in natural gas drilling, which are linked to the contamination of drinking water wells across the country, are also concealed from the public as trade secrets. Legislation introduced this year would require disclosing the identities of these drilling chemicals. Information about the health risks of nanomaterials – the microscopic engineered particles that are finding their way into hundreds of consumer products – is hard to come by. EPA has announced its intentions to step up its data collection regarding certain nanoscale materials in 2010, but for now, lack of research and the industry's use of the trade secrets barrier have kept the public in the dark about the potential risks from this growing technology.
The data gaps extend beyond environmental and public health data to fiscal items such as the Recovery Act. For the first time, there is timely and transparent reporting by recipients of federal Recovery Act funds and their sub-recipients on how the money is being used and how many jobs are being created or saved. This new model expands the opportunities for presenting information to the public about government spending. However, key elements of the contract to create the public website, www.recovery.gov, remain hidden, even after repeated FOIA requests.
Also, the new Federal Awardee Performance and Integrity Information System, required by the FY 2009 National Defense Authorization Act, is intended to help contracting officials make better award determinations by providing timely information on the honesty and reliability of contractors. However, among other problems, the public does not have the ability to access this database, and the contractor data collected by the government need extensive revision and standardization before they can be useful to contracting officials.