Senate Confirms PCLOB Chair

By Elizabeth

The Senate has voted to confirm David Medine as Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), one year after he was favorably reported by the Judiciary Committee and nine months after the Senate moved to confirm four other nominees to the Board. In a statement earlier today, Judiciary Committee Chairman Patrick Leahy (D-Vt.) lamented the delay in taking up Medine’s nomination, but noted that after a year of obstruction the PCLOB “will finally be able to begin to carry out its important work on behalf of the American people.”

Created in 2004 by the Intelligence Reform and Terrorism Prevention Act(P.L. 108-458) at the recommendation of  the 9/11 Commission, the PCLOB is charged with reviewing privacy and civil liberties issues impacted by the government‘s national security policies and programs. But hampered by politicking, the board made little progress in the first several years of its existence. AALL has repeatedly expressed concern that without nominated and confirmed members, the PCLOB could not perform its critical mission to ensure post-9/11 intelligence collection efforts  do not improperly infringe on Americans’ rights. Although the Senate had confirmed the other four members of board last summer, the chair is the board’s only full-time member and only member with the authority to hire a staff.

AALL applauds the confirmation of David Medine today as a considerable step forward. We have recently joined several civil liberties organizations to urge the PCLOB’s focus on a variety of issues related to national security policies and programs, including the Foreign Intelligence Surveillance Act (FISA), classification policy, cybersecurity, state secrets privilege, National Security Letters (NSLs), and the PATRIOT Act.  The Cyber Intelligence Sharing and Protection Act (CISPA), which recently passed the House, would assign additional oversight responsibilities to the Board regarding the government’s use of data collected from private companies. It is our hope that with the confirmation of Chairman Medine, the Board will finally be able to begin to make progress on its crucial mission.

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, Government Printing Office Increase Access to Legislative Data

By Emily

The Office of the Clerk of the House of Representatives has expanded its docs.house.gov site to include committee information such as committee rules, bills and resolutions to be considered, recorded votes, meeting notices, witness lists and testimony. Visitors can subscribe to Committee RSS feeds and download the XML for reuse. In addition, the Government Printing Office (GPO) is now making bills in XML format available for bulk download through FDsys, from the 113th Congress forward. These efforts advance the transparency goals put forward in the 112th Congress by the House leadership and House Report 112-511, which established the Bulk Data Task Force.

AALL submitted feedback to the Bulk Data Task Force late last year, recommending that a disclaimer and link to FDsys be included along with any legislative information that is posted for bulk download. We urged the Clerk to follow the example set by the White House, GPO and the National Archives and Records Administration’s Office of the Federal Register in adding a disclaimer to the XML of the Federal Register on Data.gov, which clearly states that the XML is not official. We are pleased that the new Help section of docs.house.gov includes the following questions along with a “Legal Status and Authenticity” section as part of the FAQ:

Q. What is available on docs.house.gov?

A. Text of legislation that may be considered on the House Floor is posted on docs.house.gov. Committee documents in accordance with the standards adopted by the Committee on House Administration are posted on docs.house.gov.

If available, both the PDF version and XML version of a document are posted. Documents follow the House’s document naming convention. If the documents have been processed by U.S. Government Printing Office (GPO), there may be direct links to GPO’s Federal Digital System (FDSys).

 Q. What is the authenticity of data files from docs.house.gov after they have been downloaded to another site?

A. We cannot vouch for the authenticity of data that is not under the control of the U.S. House. The U.S. House does not endorse third party applications, and does not evaluate how our original content is displayed on other sites. Consumers should form their own conclusions as to whether the downloaded data can be relied upon within an application or its enriched results that were not necessarily the original reason for producing the raw source data.

AALL supports access in many formats. We commend the Office of the Clerk for clarifying the authenticity of the XML files and for recommending that committees link to FDsys where possible. We also applaud GPO for making XML files available on FDsys through the Bulk Data Repository, along with the authenticated PDFs. This affirms GPO’s status as a trusted repository of official, authentic, digital and secure information and allows other entities to add value to government information.

NDC Completes Analysis of 361 Million Page Backlog

By Elizabeth

In its sixth bi-annual report on the status of the National Declassification Center (NDC), the National Records and Archives Administration (NARA) announced that the NDC has completed its assessment analysis of 361 million pages of classified documents in its backlog. NARA reports all backlog series are “in the proper queue” for the final quality review and processing stages, while many have completed all processes.

Established by Executive Order in late 2009, the NDC has the vital task of preparing the revised backlog for public release by December 31, 2013. To date, the assessment process has resulted in the release or reclassification of 90 million historical pages. NDC Director Sheryl Shenberger cited a voluntary commitment by her staff to work extra hours as the reason for meeting the milestone.

In its 2012 Secrecy Report, the OpentheGovernment.org raised questions about the likelihood the NDC would meet its goal for declassifying its records on time—a point of contention with Shenberger last July at the AALL Annual Meeting program, “The National Declassification Center – Will It Meet Our Expectations”. The NDC’s main challenge is the onerous requirements of the Kyl-Lott amendment, which requires a certification that the collection is “highly unlikely” to contain nuclear weapons information. Nearly 100 million backlog pages still require some version of page-level review, a “highly unlikely” certification, or additional documentation as to their Kyl-Lott review status. These stringent requirements could prevent the NDC from meeting its goal.

AALL commends the NDC on its progress thus far. With many of these records of great interest to legal researchers, we encourage the NDC’s goal to continue declassification of historical documents in a timelier manner by tracking all records from accessioning to their final availability.

Lieberman Archives Committee Emails, Solidifies Legacy in Open Government

By Elizabeth

In a fitting end to his legacy as a strong proponent of transparency and open government, former Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (ID-Conn.) announced earlier this month that he will include all of his Committee emails in the records sent to the National Archives and Records Administration (NARA). The newly retired Senator is the first chairman to archive his committee emails.

Lieberman chaired the Homeland Security and Governmental Affairs Committee from January 2007 to January 2013, having also served as chairman of its predecessor, the Government Affairs Committee, when Democrats held the majority from June 2001 to January 2003.

In addition to the committee records held by NARA, Lieberman’s personal papers will be deposited at the Library of Congress, including approximately 1,500 boxes of Lieberman’s personal and professional papers, personal and staff emails, and other electronic files. The archive will span his service as a Connecticut State Senator (1970-1981), Attorney General for Connecticut (1983-1989), four-term U.S. Senator (1989-2013), and as the Democratic nominee for Vice President in 2000.

Over the course of his tenure as committee chairman, Senator Lieberman demonstrated a strong commitment to increased access to government information. AALL worked closely with Lieberman’s staff on the E-Government Act of 2002 (P.L. 107-347), which added language to increase public access to court records in the Public Access to Courts Electronic Records (PACER) system and protect the privacy of individuals’ personal information contained in those records. In his annual letter to Senate Appropriators detailing the funding needed for government management, Lieberman raised concerns that not enough efforts have been made to provide no-fee access to PACER. Over several congresses, Lieberman also worked to introduce important legislation to provide the public with access to Congressional Research Service (CRS) publications online and open access to the results of federally funding research.

The Advisory Committee on the Records of Congress continues to work actively to promote a more complete documentation of the legislative process. We encourage other committee chairs to follow the lead of Senator Lieberman and his commitment to government transparency and increased access to government information.

Assessing Transparency in the Obama Administration

By Elizabeth

As a candidate and first term president, Barack Obama promised to make transparency one of the “touchstones of this presidency.”  He pledged to make bills available online for five days before he signed them. He committed to protecting the openness of the Internet by supporting net neutrality. He assured that he would go over earmarks line by line to make sure money was spent wisely and called for reform.  On his first day in office, the President clearly signaled that open government would be a hallmark of his presidency, issuing a Memorandum on Transparency and Open Government and a Memorandum on the Freedom of Information Act, which ordered federal officials to “usher in a new era of open government” and “act promptly” to make information public.

Despite progress in some areas, the Obama Administration has demonstrated that ensuring transparency requires a significant investment of energy and resources and the ability to shift a government culture that often heavily relies on secrecy.   While significant progress has been made to improve FOIA administration, strengthen protections for whistleblowers and modernize records management, there is a long way to go before this administration can be made the gold standard of government openness.

On Monday, the Advisory Committee on Transparency (ACT)* hosted a public event on Capitol Hill to examine the efforts of the Obama Administration, titled “Transparency and the Obama Presidency: Looking Back and Looking Forward”. Four panelists were invited to rate the president on the culture of openness and transparency in his White House, including Anne Weismann, Chief Counsel at Citizens for Responsibility and Ethics in Washington (CREW); Hudson Hollister, Executive Director for the Data Transparency Coalition; Josh Gerstein, White House Reporter at POLITICO; and Daniel Schuman, Policy Counsel at the Sunlight Foundation and Director of ACT, who moderated the panel. Together they painted a murky picture of progress tinged by disappointment.

Panelists pointed to a few well intended yet poorly executed attempts at greater transparency, including the ban on hiring individuals from agencies that they have lobbied within the past two years. As Weismann pointed out, often the individuals who are most committed to improving agency operations like public interest lobbyists are precluded, while individuals who are not registered lobbyists but are indeed paid for the work can easily access the revolving door. Another point of contention was access to government data. While more data is being published in a usable format, often the most important and useful data is not. Panelists also lamented the 2010 departure of Norm Eisen, known as the White House “ethics czar,” who had the ear of the president and displayed an unfailing commitment to improving open government policies. Gerstein described a “feedback loop” under Eisen in which the White House could easily be reached with complaints about what wasn’t working, but said the loop had since stalled or broken.

One strong beacon of hope exists in the National Archives and Records Administration (NARA), in large part thanks to important steps taken by Archivist David Ferriero to address the key issues in electronic records management. In November 2011, President Obama tasked NARA with creating a new Records Management Directive to establish a robust 21st century framework for managing Federal records, calling proper records management “ the backbone of open Government.” Released on August 24, the new Directive is an important step forward to ensure preservation and permanent public access to federal agency records in electronic formats.  The Directive requires agencies to transition to electronic recordkeeping “to ensure transparency, efficiency and accountability,” a goal which promotes the open government commitments in President Obama’s Open Government Directive. Agencies are required to move to electronic recordkeeping of all permanent electronic records by 2019 and transition to electronic recordkeeping of email by 2016. In addition, the Archivist convened the first meeting of Senior Agency Officials last week to focus on role they play in supporting individual records management programs in Federal agencies.

Despite a bumpy road and a loss of momentum with this Administration, there is little comparison between this president and his predecessor. While the Bush White House was marked by a shroud of extreme secrecy, President Obama has made significant strides to be more transparent. Still, there is more that the White House could be doing. AALL looks forward to continuing to work with the administration to meet the president’s first-term commitment to “creating an unprecedented level of openness in Government.”

*Disclosure: AALL’s Director of Government Relations Emily Feltren serves on the Committee