There Oughta Be a Law

For my day job I lobby to make government more open and transparent. But I have many ideas about other things government should (or should not) be doing. Some are smart, some are stupid, some are silly, and they are all here for your entertainment.

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Help pregnant moms and new parents.

One key to a healthy life is having a healthy start. But too many pregnant women do not have access to the foods, vitamins, and health care necessary to ensure And many new parents need help starting off.

In Cuba, of all places, birth outcomes (as measured as low birth weight) are significantly better than in many places in the US. This is because Cuba has implemented programs that provide free screening for pregnant mothers, free vitamins and health care, and have nutritionally-balanced foods available to pregnant moms upon request. We should do this too.

But care should not stop upon birth. For three-quarters of a century, Finland has provided new parents a baby-start kit (or its cash equivalent) which isn’t much). The kid includes bed sheets and a mattress, diapers, clothes, some formula, and other supplies. Finns point to a strong decrease in infant mortality as a consequence of the program. We also should do this.

Combining pre-natal care and post-birth care, we can ensure we put our kids on a strong, healthy foundation that will make them healthier, less susceptible to illness, and reduce costs over the cost of their lifetimes.

Parental leave for Feds.

When it comes to parental leave (paid or otherwise), the US fares poorly. And federal employees fare worse than many private sector employees.

Of the 38 industrialized countries surveyed by Pew, the US comes in last for protected leave and paid leave. Under federal law, employers with more than 50 employees must provide 12 weeks unpaid leave to new parents. This is known as protected leave — where you cannot be fired for taking time off. The US is tied for worst place with Mexico. As for paid leave, the US does not provide for pay for new parents, as compared with all other countries surveyed, who do.

Some companies in the US private sector go above the minimum and provide either more time or some form of pay. Federal employees, however, receive no paid leave. Some will convert their vacation and sick time to cover absences from work, but agencies do not officially allow the use of sick time for paternity leave (some look the other way). And vacation time is slowly accumulated, so new parents, who likely are younger, may not have accumulated enough vacation time to get paid for their time out of work.

This is silly and counterproductive. At a minimum, federal employees should be afforded paid parental leave — at least 6 weeks per child, and longer preferably. (Ideally, at least double). And because it is parental leave, it is available to both parents. I would suggest 6 weeks paid and 6 weeks unpaid, with the unpaid leave able to be converted to paid leave through use of sick or vacation time. (President Obama agrees, up to a point, and recently suggested something similar.)

The US also should look at a way of expanding protected leave, which some local governments already do, and decide on a mechanism to fund some parental leave (perhaps up to a certain number of kids or a set period of days).


Government does your taxes.

The federal government collects enough information for the IRS to do your taxes for you and send you a completed form to review. But lobbying by the tax preparation industry has stopped the IRS from providing this service. Going forward, the IRS must provide to taxpayers a first-draft of their tax forms, for review and approval by the taxpayer.

3% for retirement.

The most powerful way to save money for retirement is to start young and put money away consistently. But filling out the form and choosing which plan to invest in is sufficiently difficult that many people when they start a new job put it off. That decision costs them thousands of dollars, and perhaps much more if there’s an employer match for retirement money.

I suggest a slight change: when starting a new job, the employer automatically sets retirement savings at 3%, to be placed in the least expensive index fund (or select year fund, if it is cheaper), unless the employee affirmatively decided to change the amount invested or the funds selected. This automatic selection should be eligible to receive any matching funds. The employee retains complete control over investment decisions, but the default is towards some savings. As we have seen in studies, this type of arrangement preserve employee decision-making power while nudging towards more beneficial behavior.

Employer retirement plans.

Employers offer a wide array of retirement plans including many that provide access to mutual funds. For these plans to be maximally helpful to employees, however, there must at least be the option of plans with low fees, especially passive investment index funds. Yet what we see is the broker-dealers who provide plans to companies often put such high fees onto passive investment index funds that a significant amount of the profits are eaten away to benefit the broker-dealer, not the employee.

For employee retirement plans that include multiple index funds, employer-provided plans should include at least one index fund (that is tied to stock market performance) that is at no more than 25 basis points above the cost of the fund on the free market; and that fund chosen from the free market must be in the bottom 10% of those available that cover that particular index. In other words, the index fund chosen must have few fees and cannot have much additional markup added by the broker-dealer the employer contracts with.


Rape kits.

Many local governments have huge rape kit backlogs. The ability of these kits to solve crimes is tremendous, but local governments often do not prioritize their resolution. The federal government shall be authorized to make loans at low rates to help municipalities pay for the resolution of these backlogs, which must be reduced by at least 10% a year (until only a handful remain). As motivation, municipalities which do not decrease rape kit backlog by 10% annually (down to a very low number remaining) jeopardize the receipt of grants and loans from the federal government and federal investment in the area (including highway funds).


The right to vote is sacrosanct but all too often barriers stand in the way of people’s ability to exercise that right. Either election day is made a federal holiday (so many people do not have to work) or it should be moved to the Saturday and Sunday preceding the usual voting day. Ultimately, extended early voting, vote-by-mail, and other methods to make it easier to vote should be implemented. (Also, the nonsense about stringent voter IDs really should end.)


More federal holidays.

Compared to other countries, Americans work somewhat more than other industrialized countries. We have 10 federal holidays but they’re not evenly distributed. New Years’ Day to MLK Day is just a few weeks, but Independence Day to Labor Day is two months.

There should be a federal holiday each month. It’s good for people and the economy and it’s more fun. We need three: in May, June, in August. I’m sure we can gin up some kind of appropriate cultural or historical figure to celebrate those days, but the best celebration is a day off.

For example, May could have Constitution Day (around May 25th), for the start of the constitutional convention. June could celebrate the birthday of Harriet Beecher Stowe (around the 14th). August could have Explorer’s Day, with the birth of one of the Wright brothers in mid-august (the 18th).

Permanent daylight’s saving time.

DST was initially created in the UK at the start of the 20th century because an avid golfer wanted to keep the courses open later and later expanded as a coal-saving move during WWI. (At least that’s what Wikipedia says). It was abandoned by most countries, only to be reintroduced in the 1970s as an energy-savings measure. With modern homes and businesses, the energy savings are in doubt, and it survives as an anachronism, recently expanded by 5 weeks in 2005 (so it starts earlier and ends later).

DST is complicated, provides no real benefits, and may actually cause harm (an increase in traffic deaths, misalignment of times between the US and other countries). The time of day should not be adjusted based on when the sun rises and sets. The majority of the year the sun rises later in the morning and sets later on in the day, and that’s the way it should be.

High school starts later.

Studies have repeatedly shown that teenager’s body clock is later than adults — they go to sleep later and wake up later. But many high school’s start very early in the morning; mine started at 7:20 and required getting up at 6am. If we really want kids to do well in school we have to set them up for success.

No public school system should be appropriated funds (with a few limited exceptions) unless the school day starts at least at 9am, if not later. For those worried about after school athletics: (1) your priorities are in the wrong order, (2) schools will figure it out, but (3) change how daylight savings time works.


Geothermal head pumps.

Large buildings require a lot of power, but because of the nature of investment (whether for commercial or public buildings), geothermal heat pumps are rarely considered as an option. While expensive up front, they are inexpensive in the long run. Buildings over a certain size should be eligible to receive loans to construct geothermal energy sources that are competitive with current rates provided by more traditional sources of energy.

Lawn mowers.

Lawn mowers are surprisingly polluting because their 2-stroke engine results in incomplete combustion. (Leaf blowers are also very dirty). In fact, lawn movers constitute 10% of pollution from mobile sources, according to the EPA. They should be required to meet a higher standard, or perhaps be replaced by electric powered mowers or other types of entities.


SUVs should have to meet the same pollution standards as cars. This should phase in over a few years. The category of SUV (or sports utility vehicle) was not initially thought of as a mode of transit for regular commuting; if people use it that way, the vehicles should be held to the same standard.


Secret shoppers.

Few things are as annoying as long waits at government agencies (think the DMV) with often surly employees. The government should employ secret shoppers to make sure services are rendered quickly and efficiently as well as to make sure the data being reported back on activities are accurate.

I’m not going to get into other government administration issues as that starts to relate to my day job.

{ Liked this? You may also like Top 5 Federal OpenGov Efforts }

— Daniel Schuman

How Agencies Can Improve Proactive Disclosure

Agencies should set up a process to proactively disclose information that is of interest to the public on an ongoing basis. To help prioritize, agencies should look at requests made through the Freedom of Information Act, via other request-based systems (i.e., specialized forms for a particular dataset or document), and information regularly disclosed by public affairs and congressional relations offices.

Categories of information to consider for proactive release include: commercial (business-related), current events (relevant to journalists), ethics (relevant to government watchdogs, such as lobbying, ethics waivers, etc.), agency operations, and datasets (paper versions are disclosed to the public but the underlying dataset must be FOIA’d).

On a regular basis, each agency should review its efforts to evaluate the effect of proactive disclosure and whether additional documents/datasets should be proactively disclosed.

A Few Ideas on Getting Started

1. — Review how the agency already discloses information to the public.

Agency information is made available to the public in many ways. Some examples include:

  • As responses to FOIA requests
  • As responses to specialized request forms
  • Responses to media inquiries (by email, telephonically, and press advisories and releases)
  • As letters or reports to Congress or OMB
  • Information the agency is trying to place with media
  • Information disclosed in reports (already online) that are not in machine-readable formats

There may be others ways as well. Get a sense of how the public is accessing information.

2. — Get an understanding of how each of these information request processes work and obtain a representative sample of the kinds of requests being answered.

FOIA. Obtain the FOIA logs and randomly choose a significant number of requests (say 500 or 1000). Categorize each request based on the likely purpose for which it will be used: commercial, current events, ethics, agency operations, and datasets. Within each category, figure out whether the requests overlap a common dataset or series of documents.

Responses to specialized request forms. Create a list of the specialized information request forms that an agency uses to receive requests from the public. Determine the volume of requests received, on average, each year. For each form, figure out whether the information is pulled from a particular dataset or set of documents.

Responses to media inquiries. Reach out to press office staff to see whether they keep a media log, which tracks who has called and what they’ve called about. If it is exists, review a representative sample (pick a few random days) to see whether there is any commonality to the requests. Identify and list the most frequent requests. If not, look at releases and advisories pushed out by fax or email.

Reports to Congress or OMB. Make a list of all reports to Congress or OMB. Are they already available online, but not in one central place? Are multiple years grouped together? Are they available through FOIA or published through some other means?

Information to be placed with the media. Speak with press offices to get a sense of the kind of information commonly pushed to the public. Is it available online in one central place? How is the information presented?

Information disclosed but not in machine-friendly formats. Create a list of reports available on the website. Identify whether they are only available as PDF, or are they available in other formats as well, such as csv or doc?

3. — Prioritize

Looking at the information identified above, are there kinds of information that is requested again and again? If so, is it possible to disclose the underlying dataset or series of documents that underpin these common requests? Decide based upon the number of requests and the likelihood of use by the public.

Some clues to look for:

FOIA. Is information drawn from a certain source requested again and again? If so, is it possible to make the source information available to the public? If not, is it possible to create an expedited way of requesting that information? Or to pre-process that information as if it were already the subject of a FOIA request?

Responses to specialized forms. While being sure to include items from each category of information to consider for proactive disclosure, look at the most utilized special forms and determine whether it is possible to release the underlying information all at once.

Responses to media inquiries. Are there kinds of information requested again and again from press staff? Or types of requests that can be anticipated in the news cycle? If so, work with press staff to get ahead of the curve and disclose the information that is frequently requested.

Reports to Congress or OMB. If these reports routinely become available, publish them all online in a central place on the agency website as soon as they are issued. If there are concerns about redactions under FOIA, process through FOIA immediately prior to receiving a request, so they can be released at the same time or as close as possible to when the report is issued.

Information trying to be placed with the media. Publish the information as soon as possible.

Information disclosed but not in machine-readable formats. Work with offices and technology staff to make sure information published as a PDF is also published in other (open) formats as well, such as csv and doc.

4. — Two more things

(i) Talk to external and internal stakeholders. They know where the pain points are and can advise as to what would be most useful.

(ii) Look to see if an entity is broadly republishing the information the agency has provided. For example, some non-profit organizations will request an entire dataset and make it available all at once. In turn, many thousands of people will use that information. Instead of making the organization request that data, publish it online so it is available at once to everyone.

Examples of categories of information:

{ Liked this? You may also like A FOIA No-Brainer and A Checklist for Drafters of Transparency Legislation }

— Written by Daniel Schuman

Did the House Intelligence Committee Break Congressional Transparency Rules?

HPSCI Official Seal

A meeting of the House Intelligence Committee (also known as HPSCI, pronounced Hip-see) may have broken congressional rules when it neither webcast its proceedings nor provided appropriate notice. At its January 28th meeting, HPSCI should have debated and adopted rules for its operation, its oversight plans for the next two years, and more. The Intelligence Committee often keeps the the public in the dark, but still has an obligation to inform the public.


House of Representatives Rule 11(e)(5)(a) requires:

“to the maximum extent practicable, each committee shall…
provide audio of video coverage of each hearing or meeting for the transaction of business in a manner that allows the public to easily listen to and view the proceedings; and
(B) maintain the recordings of such coverage in a manner that is 
easily accessible to the public.”

And yet:

  • The committee’s webpage for the January 28th meeting does not contain a link to video of the proceedings. I could not find one on the committee’s webpage.
  • The congressional video repository maintained by the Library of Congress does not contain a video of the January 28th proceedings. The most recent video for HPSCI is from September of 2014.

There is reason to believe business was transacted, as new rules for the committee were posted on the committee’s webpage. However, there still is not a record of any business being conducted on the committee’s “business meetings” webpage.

The Committee could argue that it’s not “practical” to webcast its hearing, but considering everyone else does it and the House provides free cameras when requested, it’s a very weak argument.


Nowadays, committees provide notice of upcoming meetings at the congressional website A review of meeting notices for the week of January 28th, however, indicates there was no posting for HPSCI.

The Committee likely did provide notice of the hearing on its webpage, although there is no way to know when it was posted. However, that likely is insufficient. House Rules 11(g)(3)(C) require “an announcement made under this subparagraph [by the committee chair concerning meetings and hearings] shall be published promptly in the Daily Digest and made publicly available in electronic form.”

Under the Electronic Posting standards, promulgated by the Committee on House Administration, all committees must post documents, including public notices, on a central website… which is


Of all the congressional committees, the House Intelligence Committee is the most secretive — even more so than the Rules Committee, which governs how the House itself works. And yet because of the nature of HPSCI’s work, it’s important that it be as open as possible so the public can have confidence in the work it does. That confidence must be earned starting on day one when the committee establishes the rules under which it operates.

A coalition of organizations from across the political spectrum released recommendations on how HPSCI could be more open while still meeting its mandate. Those recommendation (letterwhite paper), were they to be put into effect, would have been voted on that first day. The Committee needs a do-over.

NB: I have not asked the committee for comment, but I’m sure they’d be happy to hear from you.

— Written by Daniel Schuman

Senate Torture Report: The Senate Speaks

On December 9, 2014, the Senate Intelligence Committee published a report severely criticizing CIA interrogation practices as brutal and ineffective. The committee released to the public a redacted version of the report’s executive summary — nearly 500 pages long — the culmination of seven years’ work. It includes the views of the majority of committee members, an additional statement by Senator Jay Rockefeller, and the views of dissenting committee members.

The full report is classified and runs nearly 6,700 pages. In announcing the release of the report, several senators, including the Intelligence Committee Chair, gave speeches on the Senate floor explaining their views and findings.

These speeches are a helpful, succinct introduction to what is now being called the Torture Report. Their remarks, with only minor edits and captions, are included in my new ebook, “Senate Torture Report: the Senate Speaks.”

In addition, I also include remarks made on December 10th by departing Senator Mark Udall, in which he calls for the resignation of the CIA Director and discusses flaws in congressional oversight.

(Update: the ebook is available through as ePub, PDF, full text, etc. Thanks Creeping Nounism.)

{ Liked this? You may also like The Grassroots and the Battle Over EncryptionSunsetting the Politics of Torture, and What Our Mass Surveillance Debate Gets Wrong }

— Written by Daniel Schuman

A Sense of Direction for Metro

Metro is rethinking signage for its subway system, as GreaterGreaterWashington recently reported. The current design, which uses the end station name to signal train direction, may be supplemented or replaced by the cardinal direction in which a train is heading. While it is an improvement, Metro should do more to improve wayfinding. As a start, Metro should:

  1. Assign numbers for all the stations on a particular line in numerical order in addition to using the names of station
  2. Identify a point of interest along the line to help orient passengers on the direction a train is heading, in addition to identifying the end station on a line
  3. Indicate whether the train is heading towards or away from DC (inbound/outbound), and for trains inside the city center, indicate the cardinal direction the train is heading.

Getting from A to B

These recommendations are made on the basis of how people conceptualize navigating. Generally speaking, humans use three techniques to navigate from point A to point B. First, some people have an inherent sense of direction and easily can distinguish north, south, east, and west. They merely need to be told to travel in a particular direction and the distance. Second, some people use landmarks to navigate. For example: travel down the street and once you see the gas station on your left, make a right turn and go until you see the library. Third, some people follow step-by-step directions. Go four blocks, make a left on L St., go another two blocks, your destination is on the right. Most people use a combination of these techniques. None of these techniques works particularly well in Metro. The stations are largely underground and indistinguishable from one another. A fair number of riders are out-of-town visitors who have not had time to build a mental map. Metro’s use of the final station on a line to indicate direction is confusing to many people, including long-time residents. Other considerations may arise for the visually impaired. And, of course, Metro’s cryptic signage system largely is unhelpful.

Best practices
Other transit systems use various techniques to facilitate wayfinding. One technique is to have transit stations on a line numbered in addition to having a name. For non-English-speaking visitors, this can be invaluable. Arabic numerals are widely used throughout the world and are easily understood. For out-of-town visitors, numbering stations allows passengers to anticipate how many stops until this time to exit the train. Additionally, increasing or decreasing numbers can be an easy clue as to the direction of train is traveling. This is used in Tokyo.

Another technique is to contextualize the direction of train is traveling. For example, New York City identifies trains are traveling downtown or uptown. Boston trains often indicate “ inbound” or “outbound.” London’s tube indicates cardinal direction). In other places, station signage will make it clear what the next station is in the line of travel. Or, perhaps more helpfully, indicate a significant point of interest in each direction.

Transit systems in other countries use a number of other techniques. Standard verbal announcements on trains and maps on trains that indicate the current location and the direction of travel are comparatively poorly implemented in DC’s Metro system. Similarly, Metro station signage is sparse, cryptic, and unhelpful. Often times, directions are not available at the points where passengers must make decisions. My favorite contextual clue is the musicplayed by each subway line in Tokyo.
By taking account of the different ways that people navigate and best practices from other transit systems, Metro could make itself more welcoming and reduce the number of passengers who are lost, confused, and underfoot.

Originally published at

— Written by Daniel Schuman

Electronic Toolbox for Congress

Here is a rundown of free digital tools any self-respecting congressional staffer, Member of Congress, journalist, or public advocate should consider using. All are free, run on information published by Congress or cobbled together from official sources, and most are built on open source code. (Many of the developers are members of the Congressional Data Coalition.)

{ Update: A more complete list of tools is here }

Committee Meeting Calendar

While you could pay $1000 annually to subscribe to a daily calendar of committee hearings, GovTrack publishes an automatically-updated calendarthat lists all hearings and meetings in the House in Senate at no cost to you. Alternatively, subscribe to GovTrack’s alerts, which tracks particular committees and bills.

Follow House Floor Action

The app Capitol Bells tells you whenever there is a House floor vote and provides essential context (such as what the vote is on). Used by more than half the Members of the House, it’s an essential tool to keep an eye on the floor.

Google Alerts for Government (but not Google)

The Sunlight Foundation’s alert tool Scout is the most powerful way to be alerted to government actions. It sends email alerts based on your keywords for federal and state legislation, federal regulations, floor speeches, GAO Reports, IG reports, and some federal court opinions. It’s like having a staff of well-payed research assistants constantly hitting refresh on dozens of congressional websites.

Collaboratively Write the Bill

Public input on legislation is often useful but only with the recent launch of Madison is there a free tool that allows broad public engagement while retaining control of the document. Built by the OpenGov Foundation, it is open source and used by Congress and the White House.

Read the Bill

While Congress’ redesign of its legislative information system has brought many needed improvements, it still lacks a lot of important contextual information. GovTrack has provided legislative information for a decade and should be your first stop. If you’re interested in the cost of legislation, Jim Harper’s WashingtonWatch is the place to go.

Read the Law

Until this past year, there was no single free online source for all bills signed into law. But now you can look up and read public laws to your heart’s content by going to Legislink. Of course, if you want to read the US Code, there’s the Office of Law Revision Counsel’s official website as well as the longstanding champion of public access to legal information, Cornell’s LII. (Cornell has a ton of other stuff, having been in the business of free online access to law since the early 90s, before everyone else).

Congressional Staff Directory

You might guess Congress publishes a staff directory with the names of staffers and their areas of responsibility, but only private sector sources are available. Fortunately, thanks to the hard work of the Sunlight Foundation, the website FindTheBest has a searchable directory of House and Senate staffers. It’s not perfect, but it’s pretty good (especially since it’s free). Sunlight has a downloadable version of the House information, too.

Inspector General Reports

Until very recently, it was impossible to find all the publicly available IG reports in one place. Thanks to the hard work of many volunteers, you can search IG reports from 65 offices at

Searchable Press Releases

Still a work in progress, Statementer pulls many congressional press releases into a central website searchable by the title of the release.

House Activities

While not third party apps, two congressional websites are worth their weight in gold. First, the website is a powerful source of information about House floor and committee activities. Second, the rules committee website in invaluable to see when a bill is ready to go to the floor (3 legislative days in advance), including any amendments that are offered.

A Few More Tricks

While these technically are not legislative-focused websites, they can be useful in monitoring/accessing information that is not user friendly.

  • ChangeDetection will send you an alert for whenever a webpage has changed. Certain committees have such awful websites that the only way to know what’s new is to get an alert when the page itself changes.
  • The Wayback Machine may be named after a cartoon time machine, but it allows you to see how websites appeared in the past. This is particularly helpful if a site has gone down or its content has changed.
  • Congress has a bad habit of purging congressional websites. But the web harvest, hosted by the Center for Legislative Archives, allows you to see congressional websites going back to 2006.

Final Thoughts

These websites are pretty cool, but there should be more of them. Even with recent progress, Congress and its legislative support agencies need to publish more information and do so in more useful formats. Congress also should enact legislation like the Access to Congressionally Mandated Reports Act, which will make additional troves of information publicly available. There also has to be further developments in how Congress collaborates with the public, whether through hackathons or the use of open source technology, but that is a discussion for another time.

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— Written by Daniel Schuman

A Checklist for Drafters of Transparency Legislation

Drafting legislation may be more art than science, but even the most avan garde artist considers the size of the canvas and the artwork’s composition just as drafters must think through the purposes of the legislation and how circumstances may change over time. What does it take to create robust, effective transparency legislation? Here are some guidelines. At the highest level of abstraction, I suggest drafters:

  1. Understand the context
  2. Use flexible implementation authority
  3. Create external checks on implementation
  4. Make information public by default
  5. Build in feedback loops
  6. Keep close watch on cost
  7. Watch out for tricky legislative language
  8. Figure out where to embed a program

1. Understand the context

0_Ne-ogL9tk5J4OIonWhen inspiration hits, it is useful to explore whether others have tried to solve a similar problem. Looking at other legislation that has been introduced (whether in the current legislative session or earlier ones), searching for testimony before committee and reports that discuss the problem being solved, and identifying reports by outside experts will highlight pitfalls and potential approaches to address an issue.

With transparency legislation in particular, having a sense of what has worked, whether it is considered a success, and how much it costs is an indispensable first step. As you do this, make sure you have a clear sense of what you are trying to accomplish. These goals should be reduced to writing and either be included in the legislation or an accompanying report. This will guide implementation and help ensure that you have created what you intended. As an additional benefit, it also may help with court interpretation should aspects of the program be challenged.

2. Use flexible implementation authority

0_u3_ozvrtnkqRvsHCWithin broad constraints, agencies should be given the authority to adapt to the times. For example, a requirement to post a job notice in the classified section of a newspaper makes little sense nowadays as most job seekers look on the Internet. Consequently, requirements regarding how an agency must notify potential job-seekers of an opportunity could be couched in language that requires an ad be placed where it is seen by thousands of people, without indicating the nature of the publication in which it must be published.

Legislation could include examples of the kinds of places that would satisfy publication requirement, but some discretion should be left up to the administrator. Similarly, the requirement to publish data online should not necessarily specify a particular format in which it must be published. Instead, the legislation should specify characteristics necessary to satisfy a publication requirement.

For example, it could say that data must be published in a structured format that is open, license-free, and capable of being reused. I will talk about data formats more in another blog post, although these principles are a good place to start.

3. Create external checks on implementation

While many agencies operate with the best of intentions, some will fall short by accident or otherwise. It is important to have in place a mechanism for the public (and professional watchdogs) to vindicate the right to full implementation. For example, the only reason the federal FOIA is successful is because it includes a private right of action.

The ability of a requester to go to court is the mechanism that helps encourage/force agencies to adhere to the law, even though this right is exercised only in a small minority of instances. Similar mechanisms exist in other contexts. On the federal level, the IRS, for example, pays money to people who blow the whistle on tax cheats, as does the Department of State for those who help with the apprehension of terrorists. A lawsuit brought under the False Claims Act, often referred to as a qui tam prosecution, allows people who are not affiliated with the federal government to bring a lawsuit against contractors who have defrauded the government.

All these tools empower a neutral third-party outside the agency (and the executive branch) to decide the merits of a claim. Overseas, ombudsmen have become commonplace as an inexpensive way to have a public advocate, paid by the government, address questions of oversight or maladministration.

On a related note, particularly in circumstances where other oversight mechanisms are not robust, we see the crucial role of whistleblowers. Federal whistleblowing law is a hodgepodge of law that often inadequately addressesgovernment misfeasance, malfeasance, and bad practices. Even whistleblowers whose activities are protected by law often suffer significant un-remediated retaliation.

When creating any new program or service, especially those related to reporting on the activities of government, it is essential to think through external mechanisms by which the public may vindicate its rights and the internal mechanisms by which whistleblowers are rewarded and protected when they identify significant problems.

4. Make information public by default

Through the normal course of business agencies create tremendous amounts of information. As a matter of practice, unless there is a very good reason not to that outweighs the public’s interest in disclosure, agencies should publish information on their activities. This can serve good government interests, but also may empower economic development, trust in government, the development of private-public partnerships or private innovation, and other advantages.

Elsewhere I have identified a way for agencies to identify and proactively meet requests for information dissemination. It can be summarized as requiring an agency to survey the different means by which information requests come into an agency, consider whether there are commonalities to those requests that can be addressed by discrete sets of information, and then publishing those documents or datasets.

Technology is making proactive disclosure much easier and governments should take full advantage of it. Where should agencies publish this information? On their websites and any places where information is aggregated. On the federal level, reports should be given to the Government Printing Office and raw data should be published on

5. Build in feedback loops

Just as it is important to understand how other legislation has fared, equally important is understanding how effective legislation is once enacted. The most successful legislative measures are self-correcting and capable of adapting with the times. Here are some feedback mechanisms that allow this to happen.

Administrative review. At regular intervals, program administrators should evaluate the effectiveness of the programs they administer in attaining their stated goals. These reviews should be accompanied when appropriate by recommendations to adapt the program to changing times consonant with the goals you’ve spelled out in the initial bill.

Public feedback. The public often is an end-user and a source of expertise on a topic. Mechanisms should be put in place for the public to communicate directly to administrators and to the congressional overseers. Just as important, the public must be able to receive a response to their concerns from the administrators and congressional overseers.

This can be accomplished through a designated “public liaison,” a GitHub account, regularly public meetings, and so on. In addition, reports on the effectiveness of programs and proposals to change implementation should routinely be made available to the public in ways that casual users would expect.

Expert feedback. Groups of experts should be invited to regularly provide input into the effectiveness and implementation of programs. At the federal level, this commonly is accomplished through the use of federal advisory committees — a standing group of citizens who regularly interface with program administrators and make recommendations on how program should evolve.

While there are some problems with current federal law that govern how federal advisory committees operate, there are good models to ensure that they are sufficiently transparent and balanced so as to make in a complement to broader public engagement and not merely an avenue for influence by special interests.

Internal auditors. Government auditors may provide crucial insight into how well the program is being administered and whether it is still serving its intended purpose. On the federal level, the Government Accountability Office (GAO) and the agency inspectors general often play this role. Periodic reviews by GAO and agency IGs (and their equivalents on the state and local levels), including regular reports to the agency, the legislature, and the public, are essential as a good housekeeping matter and will help identify problems as they crop up.

Empowering external review.Requiring an agency or internal oversight body to make reports available to the public and to the legislature is not enough. Legislation should address both the format of the reporting and who must sign off on it before it is transmitted.

The report’s format is very important. By way of example, for years federal agencies were required to report on their administration of the Freedom of Information Act (FOIA), but these reports were provided as PDFs even though they containing tables of numbers. Consequently, anyone wishing to evaluate the data would first have to transform the information into a digital format, an arduous and time-consuming task.

Requiring the reporting of FOIA data as an electronic spreadsheet has empowered much greater oversight of agency effectiveness and made the analysis available in near real-time. The use of dashboards creates a powerful incentive for across-the-board compliance with program goals. Reports — especially those containing policy recommendations — should be allowed (and often times required) to go directly from the entity making the recommendations to the legislature and the public.

We have seen that when agency reports must go up the food chain, especially when they are politically sensitive, the report can be held indefinitely or altered prior to publication. An even more insidious form arises when senior administration officials threaten an agency’s budget if a report is not altered. While it is not inappropriate for senior agency officials or others to be allowed to comment on a report, and in some instances to have a heads-up prior to release, all too often the substance is sacrificed for political reasons. Direct reporting authority on policy recommendations is a must to make sure the feedback loop functions properly.

Generally speaking, reports — whether generated by an agency, an IG, external auditors, or others — should be kept in a central location in addition to publishing on the agency and committee of jurisdiction’s website. At the federal level, the Government Printing Office maintains a website containing thousands of documents. All reports should be submitted to GPO (or a similar entity playing a repository role) for safekeeping and online access in addition to any other means of dissemination. This ensures reports are available to the public even after an agency “refreshes” its website, committee staff turnover, and so on.

6. Keep close watch on cost

Nothing will sink a bill faster than a high price tag. For transparency bills, there are useful ways of addressing a high price tag. To the extent information publication mechanisms exist, such as GPO’s FDSYS and, they should be used instead of building new websites.

Publication of bulk data by the government will often spur non-profits and others to build more clever websites than the government would have built itself, and at a lower cost. Similarly, if there are commonly-accepted methods of redacting sensitive information, agencies should make use of those systems, and make sure that information once processed is released to the public, and not processed every time a request is received.

In addition, legislation should require agencies to gather and publish the information they use, and to use the information they publish. Requiring agencies to “eat their own dogfood” will help address data quality issues and make sure the public has access to the real deal.

It is important to decide strategically how the public and experts will weigh in programs. While advisory committees, IG reports, and the like are very valuable, an all-of-the-above strategy can be expensive. If pressed for money, figure out where you’re likely to get the most bank for the buck.

Also, consider whether you want your transparency program to be independent or embedded in an existing agency. Creating a new thing can be costly, so determine whether it is necessary to protect implementation from undue interference. There is no magic bullet to identifying hidden implementation issues that can balloon costs once a program is underway. The best advice is to talk to staff who must implement the legislation, keeping in mind they may have an ax to grind or be unwilling to talk.

Former staff can be helpful in circumventing some political problems with obtaining honest advice. Sometimes outside non-profits will have built models that accomplish what the transparency legislation is trying to achieve, and they can be a useful source of expertise identifying pitfalls.

7. Watch out for tricky legislative language

Drafting legislative language, especially when a bill is meant to be generally applicable to the government, can be quite tricky. Here are couple common pitfalls.

Definition of Agency. Although one might think that there would be a single definition for agency there is not. For example, on the federal level, the term “agency” is defined in multiple places in the US code and you should pick the kind of agency that best reflects your goals.

Do you want to cover the entire executive branch? Do you wish only to cover the agencies inside the executive branch that are under the control the president (and thus preserve the independence of the so-called independent executive branch agencies)? Do you want to include legislative and judicial agencies as well?

In all the circumstances, have you thought through the separation of powers issues that arise from the scope of your definition of agency?

Definition of Record. When referring to how the government stories information, the term of art is often a “record,” at least at the federal level. But record is defined in various ways throughout the US Code. It is important to cite to the definition that you want and know what it does and does not cover.

Level of detail. This is a tricky matter. Legislative staff — particularly senior staff — strongly prefer to avoid too much detail in legislation. Agencies in some circumstances really dislike detailed instructions. However, a significant level of detail is necessary to ensure agency staffers comply with congressional intent (and give them protection so they can say they are following the law). While it is helpful to include finding in the legislation or committee report, this is an issue that often must be negotiated.

Budget Score. At the federal level, all legislation must be scored by the Congressional Budget Office. Too high a cost estimate can sink even the most promising bill, even if the bill will save more money than it costs, in part because the Congressional Budget Office engages in static scoring. There are a handful of tricks that often are employed to keep the cost projections down. For example, the date of full implementation of a program often is a decade after the legislation is enacted. Or another program is found to be eliminated as an offset.

Inclusive/ exclusive lists. Often times, legislative language includes a list of what an agency should do. For example, it may say: “For the purposes outlined above, the agency report should include, but not be limited to, X, Y, and Z.” However, this is often read by agencies as saying the must only do X, Y, and Z. A slightly better form is “for the purposes outline above, the agency report should include, X, Y, Z, and all other items that further the purpose….” Be aware that lists can often be interpreted as excluding behavior, not just requiring it. Smart legislation will also require disclosure of interpretations of language by agencies.

FOIA. Legislators often look for a formula to make sure sensitive information is withheld. Often times, at the federal level, the easiest way to do this is to include the FOIA disclosure exemptions (see 5 USC 552(b)) to say what can be withheld.

However, be sure to include a balancing test whenever invoking that section of law. Something like, “Unless required to be withheld under law, records should be made available to the public unless the public’s interest in disclosure is significantly outweighed by the agency’s interest in withholding the records under the exemptions outlined in 5 USC 552(b).” In many instances, you can narrow further beyond the FOIA exemptions, which often are too protective.

Principles of statutory interpretation. Courts use many rules to interpret legislation to determine legislative intent. For all practical purposes, for every rule that says X there’s another rule of interpretation that says the opposite. Even so, this Congressional Research Service report may be helpful in determining how a court would interpret particular language.

Borrow language. Policymakers are most comfortable with language that has been used before. Scour current law or already drafted bills for legislative language. Sometimes members will introduce message legislation that includes a broad range of transparency measures (such as the Transparency in Government Act). While the entire bill will never pass as is, there’s nothing wrong with pulling apart the bill and piggybacking on existing language. That’s why it exists. Similarly, it is best to keep language as simple as possible unless your goal is to confuse review and evade oversight.

Get a lawyer. Spotting potentially ambiguous language is something lawyers do best. Get a good one (or multiple attorneys) to try to identify and address any legislative loopholes.

Committee jurisdiction. Usually, the fewer committees that have jurisdiction over a bill the fewer complications. The right language can keep a bill from being referred to an unfriendly committee or referral to multiple committees. The language you use will determine its path.

Naming the bill. While it’s not strictly legislative language, at least one academic study indicated the name of a bill does affect its likelihood of passage. It’s stupid, but the name is all that many people look at. So pick a snappy name or acronym and has a positive connotation.

8. Figure out where to embed the program

For programs that affect multiple agencies, consider where to house the program. Each of the potential locations has attendant risks and benefits. For example, at the federal level, the Office of Management and Budget has great authority executive branch (non-independent) agencies and expertise with rulemaking. However, it also is close to the White House and has a dual role of protecting the president’s agenda.

Sometimes these wires get crossed. The General Services Administration, as an independent agency, is viewed as more impartial by other agencies. However, it generally does not enjoy the extensive rulemaking authority used by OMB and has a mixed reputation, even though it has been successful in a number of areas.

The Treasury Department, while an executive branch agency, has particular expertise in fiscal matters and in some instances may be a better fit than OMB. Legislative branch agencies are more likely to be independent of the White House than even independent executive branch agencies. The Congressional Budget Office is a more trusted source for independent evaluation of the president’s budget than OMB; Congressional Research Service reports are more dispassionate than opinions from the Justice Department’s Office of Legal Counsel; the Government Accountability Office provides more independent oversight than OMB, etc.

Some programs can be embedded in multiple agencies. This can be problematic when one agency must consult with another. Having a clear decision-making authority, with only the need to consult other agencies, often is preferable to requiring the consent of another agency to proceed.

Concluding Thoughts

A lot goes into drafting successful transparency legislation and this blogpost only scratched the surface. Not discussed are all the political considerations, how to find the right sponsors and identify allies, how to prioritize ideas, whether the bill is intended as model legislation or addressing a particular target, naming and marketing the bill to the legislature and the press, navigating committee jurisdiction, and so forth. You could write a book about those topics.

For my part, future blogposts will identify language from current federal legislation that is worth borrowing and go into detail about language to use when talking about data. I’d love to hear your feedback.

{ Liked this? You may also like A FOIA No-Brainer and How Agencies Can Improve Proactice Disclosure }

— Written by Daniel Schuman