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.


GAO Audit of OGIS is Mixed Review

October 2, 2013

By Elizabeth

A recent General Accountability Office (GAO) audit of the Office of Government Information Services (OGIS) gave mixed reviews to the agency’s success in meeting its statutory responsibilities. OGIS is charged with recommending policy changes to improve the Freedom of Information Act (FOIA) process, offering mediation services to help resolve disputes between requestors and agencies, and acting as ombudsman by responding to the needs of the diverse FOIA community.  While recognizing the constraints of OGIS’s limited budget, the GAO report concludes that OGIS’s actions are not as robust as they should be to effectively comply with the law and points to the failure of OGIS to create a plan for conducting comprehensive reviews of federal agencies’ FOIA policies or compliance.

Since its establishment in 2009, OGIS has provided comments on proposed FOIA regulations for 18 of 99 federal agencies that administer FOIA, as well as a number of Privacy Act system of records notices, according to the GAO report. While OGIS has suggested improvements to a number of those regulations and notices, GAO finds it has “not performed the reviews of regulations and notices in a proactive, comprehensive manner, and has not conducted any reviews of agencies’ compliance with the law.” OGIS is in the early stages of developing a methodology for conducting such reviews and GAO recommends that they agency set a time frame for completing this work and under which to begin carrying out proactive evaluations of agency compliance. The report also calls for the creation of performance measures for its mediation services.

In a blog post last week, director of OGIS Miriam Nisbet responded to some the criticism leveled in the GAO report.  Ms. Nisbet points to the “lessons learned” in the last four years of OGIS’s work, highlighting that above all “It is challenging to define ‘success’ in providing mediation services.” Given OGIS’s broad mandate and the great demand for OGIS’s services, the constraints of a small staff, limited budget, and large caseload present challenges.  Further, it is not obvious that Congress necessarily intended for OGIS to conduct comprehensive reviews, as GAO assumes, or that such an approach is necessary for OGIS to exercise effective oversight.

OGIS is working on an action plan to respond to the challenges identified in the GAO report and will share it with the public in the coming weeks. AALL has been supportive of OGIS and its important work in mediating FOIA disputes and offering training to agencies, and we commend the agency’s leadership in developing a uniform, centralized location to make and manage information requests. We hope to see continued Congressional support for OGIS. By promoting the availability and importance of OGIS’s mediation work, the government can avoid the animosity and costs associated with litigation and better facilitate the legal right of access to government information under FOIA.


OpenTheGovernment’s 2012 Secrecy Report

September 14, 2012

By Elizabeth

Earlier this week, OpenTheGovernment.org released the latest edition of their annual Secrecy Report. This year’s report reveals mixed marks for the Obama administration’s open government policies, highlighting both positive developments and room for improvement.

Several signs of progress of are of note. For example, the government processed more Freedom of Information Act (FOIA) requests in 2011 than the previous year and brought the average cost of fulfilling a FOIA request down by more than $2. So far in his term, President Obama has not once cited executive privilege to deny Congressional requests for information, and the administration has also declassified previously secret defense information, some of which has not been declassified since the end of the Cold War.

However, there are still causes of concern around the administration’s level of secrecy, especially in light of the President’s bold promise of “unprecedented transparency.”  FOIA requests, the report noted, rose 5 percent from fiscal 2010 to 2011, and agencies processed 644,165, or 8 percent, more than the previous year— yet the backlog grew by 20 percent, reaching 83,490. It’s likely that the National Declassification Center will not meet its goal for declassifying old records on time. And while the volume of documents marked “Classified” continues to grow, there has been little assurance or reason offered for the decision that the information properly needs such protection.

The 2012 Secrecy Report includes a look at the limitations of the data the government currently makes available.  From the press release from OpenTheGovernment.org:

Missing and misleading data have a very real effect on the public’s ability to trust that the government is using taxpayer monies wisely, and that it is following its own policies. “Good information is essential for the public to know what interests are influencing government policies, and more,” said [Dr. Patrice McDermott, Executive Director of OpenTheGovernment.org]. “Partial and mis- information, however, erodes accountability and prevents the public from having an informed debate about critical national issues.”

AALL is a founding member of OpenTheGovernment.org, a coalition of 80+ groups advocating for open and accountable government. We’ll be joining a live Twitter chat with the report’s contributors on Tuesday, September 18th from 4–5 p.m. EDT. Follow us at @AALL_GRO and join the conversation with #secrecy12.


OMB Watch Assesses Administration’s Progress on Transparency Recommendations

March 24, 2011

During last Friday’s Sunshine Week Webcast at the Center for American Progress (archived here), Gary Bass, Executive Director of OMB Watch, announced the release of a new report, “Assessing Progress: Toward a 21st Century Right to Know.” The report analyzes the Obama Administration’s progress in meeting the more than 70 transparency recommendations issued by the 21st Century Right-to-Know Project in November 2008. More than 100 groups and individuals contributed or signed on to the Right-to-Know recommendations – including AALL, a dozen of our chapters and more than 75 individual law librarians around the country.

OMB Watch found that the Administration has made progress on several high priority recommendations (promoting a culture of government openness; issuing new guidance on the Freedom of Information Act), but little progress in other areas (improving the use and consistency of metadata; addressing records management). In particular, AALL is very concerned about the lack of leadership from the White House on electronic records management and preservation. As OMB Watch states:

Records management is the sine qua non of open and accountable government: If records are not adequately retained, managed, and preserved, they will be inaccessible to the public, whether through FOIA, discovery in legal claims, declassification, internal audits, or any other transparency or accountability mechanism.

As we have done since President Obama took office in January 2009, AALL will continue to to track the Administration’s progress on openness. We will keep you updated on any significant developments.


GAO Report Finds EPA Lacks Strategic Plan for its Library Network

November 12, 2010

AALL strongly opposed the closure of five of the Environmental Protection Agency’s (EPA) libraries as soon as we learned of the agency’s troubling plans to reorganize its library network in spring 2006. We immediately met with EPA’s Chief Information Officer and other agency staff to  get more information on why this short-sighted decision was made. We also expressed our concerns about the loss of public access to EPA resources to members of Congress.

In February 2007, American Library Association (ALA) President Leslie Burger testified before the Senate Committee on Environment and Public Works on behalf of ALA, AALL and the Association of Research Libraries to emphasize the importance of EPA’s libraries to our members and the public. In March 2008, ALA President Jim Rettig testified before the House Committee on Science and Technology Subcommittee on Investigations and Oversight on behalf of ALA and AALL to express concerns about EPA’s digitization plans and ask that Congress urge EPA to base its actions on user needs.

After many calls and letters to Capitol Hill from AALL members, our chapters, and others concerned about the closures, we were very pleased when Congress provided EPA with a $1 million order, included in the FY 2008 appropriations omnibus bill (P.L.110-161), to reopen the libraries. Three regional libraries in Chicago, Dallas, and Kansas City and a combined EPA Headquarters and Chemical Libraries reopened their doors to the public in September 2008.

Members of Congress asked the Government Accountability Office (GAO) to conduct a series of reports to monitor  the status of EPA’s library reorganization plans. The latest recently released report identifies three major failings and offers a number of important recommendations.

GAO found that EPA:

  • Has not yet completed the strategic plan for its library network, despite having consulted with AALL and other library organizations more than two years ago to get our feedback on a draft outline of the plan.
  • Has not taken a complete inventory of its library holdings and thus has been unable to determine which documents need to be digitized, and the costs and time involved.
  • Has used a flawed survey design to assess the information needs of its staff, producing unreliable results.

As a result of these shortcomings, GAO recommends that EPA:

  • Complete its strategic plan, including implementation goals and a timeline.
  • Conduct an inventory of the library network’s holdings to identify what items need to be digitized.
  • Ensure that future surveys of library staff and user needs are methodologically sound.

We are disappointed that EPA has not taken proper steps during the last two years to complete an overall strategy for its library network, or to develop a blueprint for digitizing its collections. We are also troubled that EPA has failed to continue a dialog with the library community since we were engaged in those first discussions with agency officials.

In response to the report, EPA has agreed to finish its strategic plan and complete cataloging its library holdings by the end of this fiscal year, September 30, 2011. AALL will continue to closely monitor EPA’s progress in responding to GAO’s important recommendations.

[Posted by Emily Feldman]


CREW Finds FOIA Implementation Problems Continue

October 22, 2010

A new report by Citizens for Responsibility and Ethics in Washington (CREW), FOIA at the Mid-term: Obstacles to Transparency Remain, reveals that though there has been some progress since President Obama released his Memorandum on the Freedom of Information Act and Attorney General Holder followed up with guidance for agencies, there has not been a major shift in the FOIA culture across the Federal government. CREW surveyed hundreds of FOIA professionals and found that a lack of staffing and funding are the biggest impediments to successfully implementing the FOIA.

We were very pleased when Anne Weismann, Chief Counsel for CREW, joined us in Denver for a panel discussion on “The Future of FOIA” (J1). She expressed at the time her sense that while many pieces to improve FOIA had been put in place under the Obama Administration, there’s still a long way to go to shift toward a culture of government transparency. This report confirms her statements and emphasizes the need for the Administration to continue to take steps to support government agencies in order to improve FOIA processes.

[Posted by Emily Feldman]


New Report Finds Agency Progress on Rulemaking; Problems with Process Remain

September 22, 2010

A report released this week by 2008 AALL Public Access to Government Information (PAGI) award winner OMB Watch examines the Obama Administration’s approach to rulemaking. OMB Watch finds that the new Administration’s rulemaking record shows a marked philosophical change from the Bush era’s tendency toward deregulation, and most agencies have made significant strides to better protect the public. However, OMB Watch concludes that the Administration has not done enough to reform the rulemaking process, relying instead on the Clinton-era Executive Order 12866 on regulatory planning and review.

This is the first report in a series of three. The final report will focus exclusively on the regulatory process, including issues of transparency, participation, regulatory analysis, and scientific integrity. We will let you know when that report is released.

[Posted by Emily Feldman]


2010 Secrecy Report Card Indicates Trend toward Greater Openness

September 7, 2010

OpenTheGovernment.org released its seventh annual Secrecy Report Card today, showing that secrecy across a wide array of measures has continued to decrease since President Obama took office in January 2009. For example, FOIA backlogs were reduced by 40 percent government-wide in Fiscal Year (FY) 2009, and the number of “original classification decisions” – the source of newly classified information – decreased almost 10 percent.

Despite these positive findings, one troubling trend stands out: there is a growing backlog of declassified records in the Federal government. This year’s report found the declassification rate government-wide fell from 61 percent of all material reviewed in 2008 to 55 percent in 2009.

It is important to note, however, that because the Secrecy Report Card is limited to FY2009 data, it does not reflect the recent efforts of the new Administration to target this backlog. Specifically, President Obama’s December 2009 Executive Order on Classified National Security Information established the vital National Declassification Center at NARA. AALL applauded the creation of this new center, which will help improve access to government information by making public by the December 31, 2013 deadline more than 400 million pages of classified records. According to the NDC’s first report, 8 million pages of material have already been processed and made available to the public since the NDC opened its doors January 2009.

AALL is a founding partner of OpenTheGovernment.org and Director of Government Relations Mary Alice Baish serves on its Steering Committee. AALL is committed to working with OTG to promote transparency at all levels of government.

[Posted by Emily Feldman]


AALL Participates in Audit of Revised Open Government Plans, Revealing Significant Improvements

July 21, 2010

AALL contributed to a second audit organized by OpenTheGovernment.org to rank executive agencies’ Open Government Plans, which were initially released on April 7 as required by the Obama Administration’s Open Government Directive (OGD). Agencies were given the opportunity to revise their plans by June 25, and 23 of the 39 agencies evaluated during the audit released revised plans by the June deadline.

Using the same criteria employed in the first round, the auditors rated the extent to which agencies’ revised plans met the OGD’s requirements and provided bonus points for exceeding the requirements.

The audit found that most agencies made significant steps to improve their plans. The Department of Health and Human Services, the Department of Transportation and the Environmental Protection Agency met all of the OGD requirements, and earned bonus points.

The Department of Justice moved from the lowest ranking to a respectable spot at number 8. DOJ responded positively to feedback and made important steps to include required links and identify high value data sets. Significantly, DOJ has promised to make publicly available its collection of digital legislative histories and to provide access to significant court filings through its Web site.

The auditors are now developing metrics to evaluate how agencies implement their Open Government Plans. AALL and the other auditors will continue to work closely with agencies to ensure that they follow through on their promises to create a more open government.

[Posted by Emily Feldman]


AALL Contributes to Audit Revealing Wide Variation in Agency Plans to Make Government More Open: NASA, HUD, EPA Produce Strong Plans, DOJ Plan Disappoints

May 3, 2010

AALL contributed to an audit organized by OpenTheGovernment.org to rank executive agencies’ Open Government Plans, which were released on April 7 as required by the Obama administration’s Open Government Directive (OGD). The evaluations rate the extent to which agencies met the OGD’s requirements and provide bonus points for exceeding the requirements.

While all of the agencies required to produce a plan completed them within the four month deadline, the audit found wide variation in the plans. The National Aeronautics and Space Administration, Department of Housing and Urban Development, and Environmental Protection Agency produced the strongest plans by going beyond all the OGD requirements, while the Department of Treasury, Department of Defense, Office of Management and Budget (OMB), Department of Energy, and the Department of Justice produced the weakest.

Agencies will be asked to revise their plans by the end of May. OpenTheGovernment.org and AALL will revisit those plans in early June to see how agencies have responded to this audit.

Please see our Press Release for more information.

[Posted by Emily Feldman]


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