Tag: Executive Branch

A FOIA No-Brainer

Last week, the Obama administration announced a new approach for FOIA: responses to requests will be published online immediately. This six month pilot program washes away agency practices of publishing FOIA responses online only after three requests for the same documents. While a seemingly trivial distinction, it has the real world effect of forcing agencies to publish responses online immediately, bypassing agency worst-practices of avoiding publication entirely by refusing to count requests.

Seven agencies will participate in the pilot: Environmental Protection Agency, Office of the Director of National Intelligence, and the Millennium Challenge Corporation, and components of the Department of Defense, Department of Homeland Security, Department of Justice, and National Archives and Records Administration.

Throughout the process, the Justice Department’s Office of Information Policy requests feedback from the public at [email protected]. This new disclosure approach is sensible, and complements recommendations I have made elsewhere on proactive disclosure of information of interest to the public. It also fits nicely with FOIA legislation pending in the House and Senate.

I must take issue with some of our journalist friends who have complained about the pilot program. They’d prefer a head start to receive and analyze documents and not get access at the same time as the hoi polloi. They forget the purpose of the FOIA, as described by the Supreme Court in 1973, is for “people to know what their government is up to.” (emphasis added)

Representatives of the news media already receive a special benefit under the law: fee waivers for record searches and reduced duplication costs. But the law does not provide for delayed public release. In any event, a “head start” is unworkable in practice — what if two or more requests for the same information is pending ? must an agency to keep special track of journalists? — and many others could make the case for special access.

{ Liked this? You may also like How Agencies Can Improve Proactive Disclosure and A Checklist for Drafters of Transparency Legislation }

— Written by Daniel Schuman

Top 5 Federal OpenGov Efforts

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Photo credit: SDOT photos

In recent years there has been a lot of talk about opengov at the state, local and international levels, but when it comes to the federal government people just shake their heads and mutter. That is unfortunate, because a lot is happening at the federal level.

Here are five areas where the federal government is making major strides.

5. Innovative uses of technology

When you think of how the government uses technology, innovation often is not the word that comes to mind. More often it’s thought of as clunky, slow, out-of-date, insecure and expensive. But the executive branch has taken a step towards addressing these issues by creating 18F.

18F bills itself as “building the 21st century digital government.” It is an inside-government consultancy that builds technology for government on a cost-recovery basis. Housed at the General Services Administration, 18F addresses the twin problems of outside contractors who build cruddy tools that cost a ton of money as well as underfunded government developers who must use inadequate tools in unfriendly environments. Private sector developers are brought into government in the equivalent of a technology startup to help agencies build new tools and change the way they engage with technology. Most importantly, they work to change the culture around government information technology.

18F connects to opengov because many of its projects are opengov-related and the tools it builds are developed in the open. Projects include cleaning up Federal Election Commission data, a consolidated FOIA request hub, making federal spending transparent and rethinking the portal MyUSA. 18F is changing the way government uses technology, which often results in better, faster disclosure of government information.

4. Open courts

Unfortunately, federal courts are awful about opengov. But I did not want to let the opportunity to praise some great work being done on the federal civil society side, notably Courtlistener, Oyez, ScotusBlogand Cornell’s Legal Information Institute. Respectively, they provide alerts for and deep content regarding federal court decisions; publish audio and transcripts of Supreme Court decisions from 1955 forward; provide real-time reporting and context for current Supreme Court activities; and provide access to many Supreme Court opinions.

3. Improved efforts to provide access to executive branch information

Over the last six years, both Congress and the executive branch have made serious efforts in proactively and responsively releasing information to the public, at least in some (non-national security) arenas.

The most notable effort has been in legislation to fix the Freedom of Information Act. Significant FOIA legislation passed the House and Senatelast Congress, but in slightly different forms so it has yet to be signed into law. The Obama administration, most notably the Department of Justice and financial regulatory agencies, fought against much-needed efforts to improve FOIA because it dared codify a presumption of openness and would require the public’s interest be weighed when evaluating whether to release information the executive branch deemed privileged. The legislation slowly is moving towards passage this Congress.

Other notable efforts ongoing on the FOIA front include the establishment of a FOIA advisory committee, an effort to unify FOIA regulations across all agencies and the construction of a central online FOIA request portal.

On the proactive disclosure side, the Obama administration conducted a survey of all the datasets it held, and — after a FOIA lawsuit — has agreed to release the inventory to the public. It also continues to publish a log of many of the visitors to the White House. And the administration is engaging in a biannual open government planning process, where many agencies publish a plan for releasing information to the public and follow through on some of their commitments; there’s also an international process around domestic transparency commitments. The Data.gov website, which publishes some federal datasets, also is of some value.

Still, there is a long way to go.

Congress has considered (and in a few instances passed) other notable legislation, including the DATA Act discussed below. Also on the docket is a bill — the Access to Congressionally Mandated Reports Act — that would require all agency reports to Congress be published online. The Presidential Library Donations Reform Act, which requires disclosure of donations to presidential libraries, is poised for consideration by the full House and Senate. There are other smart bills being drafted and considered as well.

2. Publishing federal spending information

Last Congress, the DATA Act was signed into law. This bipartisan measure would make much federal spending information available to the public, and would have gone further if not for strong oppositionfrom the Office of Management and Budget. The regulation governing the law currently is jointly being written by OMB and Treasury. By incorporating unique identifiers, following federal spending at a great level of detail and pushing information into a central repository, the DATA Act holds out the promise of transforming our understanding of federal spending. New legislation to extend the DATA Act also has been introduced.

Federal responding requirements like the DATA Act can be transformative. Whatever the merits of the2009 economic stimulus bill, the transparency requirements around the $787 billion legislation have had surprising results: “spending transparency became institutionalized in some states.” In some cases, the availability of Recovery Act data marked the first time officials were able to monitor performance trends for federal contracts, grants and loans across all state agencies. If properly implemented, the DATA Act can have similar follow-on benefits.

1. Open legislative information

By far the most remarkable transformation has been in public access to legislative information. The work to make congressional information available to the public in a structured data format and in bulk has been transformative, and the House literally has changed the way it operates to make this happen. We are here only because of a bipartisan commitment by House leadership who have labored without great acclaim against high bureaucratic barriers to modernize congressional operations.

There’s too much to point out all of the changes, but here are the highlights.

This is no less than a revolution in how Congress makes information available to the public. In turn, it has empowered a huge federal civic technology community that transforms the new data and tools into new ways to communicate with Congress, analyze information and make government more efficient and effective. Literally millions of people each month are directly or indirectly accessing federal legislative information because of this process. The Senate is not as far down the path as the House, and the Library of Congress is notable for its foot-dragging, but we have seen real, tangible, important progress.

Concluding thoughts

What makes all this progress even remarkable is that advocates for opengov at the federal level, especially when it comes to legislative information, have received much less attention recently than advocates at other levels of government. A lot is happening at the federal level, and if we keep working at it the possibilities are endless.

Cross-posted at the Sunlight Foundation blog.

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— Written by Daniel Schuman

What Our Mass Surveillance Debate Gets Wrong

Debate is swirling in Washington about the sunset of the USA PATRIOT Act’s section 215, which the administration has twisted to support mass surveillance, but the focus of the conversation reinforces the narrative of national security hardliners. The question should not be whether to reauthorize section 215, which even its author says was never intended to allow mass surveillance. That’s a no-brainer. The question is whether to investigate and root out the pro-surveillance agenda that sprouted after 9/11 and has borne the strange fruit of mass surveillance, secret law, secret courts, and unchecked executive power.

In some ways, this is a tale of seduction and corruption. The Intelligence Community has long held out the allure of secret knowledge and quick fixes to national security problems that has entranced presidents and members of the House and Senate intelligence committees. On the other hand, they claim increased power is the only way to reduce danger to Americans. The record shows, however, that the intelligence community often cannot deliver what it promises and its actions can create the dangers policymakers seek to minimize.

These dangers have only been exacerbated by the blank check given to them by the Bush administration and endorsed by the Obama administration that allows them to operate at and beyond the edge of the law. For example, opinions issued by the Department of Justice’s Office of Legal Counsel have blessed all sorts of illegal behavior, including torture, only by twisting the law and Constitution out of shape and making sure anyone who could complain about the opinions—even Congress—was out of the loop or kept out of court. Similarly the Foreign Intelligence Surveillance Court, originally charged with deciding whether to approve wiretap warrants, created an expansive body of secret law that approved mass surveillance and sharing of personal information among members of the Intelligence Community. In a democracy, the law is not supposed to be a secret and these decisions should be up for public debate.

The greatest check on unlawful executive branch behavior, Congress, is out of the loop. Often times, the Executive branch fails to share (or selectively shares) crucial information about—or even the existence of—its activities with its Congressional overseers. Sometimes members of the Executive branch flat out lie. For its part, Congress has weakened its ability to get at the truth and its Intelligence committees largely have abdicated their oversight roles. In fact, some members of Congress who are supposed to hold the Intelligence Community to account have an odd version of Stockholm syndrome where they sympathize more with the eavesdroppers than ordinary Americans. Congress must rethink how it does oversight.

The Executive branch has even taken it upon itself to assert and interpret its Constitutional powers to preclude a check by the other branches in national security matters. Many, including a whistleblower who made his concerns public, believe Executive Order 12333 is used by the administration to engage in mass surveillance. Breathtakingly, the administration in turn says EO 12333 actually is a voluntary limit on the Executive Branch’s constitutional powers, which may be broader, and Executive Order limits can be waived at will by the president. Where does it say this? In a secret Office of Legal Counsel opinion, of course.

We have a troubling set of circumstances. Secrecy is used to buttress secrecy; the constitutional checks-and-balances have become unraveled. And yet we spend time debating how much to pack into legislation addressing section 215, the elimination of which would not even end mass surveillance. Even worse, some members of Congress, such as Senate Majority Leader Mitch McConnell, have introduced legislation to leave section 215 alone for the next half decade. We do not impugn the hard work of many members of Congress and congressional staff who have worked feverishly to fix section 215, even the national security die-hards, but the unnaturally narrow debate says volumes about the blinders Congress has placed on itself.

This is why we endorsed a letter, signed by a bipartisan array of 60 non-profit organizations, businesses, and whistleblowers, that calls for comprehensivereform. We need to know what has been done in our names. We must empower Congress to perform its oversight responsibilities and protect whistleblowers when they expose illegality. We must end secret law and open up secret courts. We must end domestic mass surveillance, no matter under what authority it takes place. These are the crucial issues. This is the debate worth having.

{ Liked this? You may also like The Grassroots and the Battle Over Encryption, Sunsetting the Politics of Torture, and Senate Torture Report: The Senate Speaks }

— Written by 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

Who Counts as a Whistleblower?

Disclosures about the National Security Administration’s (NSA) surveillance programs have prompted a discussion on whether the person who released that information, Edward Snowden, could properly be deemed a whistleblower. The word whistleblower is important because it frames how we think of him and what should become of him.

By definition, whistleblowers are people who “expose wrongdoing within an organization in the hope of stopping it.” The term may be contrasted with leakers, defined as “surreptitious informants” and carrying the connotation of self-interested or sinister motivations. There can be an overlap between the terms, best exemplified by Watergate’s deep throat, FBI Associate Director Mark Felt, who shed light on massive government wrongdoing but did so in part out of petty motivations. Continue reading “Who Counts as a Whistleblower?” →

39% of Office of Legal Counsel Opinions Kept from the Public

The Department of Justice is withholding from online publication 39% (or 201) of its 509 Office of Legal Counsel opinions promulgated between 1998 and 2012, according to a Sunlight Foundation analysis. This apparently conflicts with agency guidance on releasing opinions to the public as well as best practices recommended by former Justice Department officials.

OLC Opinion Graph Continue reading “39% of Office of Legal Counsel Opinions Kept from the Public” →