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.

Agency Operations and Expanded Public Access: What’s in the FY 2014 Omnibus?

January 22, 2014

By Elizabeth Holland

On Friday night President Obama signed the $1.1 trillion omnibus FY 2014 appropriations bill (H.R. 3547) into law. The comprehensive spending plan designates funding for every government agency and, with a 72-26 vote in the Senate and 359-67 margin in the House, passed both chambers of Congress easily.

Those agencies whose services are integral to providing access to government information managed fairly well in the budget deal. The Government Printing Office (GPO) maintained their 2013 funding level of $119 million. The Library of Congress is provided with $579 million, a decrease of $8 million below the Fiscal Year 2013 enacted level.  The Electronic Government Fund received a boost in funding from recent years to $16 million. The Fund will also retain its budgetary independence, despite the House Appropriations Committee’s proposal to merge it with another fund and cut their combined funding.

In a victory for open access advocates, the omnibus bill also included language that requires federal agencies under the Departments of Labor, Health and Human Services, and Education with research budgets of $100 million or more to provide the public with online access to articles resulting from federally funded research within 12 months of publication in a peer-reviewed journal. The agencies covered would ensure that more than $31 billion of the total $60 billion annual U.S. investment in taxpayer-funded research is now openly accessible.

The language in the omnibus affirms the strong precedent set by the 2009 National Institutes of Health’s Public Access Policy and 2013 White House Office of Science and Technology Policy Directive on Public Access.

AALL continues to support the Fair Access to Science and Technology Research Act (FASTR) (S. 350, H.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. Using our Legislative Action Center, you can contact your members of Congress today to ask them to support FASTR.

Following a series of short-term spending deals, sequestration cuts, and the September government shutdown, AALL was pleased to see the omnibus package address funding through Fiscal Year 2014. This budget agreement is an important step toward bipartisanship and provides greater certainty in agency operations. The uninterrupted operations of agencies like GPO and LC are essential to informing the American public about their government and promoting a healthy democracy.

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.

Some Successes, Room for Improvement on E-Gov

September 20, 2012

By Elizabeth

Ten years after the passage of the E-Government Act of 2002 (P.L. 107-347), a new GAO report finds federal agencies have yet to address key areas to improve citizen access to government information and services. While the Office of Management and Budget (OMB) and other agencies have taken significant steps to comply with the act—including releasing guidance, coordinating reporting, and assigning leadership responsibilities—further action is necessary.

As stated in the report, the E-Government Act of 2002 was “enacted to promote the use of the Internet and other technologies to improve citizen access to government information and services, improve government decision making, and enhance accountability and transparency.”  With the tenth anniversary of the act’s passage approaching, Congress asked GAO to assess OMB’s and agencies’ efforts to fulfill the act’s requirements on leadership and organizational responsibilities and evaluate agencies’ progress with the designated improvements.

GAO reports some progress, as agencies have implemented many federal products and processes to promote electronic delivery of government services and information. For example, the act required creation of the first central portal for government information, USA.gov. In addition, the act improved public access to the rule-making process through Regulations.gov (though AALL members raised concerns about the site). Agencies have also made strides in tracking customer satisfaction with federal websites and are integrating best practices for electronic government into their operations and policy guidance.  OMB and agencies have made it easier to access, use and preserve government information by organizing website content and implementing electronic records management, and have issued policies on protecting the privacy of individuals’ personal information on government websites.

Still, in order to fully support e-government and e-lifecycle management, agencies must make changes in several areas. The GAO’s chief criticism is that OMB and other agencies have not established sufficient metrics to track e-gov programs’ successes or their compliance with the law’s intent. Agencies were not required to report on all of the act’s provisions over the past decade. For instance, from Fiscal Year 2006 to Fiscal Year 2009, agencies did not have to report on how they enhanced public participation by electronic means for development and issuance of regulations. OMB has not detailed to Congress which provisions it’s not reporting nor has it given the reasons for excluding them.

Further, OMB has yet to establish a government-wide online repository for federally funded research and development projects that’s searchable by the public. Citizens can now access consolidated government information through sites such as Data.gov, which helps the public find, access, and download non-sensitive government data and tools in a variety of formats.  But while steps have been taken to improve transparency and participation through federal websites, GAO has raised concerns with the accuracy and reliability of this information.

In order to fully comply with the act, GAO recommends that in its annual report to Congress OMB identify which provisions have not been reported and why, establish a federal research and development repository and website, and issue guidance on agency participation in this site. AALL helped to formulate the language of the E-Government Act of 2002 and has been an active proponent of the increased transparency and privacy requirements the act requires. We support the recommendations of GAO to OMB and encourage OMB and all agencies to take the steps necessary to fully comply with the e-government requirements.

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.

Redesigned ODNI Website Aims for Greater Transparency

August 15, 2012

The Office of the Director of National Intelligence (ODNI) recently unveiled changes to its website that aim to increase transparency.

Created with an open source content management system, the overhauled site seeks to provide more accurate, up-to-date information to the public and bolster the office’s web presence.  Featured changes include links to all intelligence community members, video, photographs, podcasts and subscription content from throughout the intelligence community. Meanwhile, back-end updates “provide a scalable and flexible architecture to empower innovative, efficient distribution of key information while reducing the costs of future investments,” according to an ODNI news release.

While the new ODNI site does not focus on mobile technology, progress has been made by members of the intelligence community. In response to the growing use of mobile devices, the Central Intelligence Agency launched a new mobile site last week. Readers can now access mobile-friendly versions of CIA.gov materials on small screens.

The new ODNI site does focus on web 2.0 tools like Facebook, reflecting the agency’s aim to make its content available to a broader audience. The efforts of ODNI’s federal, state, industry and global partners are highlighted on the site for greater reach and transparency.

A laudable step towards increased transparency, the ODNI site redesign is not yet complete. Additional features and content will be added in the coming months, including archived congressional testimonies and other relevant news from before 2005. In all, the new site is worth a look and indicative of a trend we hope the intelligence community at large will continue.

New White House Digital Government Strategy Offers Promise, Raises Concerns

June 4, 2012

On May 23, the White House launched its new Digital Government Strategy, an initiative aimed at improving the way government agencies utilize new tools and technologies to serve the public. The plan lays out clear-cut procedures for making public information open and machine readable within one year, allowing Americans to engage with their government more easily.

In a memorandum introducing the new strategy developed by the Federal Chief Information Officer (CIO), Steven VanRoekel, President Obama directs each major federal agency to make two of their key services available on mobile devices within the next 12 months and to make “applicable” government information open and machine-readable by default. The strategy intends to “ensure that agencies use emerging technologies to serve the public as effectively as possible” and will require agencies “to adopt new standards for making applicable Government information open and machine-readable by default.” The memo calls on agencies to publicly report on their progress.

Further, the strategy promises to “transform Data.gov into a data and API (application programming interfaces) catalog that in real time pulls directly from agency websites,” as summarized in a blog post by VanRoekel. An excerpt from the report explains:

Rather than thinking primarily about the final presentation—publishing web pages, mobile applications or brochures—an information-centric approach focuses on ensuring our data and content are accurate, available, and secure. We need to treat all content as data—turning any unstructured content into structured data—then ensure all structured data are associated with valid metadata. Providing this information through web APIs helps us architect for interoperability and openness, and makes data assets freely available for use within agencies, between agencies, in the private sector, or by citizens.

The Office of Management and Budget (OMB) will formulate a government-wide policy pertaining to API and systems will be required to support access to high-value open data. The report also outlines plans to set up a Digital Services Innovation Center to be carried out by the General Services Administration through a centralized effort to help agencies build out shared solutions for a “citizen-centric” approach to the web.

The scope of this new digital government strategy is laudable. The White House has put forth an ambitious and progressive strategy that has the potential to improve government transparency and accessibility. However, there are several omissions from the report that are cause for concern. Though leaders in producing, disseminating and preserving electronic information, the Government Printing Office and the Library of Congress are never mentioned in the report, and the National Archives and Records Administration is mentioned only once. NARA is charged with working with the Federal CIO Council and National Institute of Standards and Technology to “develop guidelines for standardized implementation of digital privacy controls and educate agency privacy and legal officials on options for addressing digital privacy, records retention, and security issues.”

Most troubling, the report puts forth a strategy for access to “high-quality digital government data” but does not address the need to ensure that the information is trustworthy, accurate, preserved and permanently accessible to the public, with explicit procedures to do so.

In all, the Digital Government Strategy is an important commitment by the White House to greater government transparency and more accessible information. However, to adequately create a digital government, the White House must take into account issues of the lifecycle of electronic information before it can offer a truly comprehensive solution.

The “Minor” Comment Submittal “Glitch” at Regulations.gov

August 31, 2009

From July 26th to July 30th of this year, two software defects at Regulations.gov prevented over 100 comments directed towards 11 federal agencies to be submitted. Aside from EPA and the Centers for Medicare and Medicaid Services, Regulations.gov, itself, has not informed the public of what other agencies were affected by this “glitch.”

In addition to the software problem, the lack of transparency about this issue is very troubling. The failure to file a timely comment could have consequences in a rulemaking proceeding, and the combination of the software difficulties and the lack of openness do not inspire confidence in the system.

You can read more about the problem at http://www.nextgov.com/nextgov/ng_20090828_6883.php

[Submitted by Barbara Brandon, former AALL Government Relations Committee member]

Sen. Lieberman Requests Answers from the Judicial Conference on Compliance with Court Provisions of the E-Government Act of 2002

March 2, 2009

On January 27, 2009, Sen. Joseph Lieberman (ID-CT), Chairman of the Homeland Security and Governmental Affairs Committee, sent a letter to Judge Lee H. Rosenthal, Chair of the Judicial Conference of the United States Committee on Rules of Practice and Procedure. The letter raises important questions about how the Federal courts have complied with the transparency and privacy requirements of the E-Government Act of 2002 (P.L. 107-347).

Before beginning to even draft his 2002 bill, Sen. Lieberman and his Committee held a yearlong online survey asking the American people what they wanted to see in e-government. Improved access to information from the courts, including no-fee access to the PACER system, was a frequent response.

I was privileged to work with Sen. Lieberman’s staff at the time and AALL was a strong supporter of the 2002 Act. We were especially pleased with the following important provision on public access to PACER.

Section 205(e) of the Act changed a provision of the Judicial Appropriation Act of 2002 (28 U.S.C. 1913 note) so that courts “may, to the extent necessary” instead of “shall” charge fees “for access to information available through automatic data processing equipment.”

This important change made it possible for the Government Printing Office and the Administrative Office of the U.S. Courts to initiate a pilot project (now on temporary hold) allowing no-fee public access to PACER at 17 federal depository libraries. AALL’s Executive Board requested that the two organizations work together by endorsing the 2006 “AALL Resolution on No-Fee FDLP Access to PACER” and we applauded the beta-test.

Regarding PACER fees, Chairman Lieberman notes in his recent letter that,

“Seven years after the passage of the E-Government Act, it appears that little has been done to make these records freely available – with PACER charging a higher rate than 2002. Furthermore, the funds generated by these fees are still well higher than the cost of dissemination, as the Judiciary Information Technology Fund had a surplus of approximately $150 million in FY2006. Please explain whether the Judicial Conference is complying with Section 205(e) of the E-Government Act, how PACER fees are determined, and whether the Judicial Conference is only charging “to the extent necessary” for records using the PACER system.”

Privacy issues are also of concern to Chairman Lieberman, particularly regarding identity theft and the lack of redaction of personal data in some court records. His letter requests that the Court review its procedures to protect personal information in publicly available court records, as required by another provision of the 2002 Act. We are very pleased that Chairman Lieberman has requested a report to the Committee on both important issues.

AALL strongly supports no-fee public access to PACER as one of our top policy goals for the coming year. For more information on our position, please see page 3 of our “Statement to The Obama-Biden Transition Team: Public Policy Positions of The American Association of Law Libraries.”

The Government Relations Office has already begun to secure allies to assist our efforts toward making PACER available to the public at no cost. We are very grateful to Chairman Lieberman for his letter and request for information. We look forward to working with the Chairman and his staff on the E-Government Reauthorization Act of 2009.

We encourage our Blawg readers to forward this posting to other interested stakeholders.

[Posted by Mary Alice Baish]

Timely Article Highlights the Loss of Federal Electronic Government Information

September 15, 2008

Robert Pear of The New York Times succinctly describes the enormous challenges of preserving the vast array of federal online government information in an article published on September 13, 2008, entitled, “In Digital Age, Federal Files Blip into Oblivion.” The article captures a key concern raised by AALL in a letter to members of Congress last April about the short-sighted and disappointing decision of the National Archives and Records Administration (NARA) not to harvest agency Web sites at the end of this administration. In the front page article, Acting Washington Affairs Representative Mary Alice Baish expresses AALL’s concern that, when a new administration is sworn in next year, huge amounts of information on agency Web sites from the past eight years of the Bush administration will disappear.

AALL’s Government Relations Policy includes “Principles and Core Values Concerning Public Information on Government Web Sites” that explicitly state that information on government Web sites must be preserved and that,

Snapshots of the complete underlying database content of dynamic Web sites should be taken regularly and archived in order to have a permanent record of all additions, changes, and deletions to the underlying data.

AALL’s policy states unequivocally that it is government’s responsibility to ensure the entire life-cycle of information on their Web sites, including its accessibility, reliability, official status, comprehensives and preservation.

As we reported in the blog last month regarding NARA’s decision not to harvest agency Web sites, the Library of Congress, the California Digital Library, the University of North Texas Libraries, the Internet Archive, and the U.S. Government Printing Office in August announced a collaborative project to conduct their own harvests of government Web sites. While we are extremely pleased that these institutions have stepped in to ensure the preservation of federal online government information, we also believe that NARA is shirking its own responsibility to conduct these agency harvests.

[Posted by Emily Feldman]

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