The Teas of Transparency
2010 was a banner year for government transparency, with many significant advances and only a few disappointments. However, there were other events outside the world of government openness that seeped into the collective consciousness, and one of the most notable was the rise of the Tea Party in American politics. For this year-in-review article, we decided to take a somewhat tongue-in-cheek approach to assessing and commenting on events in government openness, playing off the theme of tea. Thus, we present to you … the Teas of Transparency.
At the very end of 2009, the Obama administration released the Open Government Directive (OGD), which included an aggressive timeline of deliverables for 2010. This year, the OGD work received intense support and energy from both the White House and federal agencies. White House officials have overseen a robust interagency working group on open government that has as much interest and involvement at the end of the year as it did at the beginning.
Most agencies kicked off their 2010 OGD work by launching new Open Government webpages and engaging the public in online discussions to gather ideas on improving transparency, public participation, and collaboration. Then, on April 7, dozens of agencies across the federal government released their open government plans. Overall, the plans were heralded as a major leap forward for open government, even as some inconsistencies and disappointments were noted about particular aspects of individual plans.
The open government community moved fast to evaluate the agency plans. An effort coordinated by OpenTheGovernment.org had reviewers compare each plan against the specific requirements established by the OGD. The evaluation found some exceptional plans but noted that most plans needed at least some improvement. Many agencies incorporated much of this feedback and quickly produced updated plans that addressed many of the issues raised by the access advocates. These improvements were recognized with improved evaluation scores in a second round of scoring by access advocates.
During the latter half of 2010, agencies turned their focus from planning to implementation, with online tools and policies continuing to roll out from various agencies. The emphasis was on data disclosure under the OGD and contributed significantly to the explosion of datasets posted on Data.gov, which now houses more than 300,000 datasets. Critics have raised concerns that agencies are not focusing on high-value datasets and that Data.gov is not designed for the average user, creating less enthusiasm for the hard work agencies have done on the OGD in 2010.
In November, President Obama signed a new executive order on controlled unclassified information (CUI), reforming the system of safeguarding information that is not classified but is still considered "sensitive." The order was praised by many government openness advocates. Previous practices for handling CUI stymied public access and inhibited information sharing inside government.
The new executive order establishes CUI as the sole system for controlling unclassified information, replacing an ad hoc system developed by agencies without clear public definitions or meaningful oversight. By May 2011, the National Archives and Records Administration (NARA) will establish government-wide procedures for CUI. Agencies will submit proposed CUI categories for review by NARA, citing a specific basis in statute, regulation, or government-wide policy. By November 2011, NARA will publish a list of the approved categories, including their definitions and associated procedures. Any future categories would also have to be approved by NARA. The order also makes clear that designating information as CUI does not exempt it from disclosure under the Freedom of Information Act (FOIA).
It took the administration almost the entire year to issue the CUI order, and while transparency advocates were pleased with the content, many important details remain to be worked out. We believe CUI is slow-brewed tea, and we'll find out in 2011 if it is weak or strong.
Tea that Shall Not Be Named
The Obama administration continued to assert the state secrets privilege in court cases in 2010. In September, the administration moved to dismiss Al-Aulaqi v. Obama, a case regarding an American citizen allegedly targeted for killing by the government. The court did dismiss the case in December but did not rule on the government's state secrets claim. In 2009, Attorney General Eric Holder issued a new policy reforming the procedures for asserting state secrets claims. The reforms included a narrowing of the use of the privilege to specific evidence and limiting its use to dismiss whole cases. In the Al-Aulaqi case, the government stated that it had complied with these new policies. Legislation to reform the state secrets privilege, introduced in 2009, did not move in 2010.
The Price of Tea in China
Spending transparency was also a major theme throughout 2010. Recovery.gov continued to provide transparency to over $200 billion in federal stimulus spending with regular data updates, site improvements, and a shift to new cloud computing on the backend. USAspending.gov, the government’s main site for disclosing federal spending, received a major upgrade and a new interface in 2010. In October, USAspending.gov also began providing information from grant and contract recipients and sub-recipients for the first time since its launch. This upgrade, which had been intended since the Federal Funding Accountability and Transparency Act of 2009 required the creation of the site, had proven too difficult to accomplish until the new reporting improvements established under the Recovery Act provided a successful model.
Of course, spending transparency isn’t just about the numbers, it also depends on the quality of those numbers. The Sunlight Foundation launched a new site, Clearspending, that revealed significant inconsistencies between spending being reported in USAspending.gov and the Catalogue of Federal Domestic Assistance. Quality of spending data was already on the government’s agenda. In February, the White House issued a framework for federal spending data quality requiring agencies to finalize plans by May 14. Initially, few of the agency plans seemed to be available online, but most agencies have now published them to their websites.
Speaking at the United Nations (UN) in September, President Barack Obama moved beyond domestic transparency efforts like the OGD and the CUI executive order and called for improved government openness worldwide. He challenged UN members to return in 2011 with "specific commitments to promote transparency; to fight corruption; to energize civic engagement." Exactly how the administration will follow up the president's call remains to be seen, but one hint came in November, when the U.S. and India announced a Partnership on Open Government to share experiences.
The whistleblower website Wikileaks sparked intense controversy this year. In April, the website released a classified military video of a 2007 Baghdad airstrike that killed two Reuters journalists – video that the military had refused to release under FOIA. In July, Wikileaks released more than 70,000 classified documents from the Afghan war. Some transparency and human rights advocates criticized the site for not redacting the names of Afghans who had collaborated with the U.S. military, which led to redactions of such details from its next release of nearly 400,000 classified documents from the Iraq war.
But the biggest controversy came in November, when Wikileaks began publishing more than 250,000 U.S. diplomatic cables, more than 100,000 of which are classified. Among the documents were revelations that military contractors in Afghanistan may have hired child prostitutes and that the State Department ordered diplomats to spy on top United Nations officials.
The White House condemned the latest release, saying, "President Obama supports responsible, accountable, and open government at home and around the world, but this reckless and dangerous action runs counter to that goal." OMB ordered federal employees not to view the documents and directed agencies to review their policies to safeguard classified information. The Justice Department is considering how it might prosecute Wikileaks' editor-in-chief, Julian Assange. But the American Civil Liberties Union warned that prosecuting Assange or others associated with Wikileaks would raise serious constitutional concerns. Transparency advocates such as the Electronic Frontier Foundation and the Association for Progressive Communications also rushed to Wikileaks' defense. However, others, such as Citizens for Responsibility and Ethics in Washington, argued that Wikileaks' actions would ultimately damage transparency efforts.
The BP oil spill in the Gulf of Mexico brought tremendous public attention to numerous failings of the nation's oil drilling regulatory system and its emergency response capabilities. It also highlighted ongoing problems with federal, state, and local governments' understanding of key environmental right-to-know issues.
Response to the spill was hampered by restrictions on media access to the spill, confusion concerning the quantity and fate of the leaked oil, and criticism over the delayed disclosure of the chemical ingredients of the millions of gallons of dispersants used to combat the spill. BP initially directed its contracted cleanup workers to not speak with the media, an order that was later rescinded but continued to be sporadically enforced. The U.S. Coast Guard made huge portions of the Gulf and beaches off-limits to reporters with a rule threatening criminal penalties for entering a 65-foot "safety zone" around cleanup operations and equipment. The rule was eventually revised, but media still needed special permission to enter safety zones.
On the chemical side of things, manufacturers of the approximately 1.84 million gallons of dispersant used throughout the Gulf claimed the ingredients were trade secrets, which significantly delayed their disclosure despite serious concerns about health and environmental effects.
Government estimates consistently underestimated the flow rate of the gushing oil, and BP initially failed to provide information needed to make more accurate calculations. Disclosure of the fate of the oil once it was released into the water column also became an area of controversy. The administration's estimate of what happened to the oil and how much remained in the Gulf – the so-called oil budget – presented an unexpectedly positive analysis. The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling, set up by President Obama, along with other experts, criticized the lack of transparency surrounding the methods and science behind the government analysis.
EPA Steeps Its Tea in a Crystal Pot
Though the BP oil spill disaster sucked a lot of the air out of the room, 2010 was also a positive year for our environmental right to know. The year saw a continuation of significant transparency initiatives at the U.S. Environmental Protection Agency (EPA). The agency's strategic plan for fiscal years 2011-2015, released in the fall, seeks to increase openness throughout the agency's operations. Incorporated throughout the plan are the concepts of transparency, accountability, and community engagement.
The agency added an assortment of new online information tools intended to help the public access, understand, and put to use government data on environmental and public health issues. The EPA launched the Health and Environmental Research Online (HERO) database on March 24. The free, online, searchable database contains thousands of scientific studies used by EPA to assess the risks of environmental and health impacts from exposure to hazardous pollutants and chemicals.
EPA also developed an online interactive map providing information on agency enforcement actions and cases involving violations of several environmental statutes since 2009, focusing on the Chesapeake Bay watershed and airshed. EPA developed a separate online interactive map of the whole United States that provides Clean Water Act violation and enforcement data for smaller facilities known as "non-major" facilities. Environmental and public health advocates have made improved access and searchability of enforcement information and mapping tools a right-to-know priority.
EPA in 2010 continued to expand its presence online, with issue-specific forums and webpages. In response to the BP spill, the agency launched an informational website – available in three languages – that provided news updates as well as air and water testing data for the Gulf region.
What's In My Tea?!
In 2010, the EPA took several steps toward disclosing more chemical health and safety information that has been inappropriately hidden from the public as alleged trade secrets. Chemical companies have long overused and abused their ability to claim information submitted to EPA as confidential business information (CBI) under the Toxic Substances Control Act (TSCA), thus hiding chemical health and safety information from the public.
In January, EPA announced that companies would no longer be allowed to claim that the identity of a chemical is CBI if the chemical's name is already public. Next, EPA made the non-confidential portions of the TSCA inventory available for free online, instead of placing that information on a CD-ROM that users previously had to purchase. Finally, in May, the EPA announced it will review all claims by manufacturers that a chemical's identity should be treated as CBI when the identity is part of a health and safety study or the study's underlying data. The agency expects that unless the disclosure of the chemical identity explicitly reveals how the chemical is produced or processed, the secrecy claim will be rejected, allowing the public to link the chemical to its health and safety information.
Bitter Tea of Deadly Chemicals
Shifting gears from the administration to Congress, the year began hopefully for advocates of improved security and environmental right-to-know related to thousands of chemical plants across the country. In November 2009, the House had passed a compromise comprehensive chemical security bill that would have required facilities to assess options for reducing the risks of a terrorist attack that could send a poison gas cloud wafting into communities. The bill authorized the Department of Homeland Security (DHS) to require those chemical facilities that posed the greatest risk to convert to the safer methods that the facilities identified in their assessments – but only under certain conditions. The bill still lacked crucial accountability measures, granting DHS the power to bury the program in excessive secrecy and deny to the public information needed to keep communities safe. Despite its shortcomings, the bill was headed for likely action in the Senate, presenting new opportunities to strengthen public and worker protections.
However, in 2010, the House-passed legislation ran into a brick wall in the obstructionist Senate. The Senate Homeland Security and Governmental Affairs Committee voted in July to merely extend the existing, inadequate chemical security program housed at DHS. The current program exempts hundreds of facilities and prohibits DHS from requiring specific security measures, including the adoption of proven and economical safer technologies. The current program also is devoid of any meaningful accountability or transparency measures. Hope is rapidly fading as the calendar runs out in the Senate for action on separate legislation introduced by Sen. Frank Lautenberg (D-NJ). The Lautenberg legislation mirrors many of the measures in the House-passed bill, including expanding chemical security protections to drinking and waste water treatment plants. It remains unclear what further actions will be taken by the next Congress when it convenes in January 2011.
Beyond the failure on a key environmental right-to-know policy, Congress produced mixed results on transparency, passing a few measures and only debating a few others. After initially granting a broad FOIA exemption to the Securities and Exchange Commission in the financial reform bill, Congress quickly reined in the loophole. Bills to reduce overclassification at DHS and improve the clarity of government documents also became law.
Faster FOIA processing, more robust campaign finance disclosure under the DISCLOSE Act, and a media shield law passed only one house of Congress and don't look likely to move in the remainder of the lame-duck session. Improved whistleblower protections did pass the Senate during the lame-duck session and may still become law. Other transparency bills, such as the Public Online Information Act, never even made it to a floor vote in either house.
Tea Party (Boston or Alice)
November's midterm elections unleashed a wave of transparency gossip. Leaders in the newly Republican-controlled House have made positive noises on some transparency issues, and President Obama said that he thinks transparency could be common ground between him and the House.
However, much remains to be seen. Within the House itself, Republicans have pledged to enact "Read the Bill" rules, requiring legislation to be published online three days prior to a vote in committee and on the floor. Incoming Rules Committee chair Rep. David Dreier (R-CA) wants to broadcast video of the committee's meetings, as most other House committees already do. However, House Republicans have been less clear about their plans for the Office of Congressional Ethics, which was created in 2008 to investigate ethics violations and which many good government and transparency advocates support. Some fear that the Republican leadership wants to limit appropriations for OCE and let it die a slow death.
The biggest questions, though, relate to how the House will approach transparency in the executive branch. Rep. Darrell Issa (R-CA), Transparency Caucus co-chair, will assume the chairmanship of the Oversight and Government Reform Committee. Issa has supported many thoughtful transparency measures, but he has also promised a battery of investigations of the Obama administration. Some of the described investigations could shed valuable light on executive actions, but others appear to be partisan hobbyhorses based on conspiracy theories and myth. Out of all of this, we could get principled oversight of government, or we could get political theater in oversight clothing. Only time will tell whether the 112th Congress will be a reform-minded Boston tea party or more like having tea with the Mad Hatter.