FIRST Act is Setback for Public Access

March 13, 2014

By Elizabeth Holland

Today, the Subcommittee on Research and Technology of the Committee on Science, Space, and Technology reported H.R.4186, the Frontiers in Innovation, Research, Science and Technology (FIRST) Act. AALL strongly opposes the bill as written. Introduced this week by Lamar Smith (R-Texas) and Rep. Larry Bucshon (R-Ind.) (the chairmen of the full committee and subcommittee, respectively), the FIRST Act would impose significant barriers to the public’s ability to access the results of taxpayer-funded research.

The FIRST Act flies in the face of the White House Directive on Public Access to the Results of Federally Funded Research and seeks instead to significantly limit public access to government-sponsored scientific research in several ways: Section 303 of the bill would restrict public access to articles reporting on federally funded research for up to three years after initial publication, a length of the time that would surely slow the pace of scientific discovery.  The bill would also allow federal agencies to link to final copies of articles, rather than archive full text copies for public use and long-term accessibility. The bill further fails to support provisions that allow for shorter embargo periods to publicly funded research results.

The FIRST Act clearly aims to reverse the President’s strong mandate for expanded public access, which was recently affirmed in the FY 2014 omnibus. It is not the open access reform we need.

Tell your lawmakers you oppose the FIRST Act and urge them to instead co-sponsor FASTR, the Fair Access to Science and Technology Research Act (S. 350H.R. 708), which would strengthen the language in the omnibus bill by requiring that taxpayer funded articles be made available through a central database no later than six months after publication.


DOJ Seeks Input for Third Open Government Plan

February 18, 2014

By Elizabeth Holland

Federal agencies are currently developing their third open government plans per President Obama’s Memorandum on Transparency and Open Government and the Open Government Directive. As part of the process, the U.S. Department of Justice (DOJ) is seeking input and new ideas from the public for its plan. AALL’s Government Relations Office (GRO) and Government Relations Committee (GRC) are working together to submit recommendations to DOJ.

Previous DOJ open government plans included initiatives like creating of FOIA.gov and FARA.gov, posting its digitized legislative histories for public use, and establishing a quarterly Freedom of Information Act (FOIA) reporting requirement.  The GRO and GRC participated in past audits of the plans, organized by OpenTheGovernment.org, and have worked closely with DOJ to ensure the plans were effectively implemented.

To submit input for DOJ’s next open government plan, send your ideas to AALL Director of Government Relations Emily Feltren at efeltren@aall.org by February 24, 2014.


AALL Again Urges Reform to Incorporation by Reference System

February 6, 2014

By Elizabeth Holland

As detailed in Emily’s recent post, “Congress Considers the Scope of Copyright,” AALL has consistently urged for reform of the incorporation by reference system to allow for greater openness and transparency. Following up on our June 2012 request to the Office of Management and Budget, AALL signed on to a January 31 coalition letter to request the Office of the Federal Register (OFR) issue a final rule that goes beyond the meager changes in the Notice Of Proposed Rulemaking and requires that standards incorporated by reference in proposed rules and in final rules be available for free on the Internet.

As the letter states, AALL “strongly believes that standards incorporated by reference into federal regulations should be widely available to the public, without charge, and that such standards should be deemed in the public domain rather than subject to copyright restrictions.” Twenty groups signed on to the letter, which was sent in response to the OFR’s proposed rule  to amend regulations governing the approval of agency requests to incorporate material by reference into the Code of Federal Regulations.


Farm Bill Moves Forward Without Anti-Transparency Language

February 3, 2014

By Elizabeth Holland

We’re pleased to the report that, after pressure from powerful members of Congress and the open government community, the farm bill moved forward last week without the proposed provisions to cut off public access to information about agricultural and livestock information.  On January 29, the House approved by a vote of 251 to 166 the Agricultural Act of 2014 (H. Rept. 113-333), the Senate-House conference report to replace the Food, Conservation and Energy Act of 2008, which expired on October 1, 2013.

Language originally included in the House-passed bill would have prohibited disclosure of information about any owner, operator, or employee of an agricultural or livestock operation. The public— particularly neighbors of such operations— requires access to information about the operations to ensure their health and safety. This language would have undermined the Freedom of Information Act’s (FOIA) goal of transparency and extended personal privacy protections to corporate farms. On November 6, 2013, AALL joined more than 40 organizations in urging members of the conference committee on the Farm Bill not to include the harmful language.

AALL has joined several organizations on letters of thanks to Senator Patrick Leahy and Congressmen Elijah Cummings and Henry Waxman for their support and leadership in removing the provisions in the final version. We expect the conference report will be debated and voted upon in the Senate shortly.


White House Releases Ambitious Second National Action Plan on Open Government

December 13, 2013

By Elizabeth

Late last week, the White House released its second Open Government Partnership National Action Plan (NAP), setting forth 23 new or expanded commitments in open government for Administration to undertake in the remainder of President Obama’s term. The Open Government Partnership was established in July 2011 as a global effort to encourage transparent, effective, and accountable governance, with more than 60 member-nations today. The United States released its first Open Government National Action Plan in September 2011 and since that time, AALL has worked closely with a number of open government groups to evaluate its contents and implementation and to make recommendations for the second plan.

As we previously reported, the second NAP includes commitments to open data, increasing fiscal and corporate transparency, advancing citizen engagement, more effectively managing public resources, and modernizing the Freedom of Information Act (FOIA). Other new and notable commitments include to “transform the security classification system” based on the principle that “classification must… be kept to the minimum required to meet national security needs….” To that end, the Administration will establish a new interagency Classification Review Committee as recommended by the Public Interest Declassification Board last year. On his Secrecy News blog, Steven Aftergood offers an analysis. New declassification tools, including new document analysis and monitoring systems, could help work through a massive backlog of requests. The inclusion of surveillance issues in the second NAP is also noteworthy in light of the Administration’s position on the Snowden leaks and NSA disclosure. In the plan, the White House pledges to “increase Transparency of Foreign Intelligence Surveillance Activities” by releasing annual public reports on the government’s use of “certain national security authorities.” These reports will include the total number of orders issued during the prior twelve-month period and the number of targets affected by them. The Director of National Intelligence will also continue to review and, where appropriate, declassify information related to foreign intelligence surveillance programs, per the second NAP. Finally, the White House also pledges to consult with stakeholders and seek input from the Privacy and Civil Liberties Oversight Board to ensure an appropriate balance between the protection of privacy and national security interests.

While not revolutionary, the second National Action Plan is an important and ambitious commitment to transparent and accountable government. AALL applauds this next step and looks forward to working with the Administration and other open government advocates on the implementation of these ideals.


White House Commitments Would Expand Access to Information

November 5, 2013

By Elizabeth

During last week’s Open Government Partnership (OGP) meeting in London, the Obama administration released a preview of its U.S. Open Government National Action Plan 2.0 (NAP). While the second NAP will not be finalized until December 2013, six new commitments to further advance the goals of transparency and accountability in the federal government were announced. They include expanding open data, increasing fiscal and corporate transparency, advancing citizen engagement, more effectively managing public resources, and most significantly, modernizing the Freedom of Information Act (FOIA).

In the White House’s own words, “the FOIA encourages accountability through transparency and represents a profound national commitment to open government principles. Improving FOIA administration is one of the most effective ways to make the U.S. Government more open and accountable.”  In its new commitment, the administration pledges to implement a consolidated online FOIA portal that allows the public to submit a request to any Federal agency from a single site, develop common FOIA regulations and practices across agencies, and create an interagency working group and advisory committee to improve FOIA processing. FOIA professionals and agency staff will also receive improved FOIA trainings.

The draft OGP plan also includes a commitment to re-launch Data.gov with an expanded index of all agency data sets and special campaigns to unlock agricultural, nutrition and disaster-related data. In an effort to make government data more accessible and useful, federal agencies will also be required to develop an inventory of their data and publish a list of datasets that are public or can be made public. Under the title “Managing Government Data as a Strategic Asset”, the plan pledges that agencies will also develop new mechanisms to solicit public feedback regarding open government data.

AALL applauds the administration for their continued commitment to transparency reforms and we look forward to the release of the second National Action Plan. Access to government information is crucial to a just, democratic society and informed citizenry. AALL will continue to work with the administration and other organizations to promote policies, regulations, and guidance which encourage openness, transparency, and public participation.


Amid NSA Revelations, 2013 Secrecy Report Casts New Doubts

October 15, 2013

By Elizabeth

OpenTheGovernment.org (OTG) has released the 2013 Secrecy Report, its 9th annual review and analysis of indicators of secrecy in the federal government. With the public and lawmakers alike still reeling from the revelations about the scope of National Security Agency’s (NSA) data collection programs, this year’s report casts new doubt on the accuracy and the meaningfulness of the government’s statistics about surveillance.

In a note prefacing the report, OTG’s Executive Director Patrice McDermott writes: “Our distrust of the government’s reported numbers is focused in four areas: demands for records under Section 215 of the USA PATRIOT Act; the applications made to the Foreign Intelligence Surveillance Court (FISC) under Section 702 of the FISA Amendments Act of 2012; the failure of congressional oversight; and our new understandings of the interactions between the FISC and the intelligence community, and the expanded role of the Court.” As a result, previously included numbers on the use of National Security Letters (NSLs) and the government’s applications to the FISC are not included in this year’s report. Instead, the discussion focuses on the “misdirection in which our government has engaged” and “secret interpretations of law,” which are “as disturbing as the activities they have hidden.”

In response to the misrepresentation and obfuscation of the government intelligence collection programs, OTG outlines several recommendations for administrative action to curb secret law and restore accountability, including the release of authoritative legal interpretations of the Executive Branch, existing FISC decisions and opinions, and declassified Presidential Policy Directives – all of which AALL strongly supports.

Beyond the aforementioned surveillance programs, the 2013 Secrecy Report also considers the status of open and accountable government in other areas. With regards to the Freedom of Information Act (FOIA), this year’s assessment shows that while agencies continue to make progress in reducing their FOIA request backlog, requesters must still wait far too long to get a response. There has also been been a dramatic increase in decisions to withhold information about government deliberations. While the number of people with the authority to create new secrets continues to drop, the volume of classified material continues to grow and overwhelms the government’s declassification efforts. With the National Declassification Center poised to fail to meet its December 31 deadline, the center “has released 57 million pages to the public, a 61 percent release rate.”  Further, OTG found far too much material is marked at a classification level beyond its risk to national security.  While there have been some reductions in secrecy during the Obama administration’s tenure, the rate of change is “well below what it would take to make the government open and accountable.”

AALL is a founding member of OpenTheGovernment.org, a coalition of 80+ groups advocating for open and accountable government. We commend OTG for this year’s impressive report and we will continue to work with the coalition to promote greater transparency at the federal level.


House Oversight Hearing is Renewed Call for Records Management

September 11, 2013

By Elizabeth

Yesterday, the House Oversight and Government Reform Committee (HOGR) again turned its focus to federal records and transparency laws in a hearing titled “Preventing Violations of Federal Transparency Laws.”  Witnesses included four current and former senior administration officials who have been publicly linked to compliance problems for their use of personal or nonofficial email accounts to conduct official business. Archivist of the United States David Ferriero also testified.

The hearing raised important questions about agency compliance with the Federal Records Act and Presidential Records Act, especially in light of President Obama’s 2011 Memorandum on Managing Government Records and subsequent Managing Government Records Directive to modernize records management policies and practices in the digital age. The Directive requires agencies to transition to electronic recordkeeping “to ensure transparency, efficiency and accountability” and sets forth concrete steps and actions for agencies to take under a broad timeline. It also requires that records officers obtain additional training and establishes a formal records management occupational series to raise the profile of records managers.

The recently released 2012 agency Records Management Self-Assessments (RMSA) show some progress in meeting the Directive deadlines; while the majority of agencies still score in the Moderate to High Risk categories for compliance with statutory and regulatory records management requirements, the National Records and Archives Administration (NARA) reports that there is movement upward in scores within these categories. Agencies have increased their permanent electronic records transfer activity using NARA’s the Electronic Records Archives, and many agency records management staff now report participating in the design and development of electronic systems. More than two-thirds of agencies report taking steps to improve the integrity and usability of electronic records, including designating an agency official at the assistant secretary level to take responsibility for records management. Still, agencies’ approaches to preserving their official electronic records are inconsistent at best.

In his testimony, former White House Chief Technology Officer Andrew McLaughlin wrote, “Government recordkeeping now confronts an era in which employees have a vastly expanded, and expanding, menu of personal and social communication channels.”  With personal email addresses, social networking sites, and the ability—or necessity— to work from home on nights and weekends, agency staffs are facing new questions about proper recordkeeping in the digital age. Many of the witnesses in yesterday’s hearing pointed to a lack of training on proper recordkeeping practices and cited technological challenges for their misconduct. Ferriero recognized the “challenges we all face in managing the vast and growing numbers of email records” in his testimony and appealed for a new “culture around records” with agency compliance becoming a top priority.

HOGR has reported favorably two bills (H.R. 1233 and H.R. 1234) introduced by Ranking Member Elijah Cummings (D-Md.) to update the Federal Records Act and Presidential Records Act and promulgate regulations governing federal agency preservation of electronic messages. AALL has long been concerned about the lack of adequate records management, particularly of electronic records, and urges Congress to support these bills. We commend the Obama administration and NARA for taking proactive steps to fix a broken and oft-neglected records management system, but urge a renewed focus on full agency compliance.


Senate Confirms PCLOB Chair

May 7, 2013

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, cybersecuritystate secrets privilegeNational 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

March 19, 2013

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.


Follow

Get every new post delivered to your Inbox.

Join 192 other followers

%d bloggers like this: