Federal Advocacy: The Year in Review

December 17, 2014

By Elizabeth Holland

The 113th Congress has come to a close, marking the end of a historically unproductive and largely dysfunctional term. While political and economic factors created new advocacy challenges in 2014, AALL members rose to the occasion and helped to achieve real progress on several of the Association’s Public Policy Positions. Here’s a roundup of action on our priorities in the past year—including several lame duck developments.

GPO Gets a New Name

The recently passed “CRomnibus” spending bill for Fiscal Year 2015 (H.R. 83) included slight increases in funding for the Government Printing Office and the Library of Congress, as well as one particularly noteworthy policy change: it re-names the Government Printing Office as the Government Publishing Office. Throughout the year, AALL members worked in support of the Government Publishing Office Act of 2014 (S. 1947) to provide GPO with a name that more accurately reflects the agency’s role as the “official, digital, secure” source of federal government information in the digital age. S. 1947 was reported by the Senate Committee on Rules and Administration but never received floor time. Instead, the bill text— which also changes the titles of the public printer and deputy public printer to “director” and “deputy director” and replaces gender-specific terms with gender-neutral ones— was rolled into the spending bill and passed into law.

FOIA Reform Phased Out

Though both the House and Senate cleared their respective bills to improve the Freedom of Information Act (FOIA) in 2014, the FOIA Improvement Act (S. 2520) will not become law this year. After clearing a challenge from outgoing Senator Jay Rockefeller (D-W.V.), the Senate bill moved to the House last Monday. Despite what appeared to be solid approval in the House, leaders in that chamber failed to put the measure on the calendar before their members adjourned for the year. The bill would have established a “presumption of openness” with government information, codifying President Obama’s 2009 directive to federal agencies. Congress is likely to revisit the issue next year.

Updates to Presidential and Federal Records Acts Enacted

This year, President Barack Obama signed into law H.R. 1233, the Presidential and Federal Records Act Amendments of 2014. This set of amendments is the first statutory change to the Federal Records Act since it was passed in 1950 and implements the important modernization of the definition of a federal record to include electronic records. It also makes several updates to the Presidential Records Act to improve access. Among several key provisions, the new law codifies the procedures by which former and incumbent presidents review presidential records for constitutional privileges and establishes a reasonable standard for release of records.

Elimination of Indexes Avoided

When the House passed the Federal Register Modernization Act (H.R. 4195) in July, AALL advocates stepped up their advocacy efforts to defend the statutory requirement to print the Federal Register and Code of Federal Regulations and produce indexes for these resources, which would have been eliminated by the bill. Sharing anecdotes about the usefulness of these texts and their indexes in print helped the Government Relations Office to engage with Senate staff about our concerns. The bill died in the Senate.

Privacy Safeguards on Back Burner

Efforts to update the Electronic Communications Privacy Act (ECPA) and reform the National Security Agency’s domestic surveillance practices were both stalled in 2014 amid contentious party divisions. The Senate blocked consideration of the USA FREEDOM Act  (S. 2685) in December, despite support from the White House, Director of National Intelligence, Senators from both parties, tech companies, and a wide coalition of organizations for the bill to curb domestic surveillance practices. Critics of the legislation said they preferred to use the June 2015 reauthorization of the USA PATRIOT Act to enact reforms. A similarly popular bill, the Email Privacy Act (H.R. 1852) to update ECPA, gained 272 co-sponsors this year but was never awarded floor time because one federal agency, the Securities and Exchange Commission, worked to keep the bill from coming to fruition. While AALL is disappointed that both efforts fizzled out, we look forward to the renewed opportunity to advance important privacy protections for individuals and library patrons in the new Congress.

AALL Comments on PIDB Priorities for Declassification

January 30, 2014

By Elizabeth Holland

From November to mid-January, the Public Interest Declassification Board (PIDB) solicited public input on its Transforming Classification blog about what the government should prioritize for declassification. The Board is now working to compile the responses and comments it received and will report back to the public its conclusions and suggested next steps to assist the President in his goal of transforming the security classification system.

Together with the AALL Government Relations Committee, we submitted the following statement to the PIDB:

The American Association of Law Libraries (AALL) supports the Privacy and Civil Liberties Oversight Board recommendation to make available opinions of the Foreign Intelligence Surveillance Court. We also support the declassification of White House Office of Legal Counsel opinions.

In response to comments already received from agency declassifiers, experts, and the requester community., the PIDB also released several list of topics for declassification, including general topics of interesttopics related to the presidential libraries, topics on: formerly restricted data information, and both topics older than 25 years and topics 25 years old and younger. AALL is pleased that FISA court decisions are included on the list of topics 25 years and younger. These lists were also open to comment through the project’s mid-January end date.  PIDB says it hopes the lists “will serve as a guide to aid agencies in reviewing the information the public wants to see. “

AALL commends the PIDB on their public outreach. We were pleased to see the recent Second Open Government National Action Plan (NAP) adopt some recommendations of the PIDB to reduce classification and simplify the classification system for users, including the primary recommendation to establish a White House-led Security Classification Review Committee. We are encouraged by the White House’s commitment to undertaking the culture change necessary to combat secrecy and overclassification and look forward to next steps.

Mounting Case for Classification Reform Amid NSA Leaks, Congressional Pressure

August 14, 2013

By Elizabeth

In the wake of the disclosure of the National Security Agency’s (NSA) surveillance programs, the Government Accountability Office (GAO) will review the government’s classification systems, the agency recently announced in a letter to two members of Congress.

At the behest of Representatives Duncan Hunter (R-Calif.) and Martha Roby (R-Ala.), the government auditors will evaluate the perceived over classification and “classification inflation” of national security materials.  In a June 19 letter, Rep. Hunter wrote the GAO: “The recent disclosure of classified information regarding U.S. national security programs requires a thorough assessment of the current classification system.”  Rep. Roby, chairwoman of the House Armed Services Committee Subcommittee on Oversight and Investigations, endorsed Rep. Hunter’s request with a separate letter to GAO, and in a July 30 reply, GAO wrote it would “begin the work shortly.”

The issue of balance between transparency and secrecy in national security issues has been at the heart of Congressional hearings and debates for many years, but legislation to make significant changes has repeatedly stalled. Now, two senators are adding pressure to reform and improve government’s classification system. Sen. Jeanne Shaheen (D-N.H.) and Jim Risch (R-Idaho) introduced legislation (S. 1464) that would implement many of the recommendations from the Public Interest Declassification Board (PIDB) designed to promote transparency and efficiency by reducing unnecessary classification and addressing the growing backlog of records awaiting declassification. The Shaheen-Risch legislation directs government agencies to automatically declassify information identified as having short-term sensitivity and seeks to enhance the National Declassification Center, which is charged with streamlining and overseeing the declassification process. AALL has advocated for a strong National Declassification Center since it was created by President Obama’s 2009 Executive Order 13526 on Classified National Security Information.

AALL’s Government Relations Policy states that security classification should be construed to promote open government while acknowledging the need for FOIA exemptions. AALL will continue to work with members of Congress to reform the classification system to promote access while protecting certain sensitive information.

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.

NDC Completes Analysis of 361 Million Page Backlog

January 28, 2013

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.

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