Open, Accountable Government
Citizen Access to Information: A Rollercoaster in 2013
by Sean Moulton, 12/17/2013
What a rollercoaster of a year it was for citizen access to public information. Early in the year, a flurry of activity around improving freedom of information requests took place but then slowed down. Likewise, we are being teased with the possibility of serious improvements in the accuracy of federal spending datasets. We thought we were going to get better disclosure of fracking chemicals on federal lands, but good rules failed to materialize. After 38 years, legislation to reform the Toxic Substances Control Act has been introduced, but with preemption clauses, it could actually end up reducing protections. The information leaked by Edward Snowden has led to tough questions and pressure for better oversight of our national surveillance agencies, but to date no action has occurred. And the government shutdown shut down federal agency websites, leaving citizens in the dark. Here is our take on the biggest ups and downs in open government for 2013.
Freedom of Information Act (FOIA): Hurry Up and Wait
The Freedom of Information Act was purportedly a priority for both the executive and legislative branches in 2013, although nothing made it over the finish line. Our report analyzing the FOIA performance of major federal agencies found that agencies were processing more requests and reduced the number of unprocessed requests; at the same time, they were using exemptions to redact or withhold information more often. In March, the House Committee on Oversight and Government Reform approved the FOIA Oversight and Implementation Act. While taking steps to improve agency compliance, encourage proactive disclosure, and strengthen oversight, the bill lacks any enforcement mechanisms. The Senate Judiciary Committee held hearings and expressed disappointment at the lack of progress in improving agency response times since passage of FOIA reform legislation in 2007; however, the committee has not introduced any new legislation on the issue.
The administration made significant commitments to modernize and improve the FOIA process in the Dec. 6 Open Government National Action Plan, including the creation of a centralized online FOIA service, the development of government-wide FOIA regulations, improved FOIA training, and the establishment of a FOIA Modernization Advisory Committee.
In September, the Government Accountability Office (GAO) criticized the Office of Government Information Services (OGIS) for failing to establish any plans for comprehensive agency FOIA reviews, as it had been tasked by Congress to do. While a good ombudsman for requesters, OGIS has limited resources and may need to redefine its function in FOIA oversight.
The 16-day government shutdown in October halted FOIA processing at several agencies and all OGIS activities. FOIA processing was deemed "non-essential" during the shutdown.
Spending Transparency: Maybe Coming
Several events occurred in 2013 that could pave the way for greater fiscal transparency. Late in the year, the House finally passed the Digital Accountability and Transparency (DATA) Act . The act directs the executive branch and Treasury Department to improve federal spending transparency, including creating standards for spending data and recipients. The legislation has received the support of the GAO.
The administration has begun trying to improve USAspending.gov, a website dedicated to making federal contracting information available to the public. The Treasury Department took responsibility for the website from the Office of Management and Budget in the fall and included "improving the user experience at USAspending.gov" as a goal of the Open Government National Action Plan. The administration also committed itself to publishing federal contract data not currently available, although it did not specify what the additional information will include.
Medicare may also be subject to greater transparency, as a U.S. District Court lifted a 34-year injunction that barred the release of information about payments to providers. On Dec. 12, House and Senate committees reported bills that would require Medicare to disclose such payments online. These bills are expected to move to the floor in early 2014. At $555 billion in expenditures, Medicare is an ideal candidate for greater transparency of its non-patient spending, especially since increased public scrutiny can detect and deter fraud.
Fracking: State Rules without Enforcement and a Weak Proposed Federal Standard
States across the country are requiring more stringent oversight of hydraulic fracturing (commonly referred to as fracking), but real enforcement is still lacking.
Earlier this year, California and Illinois passed the most stringent fracking disclosure laws in the country, but both contain loopholes to weaken their bite. The good: both states require baseline water quality testing prior to drilling, tighter trade secrets exemptions, and online disclosure on a state website. The bad: it's still difficult for medical professionals to get the information on the chemicals used, even when they are treating patients exposed to dangerous substances during emergencies.
Although a legal exemption in the 2005 Energy Bill prevents the federal government from regulating fracking waste under most environmental laws, the Bureau of Land Management (BLM) proposed a rule in May to regulate fracking on public lands. Unfortunately, the proposed rule failed to require companies to disclose the chemicals being used prior to fracking or to allow emergency health professionals access to chemical information. The BLM rule, which advocates hoped would be a model for states, has been assailed as a capitulation to the oil and gas industry. Many public interest groups, including the Center for Effective Government, provided the BLM with detailed recommendations for improvements. The rule has not yet been finalized, but observers are doubtful that the agency will fix the identified problems.
Tired of waiting for stronger state or federal protections, even more communities across the country passed bans or moratoriums on fracking activity in 2013. In November's election, voters in three Colorado cities ‒ Boulder, Fort Collins, and Lafayette ‒ approved anti-fracking initiatives by wide margins, ignoring an industry campaign that cost over $800,000. However, state governments and corporations have been quick to challenge these efforts in the courts. The State of Colorado has already filed a lawsuit against the city of Fort Collins for approving its five-year moratorium on fracking. A disturbing pattern of corporate lawsuits challenging the electoral preferences of the majority of voters in local communities is emerging.
Preventing Chemical Disasters: An Opening
Several explosions this year highlighted the risks to communities from hazardous chemicals and the need to shift to safer chemical alternatives in production processes and in products. In April, an explosion at a fertilizer plant in West, TX killed 15 people and injured more than 160. Then in June, an explosion at a chemical facility in Geismar, LA killed two workers and injured 114 others. These incidents revealed that first responders and government officials are unaware of the risks of the chemical facilities located in population centers.
In response to these tragedies, on Aug. 1, President Obama signed Executive Order 13650, Improving Chemical Facility Safety and Security. The order required three agencies ‒ the U.S. Environmental Protection Agency (EPA), 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. Public listening sessions and webinars are being held around the country to gather input from stakeholders on how to prevent chemical disasters.
The Center for Effective Government, working with the Coalition to Prevent Chemical Disasters, has provided testimony and materials for these public "listening sessions" that emphasize the need to switch to safer chemicals and production processes. Using safer chemicals could keep millions of Americans out of harm's way. A poll released in October shows that the majority of Americans favor strong federal requirements requiring plants to switch to safer alternatives when available and affordable.
To help better inform the public about the dangers of hazardous chemicals in their communities, the Center for Effective Government is producing a series of interactive maps of major toxins (anhydrous ammonia, chlorine, and hydrogen fluoride) reported to the EPA's Risk Management Program. For the Texas listening session, we produced a Texas state map showing that thousands of schools and more than a hundred hospitals were within a one-mile radius of a high-risk chemical facility.
Protecting the Public from Toxic Substances: Starts and Stops
On May 23, the late Sen. Frank Lautenberg (D-NJ) and Sen. David Vitter (R-LA) introduced the Chemical Safety Improvement Act (CSIA) of 2013 that would reform the 1976 Toxic Substances Control Act (TSCA), our primary and extremely dysfunctional chemical safety law. Most environmental and health advocates viewed the legislation as massively flawed and believe it represents a significant retreat from the much stronger Safe Chemicals Act of 2013, which Lautenberg introduced in April.
Unlike that earlier legislation, the CSIA fails to protect vulnerable populations that may be particularly susceptible to chemical exposures, such as children, developing fetuses, or those that might receive disproportionately high exposures, such as low-income communities living near toxic facilities. But most troubling, the new legislation would preempt state chemical laws.
The CSIA has also evoked opposition from Senate Environment and Public Works Committee Chair Barbara Boxer (D-CA). Boxer is adamantly opposed to the preemption provisions, since California currently has the strongest chemical laws in the country. Because the California market is so large, most national companies adhere to its standards. If California's laws were preempted, chemical risks would increase for the residents of the state and for millions of other people across the country. The Senate and House held several hearings on the legislation and chemical reform efforts in general. Negotiations to improve the legislation involving Sens. Boxer, Vitter, and Tom Udall (D-NM) have continued with no clear end in sight.
Effective Use of Technology: Progress and Pitfalls
The highlight of the administration's efforts to improve agencies' use of new information technologies was the May release of President Obama's executive order on data management. It provides a framework for agencies to improve public access to, and use of, government data; it asks for dataset inventories and directs agencies to plan for public release of data from the earliest stages of information collection, which could lead to major improvements in the accessibility of public information.
Unfortunately, the most infamous tech story of the year was the bumbled launch of Healthcare.gov in October. The federal health insurance market exchanges, created under the 2010 Affordable Care Act to allow consumers to easily compare insurance plans, debuted with frustrating glitches and sluggish service for users. The head of the agency that developed the site apologized for the problems, and the administration quickly undertook remedial efforts to patch the flaws. By the beginning of December, the most egregious problems seemed to be fixed, but some nagging issues remain.
Of course, Healthcare.gov is not the first time the federal government has struggled to launch a new technology. This example might be the prime exhibit to make the case for rebuilding the internal capacity of government information dissemination ‒ something we called for in our 2008 recommendations to the incoming president. In fact, there have been steps taken to improve implementation of information technology, though not necessarily through increased internal capacity at agencies. As a direct result of the health care site problems, President Obama has said that he plans to pursue broader reforms in the way government procures technology. Furthermore, as part of its Dec. 6 Open Government National Action Plan, the administration pledged to improve federal websites and update website policies in 2014. While neither effort has specifically required increased internal IT capacity, there is no doubt that overseeing IT procurement and updating federal websites would be significantly easier if agencies had more qualified personnel.
Other agencies actually did exemplary work developing useful, citizen-friendly public websites. The Consumer Financial Protection Bureau's expansion of its complaint disclosure database is an excellent example.
The Center for Effective Government is monitoring executive agency efforts to provide helpful, easy-to-use disclosure websites. We launched our E-Gov Spotlight feature in the fall and reviewed new online tools like the EPA's enforcement database, a one-stop-shop for government benefits assistance, and Recalls.gov. There are positive examples of advances; unfortunately, they did not receive much public attention.
National Security Surveillance: Scrutinized Itself
In June, disclosures by former National Security Agency contractor Edward Snowden began to generate headlines around the world – and continued throughout the year. The disclosures revealed stunning new information about the scope of U.S. government surveillance activities and ignited vigorous debates about the merit, legality, and oversight of this kind of domestic and international surveillance. Many leaders and organizations called for increased scrutiny and better oversight of surveillance policies and programs.
The fallout from the Snowden (and other) disclosures is ongoing, but it may be creating the pressure for serious reforms. President Obama initially emphasized that the surveillance program had safeguards built in, but the White House now says it welcomes debate on the issue.
In June, the independent Privacy and Civil Liberties Oversight Board – with a full slate of members after lying dormant for years – met with the president and recommended that "every effort be made to publicly provide the legal rationale for the programs." The Board's review of the programs is ongoing. Additionally, in August, President Obama established a special review group, which provided its recommendations in December; the White House has said it will publish those recommendations in January 2014.
In October remarks to the Open Government Partnership conference, Secretary of State John Kerry admitted that some surveillance activities had "reached too far" and indicated that the administration would seek to restrain surveillance by the national security community in some way. Several reform bills have been introduced in Congress, most prominently the USA FREEDOM Act, introduced by Rep. Jim Sensenbrenner (R-WI) and Sen. Patrick Leahy (D-VT). House leaders are reportedly under pressure to call up such measures for consideration. On Dec. 6, as part of its new Open Government National Action Plan, the Obama administration committed to publishing aggregate data about certain surveillance activities annually and to continue to declassify related information. We are eager to see how the ride will end.
Gavin Baker, Sofia Plagakis, and Peter Thomas contributed to this article.