Open Government Prospects in 2014

by Sean Moulton, 1/14/2014

As we look ahead through the new year, a number of major open government issues will almost certainly become the center of policy debates and offer opportunities for improving transparency. This article presents the top open government issues we believe are most likely to garner the most time and attention of Washington policymakers. And, since every year offers surprises, we also offer a quick list of the most likely "wild card" issues that may emerge in 2014.

Freedom of Information Act

Several ripe opportunities for improvements to the Freedom of Information Act (FOIA) are likely to present themselves in the coming year. The FOIA Oversight and Implementation Act, passed out of committee in March 2013, is pending consideration by the full House. Transparency advocates are hopeful that the Senate will introduce its own FOIA reform bill in 2014. But proposals in other bills could weaken citizen access to certain kinds of public information. For instance, the House-passed Farm Bill includes dangerous provisions that would restrict access to information about the environmental impacts of large "industrial" agricultural operations.

The administration made several detailed commitments to modernize FOIA in its 2nd Open Government National Action Plan, released in December 2013. We expect to see progress in 2014 on: the launch of a consolidated online FOIA service for requesters; common FOIA standards for all agencies; and improved training resources for FOIA professionals and federal employees. Given that the FOIA commitments in the plan were more detailed than other commitments, we may see progress from the administration early in the year.

The FOIA ombudsman, the Office of Government Information Services (OGIS), is also expected to respond to last year's report from the Government Accountability Office (GAO). That response is expected to include a plan for how OGIS will review agencies' compliance with FOIA, which could be a useful force for encouraging better performance.

Surveillance/NSA

The roiling debate about U.S. government surveillance activities and the National Security Agency (NSA) will continue into 2014 and could result in some major changes in the way secrecy in national security programs is handled. The Washington Post speculates that this could be the biggest policy issue of the year.

In December 2013, the White House published the recommendations of President Obama's own review group, which examined the civil liberties, national security, and transparency issues raised by recent revelations about the NSA. That report recommended greater disclosure of surveillance court decisions and public reporting about wiretapping and data collection activities and other concrete steps to promote more transparency and accountability.

On Jan. 9, President Obama met with lawmakers to discuss the issue. Meanwhile, the independent Privacy and Civil Liberties Oversight Board is expected to release its own report on the issue in the next few weeks. The president will present his NSA surveillance program reforms in a public speech scheduled for Jan. 17. Recent conflicting court decisions about the legality of the surveillance programs may add to the pressure for lawmakers to act.

Preventing Chemical Disasters

On Jan. 3, the Chemical Facility Safety and Security Working Group released a much anticipated preliminary set of policy options to improve chemical safety and security. The group offered nine sets of options across several categories, including options for handing and storing ammonium nitrate, requiring facilities to switch to safer chemicals and technologies, and collecting more accident data.

President Obama formed the Working Group via executive order last August in response to the fertilizer plant explosion in West, TX in April. The order tasked three agencies ‒ the U.S. Environmental Protection Agency (EPA), the Department of Homeland Security, and the Department of Labor's Occupational Safety and Health Administration (OSHA) ‒ to identify policy changes that will improve government coordination of chemical safety rules, to modernize hazardous chemical regulations and standards, and to work with stakeholders to identify best practices. The Working Group was supposed to release the policy options by Nov. 1, but its work was delayed by last fall's government shutdown.

The Working Group has opened a 90-day comment period, seeking input on the policy options. A final plan will be submitted to President Obama by May 1. Several listening sessions to gather input from stakeholders on how to prevent chemical disasters are scheduled this month in Los Angeles, Houston, and Washington, D.C., and next month in New York/New Jersey. The Center for Effective Government has been producing maps and factsheets for these sessions. Advocates are hoping for a recommendation to adopt a safer alternatives standard.

Reining in Controlled Unclassified Information

2014 should be an important year for reining in restrictions on controlled unclassified information (CUI). CUI refers to information that the government deems "sensitive but unclassified" and specifies how it must be stored, whether it can be shared, and the like. While there are valid reasons for controlling some types of unclassified information, such restrictions can also be misused to withhold information that ought to be in the public domain.

In 2010, President Obama issued an executive order on CUI, meant to increase oversight and consistency across agencies. However, the National Archives and Records Administration (NARA), the agency charged with developing the program, has yet to publish guidance explaining how the new system will work. Because of this, agencies haven't implemented anything in the four years since the president issued the order.

Encouragingly, the administration's 2nd Open Government National Action Plan commits to complete the guidance and move toward full implementation of the CUI executive order. Completing the guidance in 2014 will help rein in the chaotic patchwork of restrictions that agencies have applied to unclassified information. Transparency advocates, such as the Center for Effective Government, are waiting to see the details of that guidance and offer their suggestions for ensuring that CUI reform is successful.

Fracking Bans and Legal Challenges

Fracking, the controversial natural gas and oil extraction practice, is certain to face multiple votes, legal questions, challenges, and protests around the country again this year. Local cities and counties in many states passed bans or moratoriums on fracking activity last year, but many of those efforts face legal challenges this year. At issue is whether local governments have the authority to establish quality-of-life protections that a majority of their constituencies have voted for. In November's election, voters in three Colorado towns passed ballot initiatives that either banned or placed moratoria on fracking. The Colorado Oil and Gas Association, the state's oil and gas trade association, quickly filed suit over two of the bans, arguing that only the state has the authority to ban drilling.

Despite the ongoing threat of legal challenges, more communities are expected to pursue fracking bans or moratoria in this year's elections. For example:

  • On Jan. 3, activists in Athens, GA submitted more than the required number of signatures to the city auditor's office to place a fracking ban on the May primary ballot.

  • California activists have started collecting signatures for a moratorium on the practice to be included on the Butte County ballot in November.

  • Michigan voters are collecting signatures to put a proposal on the November ballot to ban horizontal fracking and fracking waste in the state.

  • In Colorado, activists are working on an amendment for the November election that would alter the Colorado state constitution, allowing individual communities to ban or restrict drilling for oil and natural gas. Activists plan to finalize the ballot initiative in the next few weeks, after which they would have to collect signatures to get it on the ballot.

Agency Open Government Plans

The president's 2009 Open Government Directive tasked federal agencies to create agency open government plans and update them every two years. The plans are supposed to "describe how [each agency] will improve transparency and integrate public participation and collaboration into its activities." Agencies published the first plans in 2010 and published updated plans in 2012. The next two-year update is due this year.

The Open Government Plans could be a powerful tool to help create a culture of greater openness in government, but the process has lost steam. As we wrote at the time, "There is an ongoing need for government-wide coordination and oversight of the open government plans." The administration's National Action Plan said the administration would issue new guidance to agencies on how to prepare their plans – an indication that the White House would play a more active role in the planning process. In the coming months, the open government community will be looking for strong guidance from the White House and bringing their ideas for the plans to the agencies.

Wild Card Issues

We offer the following seven "wild card issues" that are likely to get some attention in 2014; they may not become major issues but offer the possibility for some policy changes.

  • Toxics Safety: Congress is expected to continue to work on the first major update to the Toxic Substances Control Act (TSCA) of 1976, our primary and extremely dysfunctional chemical safety law. The Senate Environment and Public Works Committee, chaired by Sen. Barbara Boxer (D-CA), is attempting to resolve differences between a controversial bipartisan bill and earlier legislation offered by the late Sen. Frank Lautenberg (D-NJ). Meanwhile, the House of Representatives is expected to draft its own legislation.

  • E-Government: In its December 2013 Open Government National Action Plan, the administration committed to update policies for federal websites in 2014. In the wake of the beleaguered launch of HealthCare.gov in October 2013, President Obama pledged to seek reforms in how government delivers technology projects. Agencies are also working to implement the May 2013 executive order on data transparency. Initial inventories of agencies' data holdings are expected in the early part of the year.

  • Keystone XL Pipeline: President Obama is expected to make a decision on Keystone XL, a controversial project that would transport tar sands oil (which is more corrosive than crude oil) from Canada through America's heartland to Texas. In the early part of 2014, the U.S. State Department is expected to release its final environmental impact statement, which will feed into the president's decision. The project has divided many Americans, as the pipeline will cut through at least six U.S. states and create air, water, and public health risks in its wake.

  • Medicare spending: In December 2013, House and Senate committees approved bills that would publicly disclose payments made to physicians by Medicare while protecting patients' privacy. Those provisions are part of a package changing Medicare's physician payment formula, which Congress is expected to vote on by the end of March. At $555 billion in annual expenditures, Medicare is an ideal candidate for greater transparency, especially since increased public scrutiny can detect and deter fraud.

  • GMO Labeling: Despite previous losses, groups in favor of labeling food containing or consisting of genetically modified organisms (GMO) continue legislative efforts at the state level. Groups in Oregon, Colorado, and Arizona are collecting signatures to generate ballot initiatives on GMO labels, which would allow voters to determine whether food containing GMOs should be labeled.

  • Fiscal transparency: In its Second Open Government National Action Plan, the administration made several general commitments to expand the spending data being made available and to improve USAspending.gov, the government's main vehicle for disseminating the data. We expect a more detailed plan in spring of 2014.

  • Secret Trade Agreement: The Trans-Pacific Partnership (TPP), a regional free-trade agreement between the U.S. and several Pacific countries that could curtail crucial public protection activities and profoundly impact public policy issues, has been negotiated with unprecedented secrecy. Now legislation that grants the president "fast-track authority" and allows him to simply sign the agreement and send it to Congress for a straight up-or-down vote has been introduced – with no room for amendments and limited floor debate. Some observers think a TPP deal could be struck as early as April, when President Obama is set to tour Asia. Others say nothing will move this election year. In the wake of NAFTA's recognized job losses, and with sluggish job growth still plaguing the nation, the public is likely to be skeptical of new trade agreements.

Even with dysfunction and gridlock, given the range and importance of the issues raised here, 2014 could to be an eventful year for disclosure and open government.

Gavin Baker and Sofia Plagakis contributed to this article.