Open, Accountable Government
Transparency Wrap-Up: 2012 Edition
2012 saw clear and important accomplishments in government transparency in several areas, such as improved whistleblower protections and progress on the numerous open government commitments made under the Open Government Partnership. There was, however, a missed opportunity for U.S. leadership at the Rio+20 environmental summit. And we are concerned that undue industry influence in certain regulatory arenas may be reducing public access to information. For example, a proposed rule would allow water companies to report on the quality of local water supplies in online formats only. And state laws requiring natural gas companies to disclose the chemicals used in fracking often allow confidential business information exemptions that are so broad as to undermine the laws. Nonetheless, at the federal level, 2012 was a year of continuing progress for open government.
After more than a decade of hard work by advocacy groups, in November 2012, Congress passed and President Obama signed the Whistleblower Protection Enhancement Act. The new law closes loopholes, clarifies protections, and strengthens the agencies charged with protecting federal whistleblowers. Though intelligence and national security workers were excluded from the new law's protections, President Obama issued a directive in October to improve protections for these public employees.
In addition, the Senate passed an amendment to strengthen whistleblower protections for the employees of federal contractors and grantees, ensuring that contractors and grantees cannot fire or punish private employees who report misconduct among businesses receiving public funds. The fate of that measure will be decided as part of negotiations between the House and Senate on the National Defense Authorization Act.
It was also a lucrative year for whistleblowers and the taxpayers they protect. Whistleblowers helped the federal government recover at least $3.3 billion in fiscal year 2012, a record high. By protecting public servants who report problems from professional retribution, the country will learn more about government activities in need of attention and improvement and strengthen a culture of transparency and accountability in government.
States and communities across the country are requiring more oversight of the activities involved in hydraulic fracturing in response to growing citizen concerns about the public health risks involved in fracking, but safeguards are still lacking. Currently, at least 30 states are engaged in natural gas drilling, yet only 13 have policies requiring some level of public disclosure of the chemicals used in fracking. An OMB Watch report reviewed these state disclosure policies and found them spotty and incomplete, with no state putting together the four key elements needed for effective disclosure.
Tired of waiting for stronger state or federal protections, more than 200 local communities across the country have passed bans or moratoriums on fracking activity within their boundaries. Local officials in these communities have decided that fracking poses an unacceptable risk to drinking water supplies, public health, and future development. However, state governments and corporations have started challenging these efforts in the courts, a move that would strip the power of democratically elected local governments to establish quality-of-life protections their constituencies want.
Efforts are also underway to increase federal oversight, including a proposed rule by the Department of the Interior requiring companies to disclose the chemicals used in fracking on public lands, and a petition calling on the U.S. Environmental Protection Agency to add the oil and gas industry as a reporting sector in the Toxics Release Inventory (TRI) program.
Open Government Partnership
The global Open Government Partnership (OGP) initiated by President Obama celebrated its one-year anniversary in September. Through OGP, partner countries agree to develop plans to strengthen open government in their nations and endorse a joint Open Government Declaration. The partnership and the U.S. National Action Plan have both made significant progress toward the goal of establishing more open and responsive governance. OGP's membership now stands at an impressive 58 countries, with 47 countries, including the United States, having already delivered commitment plans.
The U.S. plan committed to 26 specific open government reforms, ranging from improvements in the Freedom of Information Act (FOIA) and declassification to increased spending transparency and public participation. OpenTheGovernment.org published a progress report that showed the administration had already delivered on several key commitments and made progress on others. The administration is expected to release a self-assessment of the plan's implementation in early 2013 and then begin work on a new, improved National Action Plan.
Freedom of Information
Implementation of the Freedom of Information Act is a perennial contest for open government advocates. While agency performances were mixed this year, a review of the latest FOIA numbers, released in March 2012, showed that more FOIA requests were processed in 2011 than in any year since 2005. Moreover, the use of exemptions to deny requests dropped, and use of the most discretionary exemptions decreased sharply. However, agencies' combined backlog grew by 19 percent due to an even larger surge in FOIA requests.
In October, the administration launched a new federal website that could help agencies process requests faster and release more information to the public. FOIAonline is a multi-agency portal that allows the public to submit and track requests, receive responses, and search others' requests through a single website. The system provides new features to assist with processing requests, which could improve timeliness and reduce backlogs. Agencies can also use the system to publish their responses to FOIA requests, which would make this information more widely available to the public. The new site represents a major advance in modernizing the FOIA system to deliver transparency more effectively and efficiently. While only three agencies are currently using the site, it could provide the model for a universal FOIA request system.
Water Quality Reports
The drinking water quality reports that water utilities have been mailing to customers annually for almost two decades are typically so technical that most people have a hard time interpreting them. But the reports are still a vital means of informing people about drinking water problems that could affect their health. However, the U.S. Environmental Protection Agency (EPA), responding to industry complaints about costs, has proposed shifting to electronic posting of these reports.
While there are benefits to using electronic delivery (e.g., reduces printing and mailing costs and saves natural resources), almost one-third of American households are still without broadband Internet access at home, so such delivery could reduce the public's access to information about their drinking water. In response, OMB Watch, along with 14 other organizations, filed comments to the agency, highlighting ways to strengthen the drinking water quality reports that consumers receive from water utilities. We'd like to see an easy-to-read grading system established for water systems.
OMB Watch also launched an action alert on the issue; more than 700 consumers submitted their own comments in response.
Political Ads Transparency
As a major election year, 2012 brought with it unprecedented levels of political advertising by candidates and outside groups across the country. There were several efforts, with varying success, to shed more light on such advertising. In April, the Federal Communications Commission (FCC) approved a rule that would create an online database of information about television stations' content, including who is buying political advertisements. While the stations' files were already public, they had previously only been available by appearing in person at station offices.
Republican members of the House Appropriations Committee sought to block the rule, but after great public outcry against the move, the members allowed the rule to stand. The National Association of Broadcasters (NAB) filed a lawsuit seeking to block the rule, claiming it exceeded the agency's authority and violated broadcasters' First Amendment rights. However, the NAB recently asked to delay the case and raised the possibility of dropping it entirely.
Unfortunately, congressional efforts to pass the Democracy Is Strengthened by Casting Light On Spending in Elections (DISCLOSE) Act did not make as much progress. The bill would have created new campaign finance disclosure requirements and made public the names of super PAC contributors. The Senate held two votes in July but failed to pass the legislation each time.
Need for Safer Chemicals
Several accidents and disasters this year highlighted the risks that hazardous chemicals can pose to communities, the importance of information on such chemicals, and the need to shift to safer chemicals.
A fire at a Chevron oil refinery in California (one of at least 28 refinery fires in the United States in 2012 alone) sent thousands to hospitals and forced local residents to hide in their homes with their doors and windows shut. A train derailment in New Jersey released thousands of pounds of a cancer-causing chemical into the air and left hundreds of homes evacuated and area schools closed for more than a week. As a result of the extensive flooding during Hurricane Sandy, raw sewage and other toxic pollutants, including industrial chemicals, poured into New York City waterways.
There are safer chemicals and processes that industry can substitute for dangerous substances and better protect Americans in the process. The Clorox Company announced it was replacing bulk quantities of chlorine gas with safer chemicals in 2009. OMB Watch and many others in the environmental, health, and safety community have long advocated for a switch to safer chemicals and production processes and have called on the EPA to use its authority under the Clean Air Act to require chemical plants to shift to less toxic chemical alternatives and so reduce the risk of future chemical exposure before more lives are put at risk.
The administration plugged away at improving websites and online tools during the year, launching various new sites publishing declassified materials, credit card complaints, and mapping environmental data.
The White House also sought to revolutionize government digital services by reforming the fundamentals of how government uses technology. The Digital Government Strategy, released in May, lays out procedures for establishing openness as the default for public information and raises the bar for usability, efficiency, and innovation. The administration rolled out a number of valuable reforms under the strategy, with additional policy documents expected in early 2013.
Using transparency to verify or improve ethical behavior of government officials was a popular issue at the federal and state level this year. In April, President Obama signed the Stop Trading on Congressional Knowledge Act, or STOCK Act, which will put financial disclosures from thousands of congressional staff and executive branch officials online for the first time. Asset disclosure helps ensure that public officials don't use information gleaned from their decision making authority to increase their personal financial holdings. However, the STOCK Act has met with court challenges that have delayed its implementation and may limit the amount of information displayed online.
Many state governments already provide some online access to similar disclosures, and others, such as Maryland, are considering following suit. An OMB Watch report in March highlighted a number of state websites that provide quality online tools for reviewing asset disclosure information, as well as lobbying disclosures, campaign finance data, and procurement decisions. While states and the federal government have made progress in this area, more work lies ahead as the quantity and quality of disclosure remain uneven.
The Rio+20 international environmental conference provided a forum for more than 130 government leaders to discuss improving environmental policies and sustainability. Among those countries, 15 made specific commitments to improve access to environmental information and public participation in environmental decision making. The United States was not among them.
Prior to the conference, OMB Watch worked with public interest organizations to encourage specific improvements. The U.S. groups built their demands from a set of recommendations endorsed by more than 100 public interest organizations around the country. Despite the input, U.S. officials refused to make any concrete commitments at the conference. Though the United States does not need a global conference to improve environmental information domestically, it would have been an opportunity for the U.S. to signal its commitment to be an environmental innovator and leader to the world and its own citizens.
Photo by flickr user seagers, used under a Creative Commons license.