Sunshine Week in Review

By Elizabeth

As Emily recently shared, last week marked the ninth annual Sunshine Week, a time to reflect on the state of public access to government information and work together to make our government more transparent. In addition to the release of two new reports to which AALL contributed, we were busy celebrating Sunshine Week at events across Washington, DC.  Read on for event recaps and a few exciting legislative developments.

On Wednesday, the Senate Judiciary Committee held a hearing entitled “We the People: Fulfilling the Promise of Open Government Five Years After the OPEN Government Act.” Under the leadership of Chair Senator Patrick Leahy (D-VT) and Ranking Member Senator Chuck Grassley (R-IA), the committee expressed frustration with federal agencies’ inability to comply with a 2007 open government law that Congress enacted to accelerate processing of Freedom of Information Act (FOIA) requests. On the first of two panels, witnesses included Miriam Nisbet, Director the Office of Government Information Services, which was created by the OPEN Government Act, and Melanie Pustay, Director of the Office of Information Policy at the Department of Justice. On the second panel, consisting of open government advocates, speakers charged Pustay with exaggerating the progress of the Obama administration. While agencies have improved the processing of FOIA requests by reducing average processing times and cutting down on the backlog of requests, the information available to requestors is still unsatisfactory. Full releases of documents declined to the lowest level on record in 2012, while 52 out of 99 federal agencies have not changed their freedom of information regulations to meet the requirements of the OPEN Government Act of 2007. The Justice Department has been particularly problematic, testified Thomas Blanton, director of the National Security Archive at George Washington University. Pustay contended the new regulations were optional.

At the same time as the Senate hearing, the House Committee on Oversight and Government Reform hosted its Sunshine Week event, a hearing entitled “Addressing Transparency in the Federal Bureaucracy: Moving Toward A More Open Government.” Committee Chair Representative Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MO) used Sunshine Week as the impetus for introducing draft legislation to amend FOIA.  The draft bill, which AALL supports, is ”designed to strengthen transparency by ensuring that legislative and executive action to improve FOIA over the past two decades is fully implemented by federal agencies,” said Rep. Issa.

Representative Wm. Lacy Clay (D-MO) also reintroduced legislation on Wednesday aimed at enhancing transparency. H.R. 1104, the Federal Advisory Committee Act Amendments of 2013, would strengthen the Federal Advisory Committee Act (FACA), landmark legislation authored by Rep. Clay, Rep. Cummings, and Rep. Gerald Connolly (D-VA). “This bill opens up the Federal Advisory Committee selection and oversight process by providing greater transparency and ensuring real independence for appointees,” said Rep.  Clay.  “The act also imposes much tougher standards to ensure that committee members are insulated from political pressure to influence their recommendations.  Finally, my act would require any FACA appointee selected by the President or an agency to provide expert advice to fully comply with all conflict of interest rules and federal ethics laws.”

Other Sunshine Week events included a timely panel discussion on secrecy, security, and classification reform, hosted by the Brennan Center for Justice. Panelists heard from Public Interest Declassification Board (PIDB) Chair Nancy Soderberg on the PIDB’s recommendations for a classification system overhaul and responded to the proposals. The issue of how the US government treats state secrets has gained much attention in recent weeks as the White House has come under intense pressure to make public OLC memos on the targeted drone program—in part thanks to a 13-hour filibuster by Senator Rand Paul (R-KY).

We concluded Sunshine Week by co-sponsoring the annual National Freedom of Information Day conference at the Newseum, which brought together groups concerned with freedom of information and open records, including FOI advocates, government officials, lawyers, librarians, journalists and educators. This year’s program invited members of the Obama administration to engage in conversation with open government advocates over the progress seen in the President’s first term. The late internet activist Aaron Swartz was this year’s recipient of the ALA James Madison Award, while winners of Sunshine in Government Award included Senator Ron Wyden (D-OR) for his commitment to openness and transparency, and Environmental Protection Agency employees Tim Crawford and Larry Gottesman, who created FOIAOnline.

House Approves Legislative Branch Appropriations Bill While Leadership Prioritizes Bulk Access

The House of Representatives approved the Legislative Branch Appropriations Act for Fiscal Year 2013 (H.R. 5882) today by a vote of 307-102. The bill spends $3.3 billion overall, about $33 million below the FY 2012 level and $190 million below the requested level.

Under the bill, the Library of Congress receives $592.6 million, an increase of $5.3 million above the FY 2012 enacted level and $10.9 million below the requested level. The bill allocates $122.6 million for the Government Printing Office (GPO), $3.6 million below the FY 2012 enacted level and $3.6 million below the requested level. GPO’s request for Congressional Printing and Binding and the Salaries and Expenses of the Superintendent of Documents is fully funded by the bill.  The bill cuts GPO’s Revolving Fund to about $4.1 million, $3.75 million below the requested level. However, in a message on the FDLP Desktop, Superintendent of Documents Mary Alice Baish assured readers that GPO has sufficient funding to continue the development of FDsys, including improving the search engine and digitizing the permanent edition of the Congressional Record.

After much attention was given to the subcommittee’s appropriations report language about access to bulk legislative data, the House’s leadership issued a statement adopting the goal of “provid[ing] bulk access to legislative information to the American people without further delay.” In the statement, Speaker John Boehner R-OH-08), Majority Leader Cantor (R-VA-07), Legislative Branch Appropriations Subcommittee Chairman Crenshaw (R-FL-04), and Oversight and Government Reform Committee Chairman Issa (R-CA-49) direct the creation of a task force to expedite the process of making XML information available to the public. The task force will include representatives from the Library of Congress and the Government Printing Office, House leadership and key committees, the Clerk of the House, and the House Chief Administrative Officer. The leadership writes: “Because this effort ranks among our top priorities in the 112th Congress, we will not wait for enactment of a Legislative Branch appropriations bill but will instead direct the task force to begin its important work immediately.”

As the House moves forward with the release of bulk access to legislative data, AALL will continue to work to support efforts to ensure that the data is timely, accurate, and trustworthy.

Senate Judiciary Committee Approves Chairman Leahy’s PATRIOT Act Extensions

Thanks to your calls and emails in response to our action alert, the Senate Judiciary Committee yesterday approved the USA PATRIOT Act Sunset Extension Act of 2011 (S. 193) by a vote of 10-7.

S. 193, introduced in January by Judiciary Committee Chairman Patrick Leahy (D-VT), would extend the three provisions now set to expire on May 27, 2011 until 2013. AALL strongly supports this bill because it would raise the standard for Section 215 orders by requiring the government to show that the tangible things sought are relevant to an authorized investigation and connected to a suspected agent of a foreign power. The bill also includes a December 2013 sunset on National Security Letters.

On February 14, 2011, AALL, the Medical Library Association and the Special Libraries Association sent a letter to Chairman Leahy in support of the bill.

Congress Passes Harman Bill to Reduce Overclassification

Earlier this week, the House and Senate voted to approve the Reducing Over-Classification Act (H.R. 553), introduced in January 2009 by Rep. Jane Harman (D-CA-36) and amended by Sen. Joe Lieberman (ID-CT). The bill, as amended, includes the following requirements to reduce overclassification in the Federal government:

• The Secretary of the Department of Homeland Security must designate a “Classified Information Advisory Officer” to improve information sharing with state, local, tribal and private sector entities that have responsibility for the security of critical infrastructure.
• Inspectors general of departments which classify information must work with the Information Security Oversight Office to carry out at least two evaluations by 2016 to assess their department’s classification policies, procedures, rules and regulations.
• The heads of departments which classify information must institute annual training for each employee who has original classification authority.

According to AALL’s Government Relations Policy, “Statutes and regulations governing security classification should be construed to promote open government while acknowledging the need for FOIA exemptions.” AALL strongly supports H.R. 553 and we are pleased with its passage. For more information about current classification policy in the Federal government, please read our Issue Brief.

[Posted by Emily Feldman]

Sen. Jeff Sessions Blocks Important Bill to Increase Access to Presidential Records

As the Senate Judiciary Committee prepares for the June 28 nomination hearing of Elena Kagan to the U.S. Supreme Court, Ranking Member Jeff Sessions (R-AL) has been outspoken about what he considers to be the slow release of records from the Clinton Library to the committee. Ironically, Sen. Sessions has put a hold on the Presidential Records Act Amendments of 2009 (H.R. 35) that would help to avoid such delays in the future by ensuring the timely release of presidential records to the public.

The release of presidential records is governed by the Presidential Records Act (PRA) of 1978, as amended by Executive Order (E.O.) 12667, which establishes that the public records of our presidents are government property and therefore belong to the American people. Unfortunately, the PRA has been weakened over the years by presidents who wish to keep their records out of public reach.

In 2001, President Bush issued E.O. 13233 granting an incumbent or former president veto power over any public release of materials by the Archivist even after the expiration of the required 12-year withholding period. This executive order was in clear opposition to the intent of the 1978 law, and AALL immediately joined other open government groups in supporting legislative efforts to overturn it. We were pleased when, on his first full day in office, President Obama issued E.O. 13489 to revoke President Bush’s executive order and establish a stronger standard for public access.

AALL supports the Presidential Records Act Amendments of 2009 because it would ensure that the important openness provisions of President Obama’s executive order become law. The bill would establish reasonable standards for the release of presidential records and restore the balance between a president’s ability to withhold certain records for a limited time period and the public’s right to access them.

The House passed H.R. 35 on January 7, 2009 by an overwhelming vote of 359-58. The Senate Committee on Homeland Security and Governmental Affairs reported the bill favorably on April 1, 2009 with an amendment that extends the amount of time an incumbent and former president may review their records before release.

Kagan served as Associate Counsel to President Clinton from 1995 to 1996 and as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council from 1997 to 1999. It’s unfortunate that Sen. Sessions doesn’t recognize that the important piece of legislation he is holding from a floor vote would address his concerns about the delays in getting access to Clinton-era presidential records. We urge him to immediately lift his hold.

To learn more about the history and status of public access to presidential records, please read our Issue Brief.

[Posted by Emily Feldman]

Sunshine Week Shines Light on FOIA

It’s been just over a year since Attorney General Eric Holder issued new guidelines to executive branch departments and agencies on the implementation of the Freedom of Information Act (FOIA). The guidelines, which direct agencies to adopt a presumption in favor of disclosure when responding to FOIA requests, reflected President Obama’s memorandum on FOIA that he released on his first full day in office.

While Attorney General Holder’s guidelines and President Obama’s memorandum sent a clear message to agencies that they must take steps to improve their FOIA practices, many agencies have not followed through. A new audit by the National Security Archive, released last week during Sunshine Week, found that only 13 agencies that responded to the Archive have made concrete changes in their FOIA practices. In addition, several agencies continue to have severe backlogs in processing requests, with some requests lingering for as many as 18 years.

On March 15, Sen. Patrick Leahy (D-VT) and Sen. John Cornyn (R-TX), long-time FOIA advocates and the authors of the OPEN Government Act (P.L. 110-175), introduced the Faster FOIA Act (S. 3111). AALL joined 33 other open government groups on a letter to Senators Leahy and Cornyn in support of the bill, which would establish the Commission on Freedom of Information Act Processing Delays. The Commission would be charged with producing a report to Congress and the President within one year, after which the Commission would terminate, that recommends steps that should be taken to reduce delays in the administration of FOIA. This important bill would help address the serious long-standing problem with FOIA backlogs that the National Security Archive has repeatedly found in their excellent series of annual audits.

[Posted by Emily Feldman]

Amendment to Intelligence Authorization Act Requires an IG Report on Over-classification

On February 26, the House approved an amendment to the Intelligence Authorization Act for Fiscal Year 2010 (H.R. 2701) to require the Inspector General (IG) of the Intelligence Community to prepare a report on the problem of over-classification. The amendment, introduced by Rep. Jane Harman (D-CA-36), Chair of the House Homeland Security Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment, requires the IG to produce a report containing an analysis of over-classification and how it should be addressed. On February 23, AALL joined seventeen organizations on a letter to Rep. Harman in support of her amendment.

While we urged the passage of the Harman amendment, we prefer the requirements in President Obama’s Executive Order on Classified National Security Information (E.O. 13526), which goes farther than the Harman amendment by directing agencies to start taking real action to address over-classification. For example, classifying agencies have been directed by the E.O. to perform a “fundamental review” of their classification guidance to update it where necessary and to identify classified information that no longer requires protection. In addition, the E.O. established the National Declassification Center within the National Archives and Records Administration to help reduce the backlog of declassified records.

For more information on classification policy, please read our updated Issue Brief, which analyzes the President’s E.O. and current legislation to increase oversight and training to reduce over-classification.

New Issue Brief on the State Secrets Privilege

AALL Government Relations Committee member Cindi Ernst wrote an excellent new issue brief this month on the state secrets privilege. This timely issue brief provides background information on the development of the privilege since it was first asserted by the government more than fifty years ago, and updates on recent efforts for reform.

Legislation in the Senate (S.417) and House (H.R. 984) would reform the state secrets privilege by requiring judges to review the government’s claims of executive privilege and the classified evidence in question. AALL supports both bills.

[Posted by Emily Feldman]

House Judiciary Committee Passes PATRIOT Reauthorization Bill

Yesterday, the  USA Patriot Amendments Act of 2009 (H.R. 3845) was reported favorably out of the House Judiciary Committee by a vote of 16-10. During the mark-up, the Committee adopted Chairman Conyers’ manager’s amendment that tightens the standards for issuing National Security Letters and adopts important new reporting, audit and oversight provisions. Unfortunately, the committee also adopted an amendment offered by Rep. Adam Schiff (D-CA-29) that struck the “specific and articulable facts” language for Sec. 215 orders.

Thank you to all of you who took action on our alert to ask your representatives to co-sponsor H.R. 3845. Earlier this week, AALL, MLA and SLA sent a letter to Chairman John Conyers (D-MI-14), Jerrold Nadler(D-NY-8) and Bobby Scott (D-VA-3) to express support for the bill.

As we reported in the October E-Bulletin, the Senate Judiciary Committee reported the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692) favorably out of committee on October 13. The bill will now go to the Senate floor for a vote.

For more information about the fast-moving PATRIOT Act reauthorization process, please take a look at our updated Issue Brief.

[Posted by Emily Feldman]

Senate Judiciary Committee Holds Mark-Up of USA PATRIOT Act Reauthorization Legislation

The Senate Judiciary Committee held an Executive Business Meeting yesterday to consider legislation to reauthorize the three expiring provisions of the USA PATRIOT Act. You can view the Webcast of the mark-up here.

The original bill scheduled to be considered, the USA PATRIOT Act Sunset Extension Act of 2009 (S. 1692), would raise the standard for all Section 215 orders by requiring that the government demonstrate a connection between the tangible records they seek and a suspected terrorist, and add more meaningful judicial review of Section 215 orders and the associated gag orders.

Prior to  the mark-up, Chairman Patrick Leahy (D-VT), one of the original co-sponsors of S. 1692 along with Sen. Ben Cardin (D-MD) and Sen. Ted Kaufman (D-DE), negotiated a new bill  with Sen. Dianne Feinstein (D-CA), Chairman of the Senate Select Committee on Intelligence. The substitute bill, which is also co-sponsored by Senators Ben Cardin (D-MD), Ted Kaufman (D-DE), Sheldon Whitehouse (D-RI) and Amy Klobucher (D-MN) weakens  several provisions of the original bill, including certain protections for civil liberties. It also drops the higher Section 215 standards for business records that were in the original bill, with the exception of library records.

Although we are disappointed with the weaker language, AALL is pleased that we did get the higher standard for libraries included in the negotiated bill. The Judiciary Committee will hold another mark-up next Thursday and we will keep you updated on the status of the reauthorization legislation.

[Posted by Emily Feldman]