U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

80–143 PDF 2013

ADDRESSING TRANSPARENCY IN THE FEDERAL 

BUREAUCRACY: MOVING TOWARD A MORE 

OPEN GOVERNMENT 

HEARING 

BEFORE THE

COMMITTEE ON OVERSIGHT 

AND GOVERNMENT REFORM 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MARCH 13, 2013 

Serial No. 113–9 

Printed for the use of the Committee on Oversight and Government Reform 

( 

Available via the World Wide Web: http://www.fdsys.gov 

http://www.house.gov/reform 

(II) 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

DARRELL E. ISSA, California, Chairman 

JOHN L. MICA, Florida 

MICHAEL R. TURNER, Ohio 

JOHN J. DUNCAN, JR., Tennessee 

PATRICK T. MCHENRY, North Carolina 

JIM JORDAN, Ohio 

JASON CHAFFETZ, Utah 

TIM WALBERG, Michigan 

JAMES LANKFORD, Oklahoma 

JUSTIN AMASH, Michigan 

PAUL A. GOSAR, Arizona 

PATRICK MEEHAN, Pennsylvania 

SCOTT DESJARLAIS, Tennessee 

TREY GOWDY, South Carolina 

BLAKE FARENTHOLD, Texas 

DOC HASTINGS, Washington 

CYNTHIA M. LUMMIS, Wyoming 

ROB WOODALL, Georgia 

THOMAS MASSIE, Kentucky 

DOUG COLLINS, Georgia 

MARK MEADOWS, North Carolina 

KERRY L. BENTIVOLIO, Michigan 

RON DESANTIS, Florida 

ELIJAH E. CUMMINGS, Maryland, Ranking 

Minority Member 

CAROLYN B. MALONEY, New York 

ELEANOR HOLMES NORTON, District of 

Columbia 

JOHN F. TIERNEY, Massachusetts 

WM. LACY CLAY, Missouri 

STEPHEN F. LYNCH, Massachusetts 

JIM COOPER, Tennessee 

GERALD E. CONNOLLY, Virginia 

JACKIE SPEIER, California 

MATTHEW A. CARTWRIGHT, Pennsylvania 

MARK POCAN, Wisconsin 

TAMMY DUCKWORTH, Illinois 

DANNY K. DAVIS, Illinois 

PETER WELCH, Vermont 

TONY CARDENAS, California 

STEVEN A. HORSFORD, Nevada 

MICHELLE LUJAN GRISHAM, New Mexico 

VACANCY 

LAWRENCE J. BRADY, Staff Director 

JOHN D. CUADERES, Deputy Staff Director 

ROBERT BORDEN, General Counsel 

LINDA A. GOOD, Chief Clerk 

DAVID RAPALLO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

Hearing held on March 13, 2013 ............................................................................ 1 

WITNESSES 

Ms. Angela Canterbury, Director of Public Policy, Project on Government 

Oversight 

Oral Statement ................................................................................................. 5 

Written Statement ............................................................................................ 8 

Mr. Jim Harper, Director of Information Policy Studies, CATO Institute 

Oral Statement ................................................................................................. 20 

Written Statement ............................................................................................ 22 

Mr. Daniel Schuman, Policy Counsel, Director of the Advisory Committee 

on Transparency, The Sunlight Foundation 

Oral Statement ................................................................................................. 70 

Written Statement ............................................................................................ 72 

Ms. Celia Viggo Wexler, Senior Washington Representative, Center for 

Science and Democracy, Union of Concerned Scientists 

Oral Statement ................................................................................................. 81 

Written Statement ............................................................................................ 83 

APPENDIX 

Delivering on Open Government: The Obama Administration’s Unfinished 

Legacy ................................................................................................................... 123 

The Honorable Elijah E. Cummings, a Member of Congress from the State 

of Maryland, Opening Statement ....................................................................... 154 

Request to Supplement Angela Canterbury’s Testimony in the March 13, 

2013 Hearing Record ........................................................................................... 156 

(1) 

ADDRESSING TRANSPARENCY IN THE FEDERAL BUREAUCRACY: MOVING TOWARD A 

MORE OPEN GOVERNMENT 

Wednesday, March 13, 2013, 

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON OVERSIGHT, AND GOVERNMENT REFORM, 

Washington, D.C. 

The committee met, pursuant to call, at 10:02 a.m., in Room 

2154, Rayburn House Office Building, Hon. Darrell E. Issa [chairman of the committee] presiding. 

Present: Representatives Issa, Mica, Turner, Duncan, McHenry, 

Walberg, Amash, DesJarlais, Gowdy, Farenthold, Woodall, Massie, 

Meadows, DeSantis, Cummings, Maloney, Clay, Connolly, Speier, 

Duckworth, and Davis. 

Staff Present: Ali Ahmad, Majority Communications Advisor; 

Alexia Ardolina, Majority Assistant Clerk; Kurt Bardella, Majority 

Senior Policy Advisor; Richard A. Beutel, Majority Senior Counsel; 

Molly Boyl, Majority Parliamentarian; Caitlin Carroll, Majority 

Deputy Press Secretary; Steve Castor, Majority Chief Counsel, Investigations; Gwen D’Luzansky, Majority Research Analyst; Adam 

P. Fromm, Majority Director of Member Services and Committee 

Operations; Linda Good, Majority Chief Clerk; Christopher Hixon, 

Majority Deputy Chief Counsel, Oversight; Mark D. Marin, Majority Director of Oversight; Tegan Millspaw, Majority Professional 

Staff Member; Laura L. Rush, Majority Deputy Chief Clerk; Scott 

Schmidt, Majority Deputy Director of Digital Strategy; Peter Warren, Majority Legislative Policy Director; Rebecca Watkins, Majority Deputy Director of Communications; Krista Boyd, Minority Deputy Director of Legislation/Counsel; Jennifer Hoffman, Minority 

Press Secretary; Carla Hultberg, Minority Chief Clerk; Elisa LaNier, Minority Deputy Clerk; Dave Rapallo, Minority Staff Director; Mark Stephenson, Minority Director of Legislation; and Cecelia 

Thomas, Minority Counsel. 

Chairman ISSA. Good morning. The committee will come to order. 

The Oversight Committee exists to secure two fundamental principles: first, Americans have a right to know that the money Washington takes from them is well spent; and, second, Americans deserve an efficient, effective Government that works for them. Our 

duty on the Oversight and Government Reform Committee is to 

protect these rights. Our solemn responsibility is to hold Government accountable to taxpayers, because taxpayers have a right to 

know what they get from their Government. It is our job to work 

tirelessly in partnership with citizen watchdogs to deliver the facts 

2 

to the American people and bring genuine reform to the Federal 

bureaucracy. 

Before I begin this hearing today, as our staffs have discussed, 

I am moving to add a majority and a minority seat to the Subcommittee on Energy Policy, Health Care and Entitlements. Dr. 

Gosar is to be added to the subcommittee on the majority side and 

I would now yield to the ranking member if he is prepared to designate a minority member. 

Mr. CUMMINGS. Mr. Chairman, by the end of the day we will do 

that. 

Chairman ISSA. Without objection, so ordered. 

I will now recognize myself for a short opening statement. 

It is partisan to say that President Obama took office guaranteeing us or assuring us of the most transparent presidency in history. But it is not partisan to say we can do better. We can do better in this day and age than we did in the previous administration. 

Together, that is our challenge. 

So four years later, am I going to be the person who says, 

hurray, we are more transparent? No, just the opposite. With the 

ranking member, our goal is to change transparency by legislation 

and by oversight. 

Today, as we discuss the Freedom of Information Act and our intent to take it to the next step, I believe that we, this committee, 

have an obligation and an opportunity to create more transparency 

not with any one administration, not with a president well intended and perhaps a cabinet, off and on, different positions, well 

intended, but as a matter of the people’s right. 

The truth is all administrations have a tendency to want to keep 

private their failures and make public their accomplishments. That 

is a natural state and it is one that we will not change here by asking for it to change. The only way that can happen is if rhetoric 

is also matched by law, if in fact law is enforced and overseen. 

The Sunlight Foundation has done extensive work on the accuracy of data posted by not just this administration, but administrations before. Their work shows that, in fact, we can do better. This 

hearing today is not about one agency or about one administration, 

but, in fact, the fact that administrations have been struggling 

with posting records accurately. 

Seventeen years after the legal requirement to do so was signed 

into law, the system is still broken and it needs immediate reform. 

The committee has worked on a bipartisan basis to improve transparency by providing greater access to information, but this isn’t 

enough. In the last Congress, we passed out of this committee and 

out of the Congress on a voice vote the DATA Act, we passed the 

Grant Act and a draft FOIA reform bill that was crafted by the 

ranking member. All of this is high on our priority in this Congress. 

The legacy of the ranking member and myself is, in fact, not 

about what we do during our time, but in fact what happens after 

we leave this office. Have we put in place systems and laws and 

an oversight practice that, for generations to come, can be meaningfully better than the generations before us? That is our goal 

here today. It is the reason that I am thrilled at this hearing and 

3 

I am looking forward to a markup in just a few days that is intended to begin that down payment on system changes. 

With that, I recognize the ranking member for his opening statement. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman, for holding this hearing today. This is Sunshine Week, when we celebrate 

the importance of transparency and openness in government. Sunshine Week is also an appropriate time to conduct oversight and 

evaluate the state of transparency in our Government. 

On his first day in office, President Obama made clear that open 

government would be a priority in his administration. The President issued a memo on transparency that formed the basis for the 

open government initiative, a comprehensive set of efforts to increase public access to government information. Also on his first 

day in office the President issued a memo on the Freedom of Information Act, reversing the Bush administration’s presumption 

against disclosure and instituting a presumption in favor of disclosure and the attorney general issued a memo informing agencies 

that the Justice Department would not defend FOIA denials in 

court unless agencies have a reasonable belief that there will be 

foreseeable harm from disclosure. 

I think it is fair to say that the President jump-started transparency efforts in the executive branch. There have been significant successes in the last four years; however, there are still areas 

in need of improvement, and we can always do better and I certainly agree with the chairman on that note. 

I ask unanimous consent to place in the record a report this 

week by the Center for Effective Government entitled Delivering on 

Open Government: The Obama Administration’s Unfinished Legacy. 

Chairman ISSA. Without objection, so ordered. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

This report finds as follows: ‘‘To secure its legacy as a champion 

of transparency, the Administration will need to do more to ensure 

that agencies actually implement the transparency policies it established, address gaps left in its policy reforms, and improve its 

records on national security related secrecy.’’ 

In addition, one of the criticisms in the report is aimed at Congress. The report finds that the ‘‘slow pace of secrecy reform within 

the executive branch has been aided and abetted by lack of robust 

oversight from Congress.’’ 

I agree that bipartisan oversight is critical to holding agencies 

accountable. That is why Chairman Issa and I recently worked together to send a letter to the Justice Department asking for information about several issues regarding FOIA implementation. In 

addition, Congress can make it easier for the American people to 

obtain access to government records. 

This week, the chairman and I are releasing a draft bill called 

the FOIA Oversight and Implementation Act. In the spirit of transparency and bipartisanship, we have made it available on the committee’s Web site and we welcome feedback before we formally introduce it. This bill would codify in law what the President has 

done administratively: it would establish a legal presumption 

under FOIA in favor of disclosure. It would also create a pilot 

4 

project to give FOIA requesters a single place to make requests and 

access records electronically. 

I appreciate the chairman’s bipartisan work on this bill and I 

hope we will take swift action to get it on its way to becoming law. 

I am also pleased to be cosponsoring a bill with Representative 

Clay. He is introducing it this week to improve transparency and 

accountability of federal advisory committees. 

I look forward to hearing from the witnesses here today about 

these proposals and any other ideas you might have for shining 

light on our government’s observations. 

With that, Mr. Chairman, I yield back. 

Chairman ISSA. I thank the gentleman. 

I now recognize the gentleman from Florida for one minute. 

Mr. MICA. Well, thank you. 

Very briefly, and I hope our subcommittee can look further at the 

lack of FOIA responsiveness from this administration, but everyone 

heard the President when he said my administration is committed 

to creating an unprecedented level of openness in government. 

Openness will strengthen our democracy and promote efficiency 

and effectiveness in government. 

Then he went on with Attorney General Holder to issue memorandums urging agencies to adopt a presumption of disclosure 

when processing FOIA requests and not to withhold any document 

simply because they may legally do so. 

Now, the facts are, in fact, our staff report shows that, only 37.5 

percent of all FOIA requests received were actually responded to. 

Another report found that 62 of 99 agencies surveyed had not updated their regulations since the President’s and attorney general’s 

edict. So those are the facts. 

Finally, not only is the public not getting information, but I 

would like to submit requests from last year, 2011, that I submitted from this committee and also from the Transportation Committee of agencies that did not respond to members of Congress. 

Chairman ISSA. Without objection, those will be placed in the 

record. 

Mr. MICA. So whether it is Fast and Furious we are still trying 

to get information on or requests for legitimate full committees of 

Congress, this Administration has been the least transparent and 

least responsive to the public and to the Congress, and I yield back. 

Chairman ISSA. I thank the gentleman. 

We now go to our distinguished panel of witnesses. 

All members will have seven days in which to submit opening 

statements. 

First up is Ms. Angela Canterbury. She is the Director of Public 

Policy at the Project on Government Oversight. Welcome. 

Mr. Jim Harper is Director of Information Policy Studies at the 

Cato Institute. 

Mr. Daniel Schuman is Policy Counsel of The Sunlight Foundation, previously mentioned in my opening statement. 

And Ms. Celia Wexler is the Senior Washington Representative 

for the Union of Concerned Scientists. 

Welcome, all. 

Pursuant to the rules of the committee, would you please rise 

and raise your right hand to take the oath? 

5 

Do you solemnly swear or affirm that the testimony you are 

about to give will be the truth, the whole truth, and nothing but 

the truth? 

[Witnesses respond in the affirmative.] 

Chairman ISSA. Please have a seat. 

Let the record reflect affirmative answers by all. 

You are all skilled Washington experts, so your entire statements 

will be placed in the record, and you know how the clocks work in 

front of you. Please stay as close to five minutes as possible to 

leave maximum opportunity for follow-up questions. 

Ms. Canterbury. 

WITNESS STATEMENTS 

STATEMENT OF ANGELA CANTERBURY 

Ms. CANTERBURY. Chairman Issa, Ranking Member Cummings, 

members of the committee, thank you for this honor and for your 

attention to government transparency and accountability. It is particularly a pleasure to be with you here again on Sunshine Week, 

though it is, unfortunately, not as sunny as we would like. 

President Barack Obama recently said this is the most transparent administration in history, and I can document how that is 

the case. Really? Well, it depends on the documentation. The President has made progress on his major commitments to openness 

and, without question, there has been more proactive disclosures 

than ever before. Last week we issued a report with partners that 

highlight several of the best examples, such as agency posting staff 

directories and calendars online Ethics.Data.gov and Recovery.gov. 

But in spite of this progress under Obama, there continues to be 

two American governments. One looks like a democracy and the 

other is a national security State where claims of national security 

usually trump openness and accountability. An illustration of this 

dichotomy is on whistleblowers. More than any other president, 

Obama has advanced protections for federal workers who blow the 

whistle on waste, fraud, and abuse. But at the same time this Administration has created a national security loophole that threatens the very reforms the President supported. 

Likewise, his recent signing statement asserts limits to unclassified disclosures to Congress. You can’t do oversight, and there 

won’t be checks and balances, if the President is allowed to keep 

secrets from Congress. The Associated Press just found that claims 

of national security for withholding information under FOIA are at 

an all-time high for this Administration. 

In addition, we have objected to attempts to plug leaks of classified information that actually threaten free speech. We have raised 

concerns repeatedly about the aggressive prosecutions of so-called 

leakers and the chilling effect on whistleblowers. There continues 

to be far too much over-classification of information, which undermines our legitimate secrets and makes them harder to keep. Then 

there are the secret legal opinions that, among other things, may 

justify the targeted killings of American citizens suspected of terrorism. 

6 

What should be of critical concern to all of us is that the national 

security state is growing. The more it grows, the more illegitimate 

secrecy threatens our basic rights and our democracy. 

In the non-national security government, perhaps the greatest 

challenge is the lack of a proper entity with authority and an interest in making agencies improve their practices. Openness is mostly 

voluntary and without any real consequences for the agencies that 

fail. Generally, the Office of Information Policy at DOJ is thought 

to be the entity responsible for FOIA, since it issues guidance and 

plays a role in compliance. 

But as you have so aptly pointed out, there is a significant disconnect between its actions and the President’s orders. We share 

your concerns about outdated FOIA regulations, backlogs, outrageous fees, the overuse and abuse of exemptions. However, in the 

end, we cannot reasonably expect OIP to lead on FOIA because it 

has an inherent conflict of interest, a conflict of mission, really. 

DOJ defends the agencies when they withhold information under 

FOIA. 

Clearly, it is time to consider a new model without such conflicts. 

Providing the FOIA ombudsmen, OGIS, with more independence 

and authority is one of several common sense next steps to improve 

FOIA in the very thoughtful legislation that Chairman Issa and 

Ranking Member Cummings have drafted. Mandating performance 

responsibilities, the creation of a chief FOIA officer’s council, and 

the long overdue updates to FOIA regulations all will improve the 

status quo. Codifying the presumption of openness will ensure 

agencies run by future presidents cannot withhold information unless harm to an interest protected by the exemption can be identified. 

The pilot for FOIA online you propose will help boost the number 

of agencies participating and increase its potential for success. 

FOIA online is envisioned as a one-stop shop so that one day there 

might be only one Web site for all FOIA requests. The extraordinary initiative of three agencies that created it deserves applause, and your bipartisan bill deserves strong support. 

In addition, there are other bills from the last Congress we support, such as the DATA Act, which would dramatically improve the 

ability of the public to discover how their taxpayer dollars are 

spent. We urge you to work with the Senate to ensure the best reforms become law. We also like the grant transparency reforms, 

and we hope you will similarly advance transparency in contracting. Taken together, we outsource $1 trillion every year. 

Additionally, we support the five sensible reforms, including the 

ranking member’s Transparency and Openness in Government Act 

from the last Congress, including the FACA reform bill that was 

mentioned. I am pleased to hear that will be reintroduced by Representative Clay. Naturally, government spending is of real concern 

in this economic environment, but we hope you will work with appropriators to ensure the proper implementation of the reforms you 

champion. OGIS needs additional resources. Also, investing in government watchdogs, such as the very effective Office of Special 

Counsel, pays dividends to taxpayers. 

I also urge you to conduct vigilant oversight of the whistleblower 

and taxpayer protections you ushered into law, and to legislate to 

7 

preserve and strengthen these, including in the intelligence and 

national security communities. It may be necessary to explicitly 

clarify that there should be no restrictions on executive branch disclosures to Congress. 

We need your leadership now to remain in the frivolous national 

security claims that are making huge swaths of our Government 

hidden and unaccountable, and I thank you very much. 

[Prepared statement of Ms. Canterbury follows:] 

8 


Insert offset folio 1 here 80143.001

Exposing Corruption, Exploring Soivtiofl$. 

Testimony of Angela Canterbury, Director of Public Policy, 

Project On Government Oversight, 

before the House Committee on Oversight and Government Reform 

on 

March 13,2013 

Chairman Issa, Ranking Member Cummings, and Members of the Committee: Thank you for 

inviting me to testify today and for your attention to the critical issues of government 

transparency and accountability. I am the Director of Public Policy at the Project On 

Government Oversight (POGO). Founded in 1981, POGO is a nonpartisan independent 

watchdog that champions good government refornls. Therefore, POGO has a keen interest in 

achieving a more effective, accountable, open, and ethical federal government. 

It is particularly a pleasure to be here again during "Sunshine Week" when we promote open 

government and celebrate "sunshine laws" such as the Freedom ofInfofll1ation Act (FOrA). 

Unfortunately, I cannot say that there has been tremendous progress on government openness 

since I last testified before you on this subject two ycars ago. The state of openness in our 

government is not simply put-it is complex and rife with contradictions. However, I will 

attempt to disentangle some of these issues for you today. 

The Most Transparent Administration in History? 

President Barack Obama recently said on a Google webcast, "This is the most transparent 

administration in history, and I can document how that is the case."l TlUe? It really depends 

upon how you measure it. That statement is tlUe if the measure is putting information online, but 

that is only part of the picture. 

On his first full day in office, President Obama called upon all federal executive departments and 

agencies to administer FOIA with a "clear presumption: In the face of doubt, openness 

prevails.,,2 The President also has advanced open government with two major government-wide 

initiatives: the Open Government Directive (OGD),3 also mandated on his frrst full day in office, 

and the Open Government Partnership (OGP),4 a multi-national initiative in which the U.S. has 

I President Barack Obama, "President Obama Participates in a Fireside Hangout on Google+" YouTube video, 

35:12, posted by "whitehouse," February 14, 2013. https:llwww.youtube.comiwatcb.!V...kp zigxMS-Y &t=35mI2s 

(Downloaded March 4, 2013) (Hereinafter President Obama Participates in Fireside Hangout) 

'Memorandum from Barack Obama, President oftbe United States, to Heads of Executive Departments and 

Agencies, regarding Freedom of Information Act, January 21,2009. bttp:!!edocket.access.gpo.gov/2009!pdfiE9-

1773.pdf(Downloaded March 3, 2013) 

3 Memorandum from Barack Obama, President oftbe United States, to Heads of Executive Departments and 

Agencies, regarding Transparency and Open Government, January 21, 2009. http://www.gpo.gov/fdsvs/pkgiFR2009-0 1-26/pdi!E9-1 777.pdf (Downloaded March 4, 2013) 

4 Open Government Partnership, "Home Page," www.opengovpartnership.org/ (Downloaded March 4, 2013) 
9 


Insert offset folio 2 here 80143.002

been deeply engaged. The current U.S. National Action Plan for the OGP commits the Obama 

Administration to a wide range of reforms from whistleblower protections to declassification to 

federal spending transparency. As required by the OGP, the Administration has consulted with 

POGO and other civil society organizations on the plan and actions to meet these commitments. 

We also have been carefully monitoring results. Our coalition of government transparency 

groups, OpenTheGovernment.org, just released an assessment of the U.S. National Action Plan 

that shows that the government met the letter of the majority of the commitments within the first 

year-technically meeting 19 out of25 with the remaining 6 in progress.s For the most part, the 

commitments were commendable first steps, and we will look for greater progress in the next 

National Action Plan. 

Without question, there has been an unprecedented amount of proactive disclosure under the 

President's leadership. Data.gov continues to expand and improve access to government 

information. The recent addition of Ethics. data. go v was especially welcome, as it brings together 

seven datasets for the public to search for undue influence, including campaign contributions, 

lobbying, travel records, and the White House visitor logs. 

POGO's Sunshine Week release with partner organizations of Highlighted Best Practices for 

Openness and Accountability provides several examples of useful and innovative practices by 

federal agencies that we hope will be replicated.6 These highlights include practices such as 

posting staff directories and calendars online; the Consumer Financial Protection Bureau's 

excellent online credit card complaints database; public comments solicited on Open 

Government Plans, as well as on the plans in response to the President's Memorandum on 

Scientific Integrity; the unprecedented tracking of federal spending available on Recovery.gov; 

extensive training at DOE on properly classifying information; online posting of performance 

and accountability reports; and FOIAOnline.regulations.gov, a one stop shop for FOIA requests, 

tracking, disclosure, and management created voluntarily by enterprising agencies-and a 

feature ofthe FOIA reform legislation we'll discuss momentarily. 

But frrst, it is important to address the fact that in spite of these achievements, secrecy has 

escalated in some areas of the government. The President recently admitted, "There are a handful 

of issues, mostly around national security, where people have legitimate questions where they're 

still concerned about whether or not we have all the information we need.,,7 We are indeed 

concerned, Mr. President. 

Two American Governments 

There seems to be two Obama Adrninistrations--two American governments, really. One looks 

like a democracy in which an open government accountable to the people is an ideal and a 

priority; and the other is a national security state, where claims of national security often trump 

5 Openthegovernment.org, Civil Society Report on Implementation of the First Us. National Action Plan, March 

2013. 

6 Project On Government Oversight with contributions from the American Association of Law Libraries, Bauman 

Foundation, Brennan Center, Center for Effective Government, OpenTheGovemment.org, Sunlight Foundation, and 

the Union of Concerned Scientists, Highlighted Best Practices for Open and Accountable Government, March 2013. 

http://www.pogo.org/our-workiresources/2013Ibest-practices-for-open-and-accountable-govemment.html 

7 President Obama Participates in Fireside Hangout 

2 
10 


Insert offset folio 3 here 80143.003

democratic principles such as the people's right to know. civil liberties, freedom of speech, and 

whistleblower protections. Of course, this is not an approach exclusive to this President. But the 

unchecked secrecy ofObama's national security state is at cross-purposes with many of his 

Administration's openness objectives, and it raises doubts about the President's commitments 

and declarations about transparency. 

One case in point is on whistleblower protections-a foundational transparency and 

accountability policy. More than any other president, Obama has advanced legislation and 

policies to protect federal workers who blow the whistle on waste, fraud, and abuse. Most 

presidents have been outright hostile and have opposed strengthening whistleblower protections. 

President Obama was the first to strongly support the Whistleblower Protection Enhancement 

Act (WPEA)-a bill championed by Chairman Issa, Ranking Member Cummings, and thenCommittee members Representatives Platts and Van Hollen. He signed it into law in November 

20 I 2-the culmination of a hard-fought 13-year campaign by POGO and our partners. President 

Obama also issued Presidential Policy Directive 19 (PPD-19), using executive action to extend 

some protections to intelligence and national security community personnel that were left out of 

the [mal version of the WPEA. 

But at the same time the Administration created a national security loophole for whistleblowers 

that undermines both the WPEA and the PPD. The Administration's appeal in Berry v. Conyers 

and Northover8 resulted in a decision that allows agencies to label job positions arbitrarily as 

"sensitive" for national security and remove employees from those positions-even if it is in 

retaliation for blowing the whistle on waste, fraud, and abuse. Additionally, the President has 

ordered the Director of National Intelligence to join rulemaking9 that we anticipate will affirm 

that loophole by substantially replacing the rights Congress enacted for civil servants and 

whistleblowers with an alternative national security system. Employees with security clearances 

and access to classified information have long had different rights. However, the employees with 

so-called sensitive national security positions do not have access to classified information and, 

until the Conyers decision, had the same rights as other civil servants. Thus, we are deeply 

concerned that the Conyers decision and the DNI rulemaking will greatly expand the boundaries 

of the national security state, dramatically increasing secrecy and decreasing oversight and 

accountability. 10 

8 John Berry, Director Office of Personnel Management v. Rhonda K. Conyers, Devon Haughton Northover and 

Merit Systems Protection Board (Fed. Cir. 2012) http://www.cafc.uscourts.gov/images/storieslopinions-ordersll1-

3207.pdf(Downloaded March 5, 2013) 

9 The White House, Office of the Press Secretary, "Presidential Memorandum-Rulemaking Concerning the 

Standards for Designating Positions in the Competitive Service as National Security Sensitive and Related Matters," 

January 25,2013. http://www.whitehouse.gov/the-press-office/2013/01/25/presidential-mernorandum-rulemakingconcerning-standards-designating-posi (Downloaded March 5, 2013) 

10 Margaret Talev, "Obama Memo on 'Sensitive' Jobs Stirs Whistle-Blower Fears," Bloomberg.com 

http://www.bloomberg.comlnewsl2013-02-27/obama-memo-on-sensitive-jobs-stirs-whistle-blower-fears.html 

(Downloaded March 4, 2013) 

3 
11 


Insert offset folio 4 here 80143.004

Additionally, I know you share our concerns about a recent signing statementl

] by the President 

that seeks to limit disclosures of unclassified information to Congress. 12 He said the new 

protections for contractor and grantee employees ·'threaten to interfere with my constitutional 

duty to supervise the executive branch:' President Bush made a similar claim, but what makes 

this signing statement more alarming is that it specifically objects to disclosures to Congress. 

What's more, President Obama isn't just trying to block classified information, but instead is 

seeking to withhold information he ambiguously refers to as "otherwise confidential." You can't 

do your jobs and there won't be checks and balances if the President is allowed to keep secrets 

from Congress. I 3 

There are a host of other examples of extreme secrecy in the name of national security that 

require your attention, but can't be adequately addressed at this hearing. But allow me to just 

mention a few more issues of critical concern. We have objected to administrative action 14 and 

proposed legislation 15 to plug leaks of classified information that threaten free speech, freedom 

of the press, civil liberties, and whistleblowers. 16 We also have raised concerns repeatedly about 

the aggressive prosecutions of so-called leakers. There have been more prosecutions for 

disclosures of allered wrongdoing under the Espionage Act under this Administration than all 

others combined. ] We believe these prosecutions have a chilling effect that silence would-be 

whistle blowers. There continues to be far too much over-classification of information, which 

undermines our legitimate secrets and makes them harder to keep. Then there are the secret legal 

opinions that among other things justify the targeted killings of American citizens suspected of 

terrorism. Constitutional law expert Lou Fisher says, "No plausible case can be made for 

withholding legal reasoning. With secret legal memos, government functions by fiat. The dominant 

force is not law but executive will over democracy and the constitutional system of checks and 

balances."] 8 

11 The White House, Office of the Press Secretary, "Statement by the the [sic] President on H.R. 4310," January 3, 

2013. http://www. whitehouse.govJthe-press-officel2013/01/03/statement-president-hr-43I 0 (Downloaded March 4, 

2013) 

12 Letter from Senators Darrell E. Issa, Clair McCaskill, Elijah E. Cummings, and Charles E. Gressley to President 

Barack Obama, regarding concerns about limiting disclosures of unclassified information to Congress, January 17, 

2013. http://pogoarchives.orgimins/dei-mccaskill-eec-grassley-to-president-wpea-ndaa-20130117 .PDF 

13 Angela Canterbury, "Obama, Bush and the imbalance of power," The Hill, January 18, 2013. 

http://thehill.colnlblogs/congress-blog!politics/278047-obama-bush-and-the-imbalance-of-power (Downloaded 

March 4,2013) 

14 Memorandum from Jacob J. Lew, Director of the Office of Management and Budget, to the Heads of Executive 

Departments and Agencies, regarding Initial Assessments of Safeguarding and Counterintelligence Postures for 

Classified National Security Information in Automated Systems, January 3,2011. 

www.whitehouse.gov/sites/defuultifiles/omb/memoranda/201Ilmll-08.pdf(Downloaded March 4, 2013) 

15 Ron Wyden-Senator for Oregon, "Wyden Places Hold on Intelligence Authorization Bill," November 14, 2012. 

http://www.wvden.senate.gov/newslpress-releaseslwvden-places-hold-on-intelligence-authorization-bill-

(Downloaded March 4,2013) 

16 Suzie Dershowitz and Angela Canterbury, "Wyden Pumps the Breaks on Anti-Leaks Legislation," The (pOGO) 

Blog, November 19, 2012. http://www.pogo,org/blog/201211 l/wvden-pumps-the-brakes-on-anti-leakslegislation.html 

17 Phil Mattingly and Hans Nichols, "Obama Pursuing Leakers Sends Warning to Whistle-Blowers," 

Bloomberg.com, October 17, 2012. http://www.bloomberg.cominews/2012-1 O-18/0bama-pursuing-leakers-sendswarning-to-whistle-blowers.html (Downloaded March 4, 2013) l' Louis Fisber, "What grounds for secrecy?" The National Law Journal: Opinion, January 21,2013. 

http://www.constitutionproiect.orgldocumentslwhat-grounds-for-secrccY! (Downloaded March 4, 2013) 

4 
12 


Insert offset folio 5 here 80143.005

Each of these encroachments deserves more scrutiny. What should be of critical concern for all 

ofus--and especially this Committee-is that the lack of transparency and accountability for the 

national security state is growing. The more it grows, the more illegitimate secrecy threatens our 

basic rights and our democracy. 

Egregious Problems at Certain Agencies 

Another serious problem we've encountered is agencies actively engaged in cover-ups to evade 

accountability. The Department of Defense (DoD) has repeatedly withheld records to hide the 

extent of the water contamination at Camp Lejeune that poisoned an estimated million Marines, 

family members, and civilians for 34 years. I 

9 The Food and Drug Administration (FDA) has 

spied on whistleblowers,20 prompting the Office of Special Counsel to issue a reminder to all 

agencies not to violate the rights of whistle blowers to make disclosures without retaliation. 21 

However, there are other instances where perhaps the reasons for the secrecy are not nefarious, 

but the results are. The Department of Agriculture and the Fish and Wildlife Service are among 

the agencies that have been called out recently for having "made it difficult for scientists to 

communicate their findings and views directly to the media and the public.,,22 FOIA requesters 

have to wait an average 926 days to receive a response to an expedited requese from the 

Department of State. POGO discovered this when we closely examined the Summary of Agency 

Chief FOIA Officer Reports for 201224 and the Summary of Annual FOIA Reports for FY 2011.25 

We also found that State and USAID have an average response rate to simple requests of more 

19 Martha Waggoner, "u.s. Senate panel hears about Camp Lejeune water," Star News Online, March 13, 2012. 

http://www.starnewsonline.com/article!20120313!ARTICLES/120319920 (Downloaded March 4,2013) 

20 Ellen Nakashima and Lisa Rein, "FDA lawyers authorized spying on agency's employees, senator says," The 

Washington Post, July 16, 2012. http://articles.washingtonpost.coml2012-07-16/politics/35489846 1 ericajefferson-fda-contractor-computer-surveillance (Downloaded March 4, 2013) 

21 Memorandum from Steven VanRoekel, Federal Chief Information Officer and Boris Bershteyn, General COlIDsel, 

to the ChiefInformation Officers and General COlIDSelS, regarding Office ofSpeciaJ Counsel Memo on Agency 

Monitoring Policies and Confidential Whi,tleblower Disclosures, JlIDe 20, 2012. 

http://www.whistleblowers.org/storage/whistleblowersfdocumentsiombandosc.monitoringmemo.pdf (Downloaded 

March 4, 2013) 

" Celia Viggo Wexler, "From 'The Daily Show' to the daily news, federal scientists often face obstacles sharing 

their knowledge," SlID shine Week, February 27, 2013. http://sunshineweek.rcfu.orglfrom-tbe-daily-show-to-thedaily-news-federal-scientists-often-face-obstacle%haring-their-knowledgel (Downloaded March 4, 2013) 

23 According to the guidelines, FOIA processing should be expedited when an individual's life or safety would be 

jeopardized or if substantial due process rights of the requester would be impaired by the failure to process a request 

immediately. Department of Justice, "When to Expedite FOIA Requests," FOIA Update Vol. IV, No.2, 1983. 

http://www.justice.gov/oip/foiaupdatesfVoIIV3/page3.htm (Downloaded March 4, 2013) 

24 Department of Justice, Summary of Agency ChiefFOIA Officer Reports for 2012 and Assessment of Agency 

Progress in Implementing the President's FOIA Memorandum and the Attorney General's FOIA Guidelines With 

OIP Guidance for Further Improvement, http://www.justice.gov/oipfdocs/sum-20 12-chief-foia-officer-rpt.pdf 

(Downloaded March 4, 2013) 

25 Office ofInformation Policy, Department of Justice, Summary of Annual FOIA Reports for Fiscal Year 2011, 

http://www.justice.gov/oiplfoiapostl/y-201 1 -annual-report-summary.pdf (Downloaded March 4, 2013) 

5 
13 


Insert offset folio 6 here 80143.006

than seven times the legal limit of20 days26 Public Citizen has filed a petition objecting to FDA 

having routinely violated the letter and spirit of (he Freedom ofInformation Act27 

But some of the worst FOIA practices and policies have been by the very agency that issues 

guidance to other agencies on FOIA: the Department of Justice (DOl). Last year, the National 

Security Archive even gave DO] its annual Rosemary Award for worst open government 

performance28 As one of the contributing factors, the group cited Justice's "'FOIA-as-usual 

mindset' that has failed to transform decades-old FOIA policies within its department, much less 

throughout the government." When it did propose updating its FOIA regulations, we were 

alarmed by the ways in which FOIA would be undermined, including its proposal to lie to 

requesters, which was fmally withdrawn after public pressure. 29 DOl's proposed modifications 

to its FOIA system of records also drew frre from Senators Leahy and Cornyn who were 

concerned about repeated references to the Office ofInformation Policy (OIP) at DO] as an 

ombudsman.3o Their 2007 law specifically designates another entity as the FOIA Ombudsmanthe Office of Government Information Systems (OGIS)--which was intended to create a neutral 

arbiter ofFOIA, something that DO] is not. 

Unlimited Loopholes to FOIA 

We continue to see overly broad exemptions to FOIA being sought by agencies--or by regulated 

entities. In addition to the nine permanent exemptions to FOIA, there are hundreds of statutory 

exemptions pursuant to FOIA's Exemption b(3), known as statutory exemptions or b(3)s.31 

POGO has long been concerned about the proliferation and the scope of these statutory 

exemptions, as well as the lack of oversight. Any exemption to FOIA must be narrowly tailored 

and must carefully balance the public'S right to know with other interests for withholding 

information. 

With the help of Ranking Member Cummings and Senator Leahy, we Were able to narrow an 

extremely broad exemption the DoD was seeking. 32 But its implementation now needs oversight, 

26 Suzie Dershowitz, "Federal Agencies Lagging on FOIA Processing-What's the Hold Up?" The (POGO) Blog, 

September 20,2012. http://www.pogo.orglblog!2012/09/20120920-federal-agencies-Iagging-on-foia.html 

27 Public Citizen, "Petition to FDA to Revoke Deletions Policy for FOIA Processing," petition, September 19,2012. 

http://www.citizen.org/documentslPetition·to-FDA-to-Revoke-Deletions-Policy-for-FOlA-Processing.pdf 

(Downloaded March 4, 2013) 

28 The National Security Archive, "Justice Department Wins Rosemary Award for Worst Open Government 

Performance in 2011." http://www.gwu.edu/-nsarchiv/news/20120214/index.htm (Downloaded March 4, 2013) 

29 Dana Liebelson, "Did Your FOIA Request Really Not Exist-Or is That Just What the DO] Told You?" The 

(POGO) Blog, November 4, 2011. http://www.pogo.orglblog/2011/11/did-vour-foia-request-really-not-exist-or-isthat-just-what-the-doj-told-you.html 

30 Patrick Leahy-United States Senator for Vermont, "Leahy, Cornyn Urge DOJ To ClarifY Department's Position 

On FOIA Ombudsman," March 26, 2012. http://www.leahy.senate.gov/presslleahy-cornvn-urge-doj-to-clarifydepartments-position-on-foia-ombudsman (Downloaded March 4, 2013) 

31 5 U.S.c. § 552(b)(3): specifically exempted from disclosure by statute (other than section 552b of this title), if 

that statute--(A) (i) requires that the matters be withheld from the public in such a manner as to leave no discretion 

on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be 

withheld; and (B) if enacted after the date of enactment of the OPEN FOlA Act of 2009, specifically cites to this 

p,aragraph... . - Letter from the Project On Government OverSIght et al. to the Senators of the 111 th Congress, regardmg support 

for Leahy's amendment to the NDAA to fix FOlA exemptions, November 17, 2011. http://www.pogo.orglour6 
14 


Insert offset folio 7 here 80143.007

as does the use of the many others on the books. Sometimes unnecessary exemptions are moving 

too fast in legislation without a referral to this Committee, and it is almost impossible to prevent 

these loopholes to FOIA and accountability from becoming law. Other times, there are powerful 

interests and claims of national security seeking to withhold information that ought to be 

disclosed. All of the proposed cybersecurity legislation from the I 12th Congress include overly 

broad or wholly unnecessary loopholes to the public's right to now,33 as does the "CISPA" bill 

recently reintroduced in the House.34 

I urge you to not only study existing statutory exemptions to FOIA, but also to find a better way 

to review proposed exemptions before they become law to ensure each is narrowly targeted to a 

specific, compelling need to withhold information from the public. Unnecessary, overly broad, or 

abused statutory exemptions already in the law should be repealed. 

Bureaucratic Foot-Dragging 

Bureaucracy often gets in the way of open govemment. Delays are by far the most common 

complaint by FOIA requesters. Many agencies routinely violate the 20-day rule for responses to 

FOIA. In a FOIA project we conducted, only 8 out of 1 00 agencies responded with the requested 

records within the deadline. 35 Many claim that responding with a letter acknowledging receipt of 

the request within 20 days fulfills the requirement. We disagree, and so do our friends at Citizens 

for Responsibility and Ethics in Washington who have brought suit against the Federal Elections 

Commission for this claim. 36 

Conflict of Mission 

But perhaps the greatest challenge for implementation of the President's directives on openness 

is that there isn't a proper entity with authority and an interest in making the agencies improve 

their FOIA practices and increase their openness. It's mostly voluntary and without any real 

consequences for agencies that faiL 

Generally, the OIP at DO] is thought of as the entity responsible for FOIA since it issues 

guidance to the agencies and plays an important role in compliance. But, as you so aptly pointed 

out in your letter last month to Melanie Pustay, Director of OIP, there is a significant disconnect 

workllettersI2011igs-foia-20111117.html; Patrick Leahy-United States Senator for Vermont, "Senate Adopts Leahy 

Amendment To Promote Transparency In Defense Auth. Bill," December 1,2011. 

http://www.leahy.senate.govipress/senate-adopts-Ieahy-amendment-to-promote-transparency-in-defense-auth-bill 

(Downloaded March 4, 2013) 

3J Letter from the Project On Govermnent Oversight et aL to the Senators of the 112lh Congress, regarding 

opposition to FOIA threats in cybersecurity bills, May 14, 2012. http://www.pogo.orglour-worklletters/2012/gs-foia20120514.html 

34 1131h U.S. Congress, "Cyber Intelligence Sharing and Protection Act" (HR 624), introduced February 13, 2013, by 

Representative Mike Rogers. 

35 Andrew Wyner, "SUNSHINE WEEK: Many Agencies Violate FOIA's 20-Day Requirement," The (pOGO) Blog, 

March 16, 2012. http://www.pogo.orgiblogl2012103/sunshine-week-many-agencies-violate-foias-20-davrequirement.html 

36 Citizens for Responsibility and Ethics in Washington (CREW), "CREW v. Federal Election Commission." 

http://www.citizensforethics.orgllawsuits/entrvicrew-v-federal-election-commission-commissioners-correspondence 

(Downloaded March 4, 2013) 

7 
15 


Insert offset folio 8 here 80143.008

between OIP's actions and the President's orders. 37 We share your concerns about "outdated 

FOIA regulations, exorbitant and possibly illegal fee assessments, FOIA backlogs, the excessive 

use and abuse of exemptions, and dispute resolution services." 38 You raised several important 

questions that must be answered. 

Naturally, OIP did not respond to the Committee's questions by the date requested. 

In the end, we can never expect OIP to properly lead on FOIA compliance and ensure that the 

presumption of openness is employed because it has an inherent conflict of interest-a conflict 

of mission, really. DOJ is charged with defending the agencies when they withhold information 

under FOIA. This responsibility of serving as the agencies' lawyers means that they do not have 

a primary interest in promulgating a presumption of openness. One need look no further than 

DOl's own proposed rulemaking on FOIA to see a defensive posture that undermines the 

public's right to know. 39 Clearly it is time to consider moving away from this dysfunctional 

model and centralizing FOIA authority at an independent entity without such conflicts. 

Fixing and Modernizing FOIA 

The proposed FOIA reform legislation by Chairman Issa and Ranking Member Cummings 

envisions a more modem FOrA and provides for some commonsense next steps. 

POGO strongly supports the following reforms in this bill: 

• Codifying the "foreseeable harm standard" which says that an agency "shall not deny a 

request for records unless the agency reasonably foresees that disclosure would harm an 

interest protected by one of the exemptions." 

• Giving a boost to FOIAOnline4o by increasing the number of agencies that use this one 

stop shop for requesters. 

• Providing the Office of Govemment Information Services with more involvement in 

FOIA rulemaking and compliance to provide more balance with OIP's role. 

• Encouraging more proactive disclosures. 

• Making more ofFOIA requests, processing, responses, and policy available in electronic 

format and online. 

• Requiring agencies to review and update their FOIA regulations. 

• Clarifying the responsibilities of the ChiefFOIA Officers for improving FOIA practices 

at their agencies. 

37 Letter from House Committee on Oversight and Government Refonn Chainnan Darrell E. Issa and Ranking 

Member Elijah E. Cummings to Melanie Ann Pustay, Director Office of Infonnation Policy, regarding the federal 

government's compliance with FOIA, February 4, 2013. bttp:lloversight.house.gov/wpcontentluploads/20 13/02/2013-02-04-DEI-EEC-to-Pustay-re-FOIA.pdf (Downloaded March 4, 2013) 

38 Suzie Dershowitz, "House Oversight Committee Takes a Stand on FOIA," The (POGO) Blog, February 20,2013. 

http://www.pogo.org/blog/2013/02/20130220-house-oversight-committee-takes-stand-on-foia.html 

39 Departtnent of Justice, "Proposed Rules: Freedom ofInformation Act Regulations," Federal Register Volume 76, 

Number 54, March 21, 2011. http://www.gpo.gov/fdsys/pkglFR-2011-03-2Iihtml/2011-6473.h1m (Downloaded 

March 4,2013) 

4() FOIAonline, "Home Page." https:llfoiaonline.reguJations.gov/foiaiactionipublicihome (Downloaded March 4, 

2013) 

8 
16 


Insert offset folio 9 here 80143.009

• Creation of a Chief FOrA Officers Council to ensure interagency cooperation and public 

input in compliance and in1proved performance with FOIA. 

• Studying ways to further improve compliance with FOIA and limit the over-use and 

abuse of exemptions. 

All of these are important, commonsense next steps for fixing FOlA. The "foreseeable harm 

standard" means that agencies cannot withhold information unless harm to an interest protected 

by an exemption can be identified. Putting this into statute will prevent future presidents from 

abandoning the need to make this justification for withholding, and will increase disclosures 

under FOlA. Mandating performance responsibilities for the Chief FOIA Officers, creation ofa 

Chief FOlA Officers Council, and updates to FOlA regulations will go a long way to bringing 

agencies in compliance with FOIA. 

Modernizing FOlA also means mandating a migration away from last century's approach 

towards one that harnesses today's technology to make it simple for the public to access its own 

infommtion held by the government. 

1 called out a few agencies as problem children earlier, but it is also extremely important to credit 

the extraordinary initiative and voluntary investments made by the three agencies that created 

FOlAOnline.regulations.gov: OOlS, the Department of Commerce, and the Environmental 

Protection Agency. In response to the President's OOD, these agencies created a platform for 

FOIA requesters and administrators that facilitates FOIA processing with a non-proprietary 

system that can be used by any and all agencies. Their vision is that one day it will serve as a 

portal for all FOIA requests so that requesters would no longer need to know exactly which 

agency holds the information they seek-but that would mean that all federal departments and 

agencies would have to use the system. The pilot proposed by the legislation will help boost the 

agencies participating in FOlAOnline and increase its potential for success. 

We also support taking a closer look at the persistent structural problems manifested in delays, 

backlogs, and other issues; and practices that lead to more withholding than disclosing, such as 

the use of statutory exemptions. We support your proposal for OOIS to conduct the study, but 

also support the Faster FOIA Act, proposed by Senators Leal1yand Comyn, which creates an 

independent commission to study these issues. We want OOIS to have a greater role and more 

authority, but not without increased resources. It is already struggling to fulfill its mission with 

its slashed budget. 

POGO strongly supports your efforts to improve FOlA. We look forward to helping you make 

these good reforms law. 

Other Legislation for Government Reform 

There are several other bills to increase government transparency and accountability that this 

Committee advanced in the last Congress, and in some cases were passed by the House but not 

enacted. We supported both the House and Senate versions of the Digital Accountability and 

9 
17 


Insert offset folio 10 here 80143.010

Transparency or DATA Act,41 both of which would dramatically improve the ability of the 

public to discover how their taxpayer dollars are spent. 42 The myriad problems with the current 

system and inaccuracies of data at USAspending.gov are widely known43 We hope you will not 

only advance the DATA Act in the House, but also that you will work with the Senate to ensure 

the best reforms in both bills become law. We urge you to advance the following reforms 

mandating: 

• Unique identifiers for recipients, obligations, and federal entities that also describe 

relationships (perhaps piggybacking on the Legal Entity Identifier or LEI). 

• Date standardization government-wide on spending data, including interoperability 

and/or common data formats with tagging that allows for linkages (such as XML or 

XBRL). 

• Treasury outlay data matching with obligations currently on USAspending.gov. 

• All sub-recipient data reporting (not just first sub, but all sub-contractor and grantees 

all the way down the line). 

• Real and frequent data quality assessments. 

• Independent board that will have the necessary independence and motivation to 

ensure the DATA Act will be properly implemented, based on the Recovery 

Accountability and Transparency Board modeL 

We support more transparency and accountability in all federal spending, including in grantmaking and contract-letting, which together exceeds an estimated $1 trillion in taxpayer 

dollars. 44 The Grant Reform and New Transparency Act reported by the Committee last year was 

prornising.45 We appreciate your willingness to address some issues of concern raised by our 

colleagues at the Union of Concerned Scientists regarding protecting the identity of peer 

reviewers and intellectual property, just as we protect proprietary business information. We also 

hope that the Committee will similarly advance more transparency in contracting. For starters, 

both contracts and grants should be put online as they are in many cities and states.46 Among 

other reasons, we need more transparency about the individuals and entities receiving federal 

funds to ensure that taxpayer money is going to experienced and reliant performers. 

Another bill we also hope you will advance in this Congress is the Access to Congressionally 

Mandated Reports ActY These reforms would allow the Administration, Congress, and the 

41 112ili u.s. Congress, "DATA Act" (S. 1222), introduced June 16,2011, by Senator Mark Warner; 112th U.s. 

Congress, "DATA Act" (H.R. 2146), introduced June 13,2011, by Representative Darrell Issa. 

42 Angela Canterbury, "New DATA Act Would Make Following the Money Easier," The (pOGO) Blog, September 

28,2012. http://www.pogo.orglblogl2012/09/new-data-act-make-tracking-governrnent-spending-easier.html 

43 Sunlight Foundation, "Clear Spending," http://sunlightfoundation.com/c1earspending! (Downloaded March 5, 

2013) 

44 In Fiscal Year 2012 the government spent $516 billion on contracts and $537 billion on grants, which exceeds $1 

trillion. USAspending.gov, "Prime Award Spending Data FY 2012," 

http://usaspending.gov/index.php?g=node%2F3&fiscal yeat=2012&talrBy+Agency (Downloaded March 5, 2013) 

45 112th U.S. Congress, "GRANT Act" (H.R 3433), introduced November 16, 2011, by Representative James 

Lankford. 

46 U.S. Prig Education Fund, "Report: Through Transparency, Shaping a Government Accountable to the People," 

http://www.uspirgedfund.orglreports/uspitransparency-city-spending (Downloaded March 5, 2013) 

47 112'h U.S. Congress, "Access to Congressionally Mandated Reports Act" (H.R 1974), introduced May 24, 2011, 

hy Representative Mike Quigley. 

10 
18 


Insert offset folio 11 here 80143.011

public to have easy access on a centralized website to repOlts Congress tells the agencies to 

producc. 

Additionally, there are five noncontroversial transparency reforms included in Ranking Member 

Cummings' Transparency and Openness in Government Act48 on which the Committee should 

quickly take action: 

• Electronic Message Preservation Act 

• Federal Advisory Committee Act Amendments49 

• Government Accountability Office Improvement Act50 

• Presidential Library Donation Reform Act 

• Presidential Records Act Amendments 

Lastly, we would like to urge the Committee to review our most recent report on the revolving 

door between the SEC and the industry it regulates.51 It illustrates a coziness between regulators 

and the regulated that is not exclusive to the SEC, and that causes potential conflicts of interest 

throughout government. We hope you will explore ways to increase transparency and limit the 

conflicts created by the revolving door. 

Implementation oftbe Reforms You've Championed 

Naturally, government spending is a real concern, especially as our economy continues to 

struggle. However, we hope this Committee will work with appropriators to ensure the proper 

implementation ofthe reforms you champion. The DATA Act, FOIA reforms, and whistleblower 

protections all require short-term investments to yield long-term savings to taxpayers. We 

strongly believe that investing in government watchdogs such as the Inspectors General, the 

Recovery Accountability and Transparency Board, the Government Accountability and 

Transparency Board, the Government Accountability Office, Office of Government Information 

Services, and the very effective Office of Special Counsel pays huge dividends to taxpayers. 52 

I also urge the Committee to conduct vigilant oversight of the whistleblower and taxpayer 

protections you ushered into law. As you know, the Administration has already taken actions that 

undermine these reforms. I hope you will keep a close eye on implementation, and will legislate 

as necessary to preserve strong protections for whistleblowers, including those in the intelligence 

48 112'h U.S. Congress, "Transparency and Openness in Government Act" (H.R 1144), introduced March 17, 2011, 

by Representative Elijah Cummings. 

49 112" U.S. Congress, "Federal Advisory Committee Act Amendments of 2011" (H.R 3124), introduced October 

6,2011, by Representative Lacy Clay Jr. 

50 112'h U.S. Congress, "Government Accountability Office Improvement Act of2011" (S. 237), introduced January 

31,2011, by Senator Claire McCaskill. 

51 Project On Government Oversight, Dangerous Liaisons: Revolving Door at SEC Creates Risk of Regulatory 

Capture, February 11, 2013. http://www.pogo.org/our-worklreportslsec-revolving-door.html 

" Letter from Project On Government Oversight et al. to the Chairmen and Ranking Members of the House and 

Senate Appropriations Committees and the Chairmen and Ranking Members of the House and Senate Financial 

Services and General Government Subcommittees, regarding investing in OSC pays dividends, February 26,2013. 

http://www. pogo.org! our -worklletters!20 13!POGO-and-Partners-T eJl-Congress-Investing-in-OSC-PaysDividends.htrnl 

11 
19 


Insert offset folio 12 here 80143.012

and national security communities. It may be necessary to explicitly clarify that there should be 

no restrictions on executive branch disclosures to Congress. Congress cannot fulfill its 

constitutional mandate to conduct oversight if it is kept in the dark. 

We also hope you will fight for the House's stronger provisions included in the STOCK Act 

passed last year53 The STOCK Act will shine a brighter light on potential fmancial conflicts of 

interest of Members of Congress, congressional staff, and executive branch employees. 

Unfortunately, the implementation has been slowed54 We believe that the House had the right 

idea in making all public financial disclosure forms available online, and that there shouldn't be 

another retreat from these enacted reforms. 

Conclusion 

In conclusion, when I was last here, I urged you all to work collaboratively, across party lines, on 

legislative reform and productive oversight. While it hasn't always been the case that this 

Committee has put aside partisanship, it is truly encouraging to see the tremendous good you 

have done for the country when you have. 

Though everyone can agree that we ought to have a more open and accountable government, 

there are enormous challenges and we need your leadership more than ever. In particular, we 

can't allow who Ie swaths of our government to be hidden and unaccountable just because they 

have been labeled as having something to do with national security. 

Lastly, I can't resist ending with another call for you to model openness. Congress, and 

particularly the House, is increasingly making more information available online in a timely 

fashion for the American people. We applaud this, but also think it is time for you to do what 

you have done for the executive branch: make Congress subject to FOIA and to protect members 

and staff who blow the whistle on waste, fraud, abuse, and other illegality. 

Thank you again for inviting me to testify today. I hope that the next time Sunshine Week rolls 

around there will be more progress to report. POGO and our partners pledge to continue to work 

with you to fulfill the promise of a government that is truly open and accountable to the 

American people. 

53 Suzanne Dershowitz, "President Obama Signs the STOCK Act into Law," The (pOGO) Slog, April 4, 2012. 

http://www.pogo.orglblogl2012/04/president-obama-signs-the-stock-act-into-Iaw.html 

54 Kellie Lunney, "Congress again delays STOCK ACT for senior execs," Government Executive, December 6, 

2012. httn:llwww.govexec.comJpay-benefitsJ201 211 2Iconcress-again-del ays-stock-act-senior-execsI60006i 

(Downloaded March 4, 2013) 

12 
20 

Chairman ISSA. And I thank you. 

Mr. Harper. 

STATEMENT OF JIM HARPER 

Mr. HARPER. Thank you, Chairman Issa, Mr. Cummings, members of the committee. I am very pleased to be with you about this 

issue in which I have invested a great deal of time over the last 

few years, and I am glad that you are doing so as well. 

I will start as you did, Mr. Chairman, with a note about bipartisanship. It is a pleasure to work on transparency precisely because 

it is a bipartisan issue; it is a nonideological issue. I take pains, 

whenever I am working with my liberal and progressive friends 

and with my conservative friends, to tone it down and I do my best; 

they tolerate me well, regardless of my ability to actually tone it 

down. 

Chairman ISSA. It is the one time they want a libertarian in the 

room. 

Mr. HARPER. Yes. It doesn’t happen very often, so that makes 

this a true pleasure. 

If I could characterize the work we have done at Cato, it would 

be that we are trying to bring real methodology and measurement 

to transparency issues. Of course, not all issues are subject to that 

kind of methodology, but in the data are areas we have worked to 

model what legislative process would look like as data should look 

like as data; what budgeting, appropriating, and spending would 

look like as data. And then we proceeded to grade how well that 

data is published by the Government. In terms of authority, completeness, machine discoverability, and machine readability. These 

are the things that would make the data amenable to use on the 

Internet. 

The grades are relatively poor, and in my last, most recent, report, I found that the Obama administration was somewhat lagging 

the House in terms of transparency. Obama controls a great deal 

of the Government, obviously, and has not met the outsized promises that he made as a campaigner. Meanwhile, the House has 

taken steps in the area that it controls to move transparency forward, and we see more coming, and that is exciting good news. 

One of the things that really sticks out, though, in analyzing the 

quality of data published by the Government is that data reflecting 

the structure of the executive branch is essentially not available 

data. Data, a machine readable government organization chart 

does not exist. You would think that in this day and age, in an administration that has touted transparency, we would at least have, 

in computer readable form, the basic layers: agency, bureau, program, and project. 

If we had that, so many things we could hook to it. We could figure out how appropriations bills actually affect agencies before they 

are passed and the lower organizational levels. So the lack of a machine readable government organization chart is a point that I 

think is worth emphasizing. 

We are moving forward, regardless, to mark up legislation with 

semantically rich XML, code that will make available to computers 

more accurately, more completely, what is in the bills that you 

write. So references to existing law are marked up; budget authoriVerDate Aug 31 2005 11:43 Apr 02, 2013 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 C:\DOCS\80143.TXT APRIL
21 

ties, both authorizations of appropriations and appropriations, are 

marked up. Behind me here I have some of the staff who have suffered through this project, and I certainly appreciate the work that 

they do. 

In addition, to the extent we can, we are marking up federal organizational units, the agencies and bureaus where we can. Lower 

organizational units we essentially can’t. That is why I think the 

DATA Act is so important, because it would essentially require a 

data structure for all the spending in the U.S. Government; not 

only agencies, bureaus, programs, and projects, but obligations and 

outlays. 

With this data you can tell stories, you can tell the story about 

how a budget became an appropriation, which became an obligation, which became an outlay, which resulted in something, whether it be funding for the military in some respect, whether it be 

funding for some program that aids people in their health or wellbeing. The stories that could be made available to the public are 

nearly endless given data that reflect them well. So I think the 

DATA Act is an essential way of getting that transparency that 

makes available to the public what actually happens here in Washington, D.C. 

Starting tomorrow and on Friday, we are going to be moving 

ahead, having sessions on how to get legislative data on Wikipedia. 

We are doing a Wikipedia editathon to train people up. Everybody 

is welcome tomorrow afternoon at Cato. And then on Friday we are 

going to roll our sleeves up and see if we can make legislative data 

a tool for Wikipedians. I think Wikipedia is one of the places where 

people most often go to look for information, including information 

about public policy, and we are going to try to get legislative data 

up there as quickly as possible, and we will move to other areas 

as we proceed. 

Most importantly, I think, we are having a happy hour tomorrow 

night from 5:30 to 6:30. Everyone is also welcome to that. 

Chairman ISSA. You could end on a high note, if you wanted, 

there. 

[Laughter.] 

Mr. HARPER. I will bore you with a couple more thoughts. 

When I think about transparency and how to communicate about 

transparency to the public, I think about the newspaper and the 

number of facts per square inch that appear in the newspaper. Go 

to the sports page, look at the charts, look at the data for your 

baseball scores, hockey, whatever it may be; go to the financial section. Data. Lots of data that people are able to consume. The 

weather page is data, but when you go to the national page you get 

things like Republicans are girding for battle or Obama won’t give 

in. That is essentially meaningless to ordinary people, ordinary citizens out in the land. They are able to consume data in other parts 

of the newspaper; they are able to consume data about public policy. So as soon as we can get it and give it out to them, we will 

move forward quite a bit in government transparency and a 

happier public, which is a thing that we all agree on. 

Thank you very much. 

[Prepared statement of Mr. Harper follows:] 

22 


Insert offset folio 13 here 80143.013

Testimony of Jim Harper 

Director of Information Policy Studies 

The Cato Institute 

to the 

Committee on Oversight & Government Reform 

United States House of Representatives 

at a hearing entitled 

"Addressing Transparency in the Federal Bureaucracy: 

Moving Toward A More Open Government" 

March 13,2013 

Executive Summary 

President Obama's 2008 campaign helped light a fire under the government 

transparency movement that still burns. However, the effort to produce transparent 

government has flagged. This is essentially because of poor awareness of exactly 

what practices produce transparent government. 

Confusion between "open government" and "open government data" illustrates 

this. They are often treated as interchangeable, but the first is about revealing the 

deliberations, management, and results of government, and the second is general 

availability of data that the government has produced, covering any subject matter. 

More importantly, the transparency community has failed to articulate what it 

wants. A quartet of data practices would foster government transparency: 

authoritative sourcing, availability, machine-discoverability, and machinereadability. The quality of government data publication by these measures is low. 

We are not waiting for the government to produce good data. At the Cato Institute, 

we have begun producing data ourselves, starting with legislation that we are 

marking up with enhanced, more revealing XML code. 

Our efforts are hampered by the unavailability of fundamental building blocks of 

transparency, such as unique identifiers for all the organizational units ofthe 

federal government. There is today no machine-readable organization chart for the 

federal government. 

Well-published data, such as what the DATA Act requires, would allow the 

transparency community to propagate information about the government in widely 

varying forms to a public that very much wants to understand what happens in 

Washington, D.C. 
23 


Insert offset folio 14 here 80143.014

Chairman Issa, Ranking Member Cummings, and members of the connnittee: 

Thank you for the opportunity to testify before you today. I am keenly interested in the 

subject matter of your hearing, and I hope that my testimony will shed some light on your 

oversight of federal govermncnt transparency and assist you in your deliberations on how 

to promote this widely agreed-upon goal. 

My name is Jim Harper, and I am director of information policy studies at the Cato 

Institute. Cato is a non-profit research foundation dedicated to preserving the traditional 

American principles oflimited govermnent, individuallibcrty, free markets, and peace. 

In my role there, I study the unique problems in adapting law and policy to the 

information age, issues such as privacy, intellectual property, telecommunications, 

cybersecurity, counterterrorism, and govermnent transparency. 

For more than four years, I have been researching, writing on, and promoting govermnent 

transparency at Cato. For more than a dozen years, I have labored to provide transparency 

directly through a Web site I run called WashingtonWatch.com. Other transparencyrelated work of mine includes serving on the Board of Directors of the National Priorities 

Project, serving on the Board of Advisors of the Data Transparency Coalition, and 

serving on the Advisory Committee on Transparency, a project of the Sunlight 

Foundation run by my co-panelist today Daniel Schuman. 

Washington Watch. com is still quite rudimentary and poorly trafficked compared to sites 

like Govtrack.us, OpenCongress, and many others, but collectively the community of 

private, non-profit and for-profit sites have more traffic and almost certainly provide 

more information to the public about the legislative process than the THOMAS Web site 

operated by the Library of Congress and other govermnent sites. 

There is nothing discreditable about THOMAS, of course, and we appreciate and eagerly 

anticipate the improvements forthcoming on Congress.gov. But the many actors and 

interests in the American public will be best served by looking at the federal govermnent 

through many lenses-more and different lenses than any of us can anticipate or predict. 

Thus, I recommend that you focus your transparency efforts not on Web sites or other 

projects that interpret govermnent data for the public. Rather, your task should be to 

make data about the govermnent's deliberations, management, and results available in the 

structures and formats that facilitate experimentation. There are dozens-maybe 

hundreds-ofways the public might examine the federal govermnent's manifold 

activities. 

Delivering good data to the public is no simple task, but the barriers are institutional and 

not technical. Your leadership, if well-focused, can produce genuine progress. 

I will try to illustrate how to think about transparency by sharing a short recent history of 

transparency, a few reasons why the transparency effort has flagged, the publication 

Testimony of Jim Harper, Director of Information Policy Studies, The Cata Institute 

to the House Committee on Oversight & Government Refonn 

March 12, 2013 

Page 2 ofl3 
24 


Insert offset folio 15 here 80143.015

practices that will foster transparency, our work at the Cato Institute to show the way, the 

need for a machine-readable government organization chart, and fmally the salutary 

results that the DATA Act could have for transparency. 

A Short Recent History of Federal Government Transparency 

President Obama deserves credit for lighting a fire under the government transparency 

movement in his first campaign and in the first half of his first term. To roars of approval 

in 2008, he sought the presidency making various promises that cluster around more 

open, accessible government. Within minutes of his taking office on January 20, 2009, 

the Whitehouse.gov website declared: "President Obama has cornmitted to making his 

administration the most open and transparent in history.,,1 And his first presidential 

memorandum, entitled "Transparency and Open Government," touted transparency, 

public participation, and collaboration as hallmarks of his forthcoming presidential 

administration. 2 

In retrospect, the prediction of unparalleled transparency was incautiously optimistic. But 

at the time, the Obama campaign and the administration's early actions sent strong 

signals that energized many communities interested in greater government transparency. 

My own case illustrates. In December 2009, between the time of President Obama's 

election and his inauguration, I hosted a policy forum at Cato entitled: "Just Give Us the 

Data! Prospects for Putting Government Information to Revolutionary New Uses.,,3 

Along with beginning to explore how transparency could be implemented, the choice of 

panelists at the event was meant to signal that agreement on transparency would cross 

ideologies and parties, regardless of differences over substantive policies. That agreement 

has held. 

In May 2009, White House officials announced on the new Open Government Initiative 

blog that they would elicit the public's input into the formulation of its transparency 

policies. 4 The public was invited to join in with the brainstorming, discussion, and 

drafting of the government's policies. 

The conspicuously transparent, participatory, and collaborative process contributed to an 

"Open Government Directive," issued in December 2009 by Office of Management and 

1 Macon Phillips, "Change Has Come to Whitehouse.gov," The White House Blog, January 20, 2009 

(12:01 p.m. EDT), http://www.whitehouse.govlblog/change has come to whitehouse-goy. 

2 Barack Obama, "Transparency and Open Government," Presidential Memorandum (January 21, 2012), 

http://www.whitehouse.gov/the-press-office/transparency-and-open-government. 

3 Cato Institute, "Just Give Us the Data! Prospects for Putting Government Infonnation to Revolutionary 

New Uses," Policy Forum, December 10, 2008, http://www.cato.org/event.php?eventid=5475. 

4 Jesse Lee, "Transparency and Open Government," May 21, 2009, 

http://www.whitehouse.govlblog/2009/05/21/transparency-anct-open-government. 

Testimony of Jim Harper, Director of Information Policy Studies. The Cato Institute 

to the House Committee on Oversight & Government Reiotnl 

March 12, 2013 

Page 3 of 13 
25 


Insert offset folio 16 here 80143.016

Budgct head Peter Orszag. S Its clear focus was 10 give the puhlic access to data. The 

directive ordcred agencies to publish within 45 days at least three previously unavailable 

"high-value data sets" online in an open fonnat and to register them with the federal 

government's data ponal, data.gov. Each agency was to create an '"Open Government 

Wcbpage" as a gateway to agency aClivities related to the Open Government Directive. 

Thcy did so with greater or lesser alacrity. 

But while pan-ideological agreement about transparency has held up well, the effon to 

produce transparent government has flagged. The data.gov effon did not produce great 

strides in government transparency or public engagement. And many of President 

Ohama 's transparency promiscs went by the wayside. 

His guarantee that health care legislation would be negotiated "around a hig table" and 

televised on C-SPAN was quitc nearly the opposite of what occurred.

6 His promise to 

post all bills sent him by Congress online for five days was nearly ignored in the first 

year. 7 His promise to put tax breaks online in an easily searchable fonnal was nOI 

fulfilled. Various other programs and projects ha\'e not produced the hoped-for 

transparency, public participation, and collaboration. And the Special Counsel to the 

President for Ethics and Government Refonn, who handled the White House's 

transparency portfolio, decamped for an ambassadorial post in Eastern Europe at the midpoint of President Ohama's first tenn. 

It's easy (aTKi cheap) for critics of the president 10 chalk his transparency failures up to 

campaign disingenuousness or political calculation. It is true that the Obama 

administration has not shone as brightly on transparency as the president promised it 

would. But my belief is that transparency did not materialize in President Ohama's first 

tenn because nobody knew what exactly produces transparent government. The 

transparency community had not put forward clearly enough what it wanted from the 

government, and the transparency effort got sidetracked in a subtle hut important way 

from "open government" to "open government data." 

Open Gnvernment \ '5. Open Government Data 

When the White House instructed agencies to produce data for data.gov, it gave them a 

very broad instruction: produce three "high-value data sets" per agency. According to the 

open government memorandum: 

} Pffer R. Orszaa;, "M"lTI(Irandum for the Hcads ofExccutive D<:partmentS and Agencies, Subject: Open 

Government Directivc," M to-06, December 8. 2009, hnp ;/l lI'hitebouK·gov opeuld<xvmcnt~l)· 

fov£mm"m-dirC'Ctjvc [hereinafter''Open Govcrnment Di=livc··). 

=Nea;OIiate Health Care Reform in Public Session~ Tdevised on C-SPAN,~ Politifac\.com, 

hnp /lwww ooljtjfaCl.coml!ruth-o-meter!promigslobamcterlpromisp'S! 7Ihcahh-care-refonn-publicF.!,ioTL .... e-SPANI. 

Jim Harper, "Sunlight BefOfC Signing in Obama's Fiw Term;'Cam blog, February 12, 2013. 

b!)p"/lwww uto (lrg!bIQglsynljgbt.sjgnjng-obamas-fiw-tcQU. 

Testi"""'l' of};'" 110<»01". 0"""" or 10_ I'<>licy Stud;,s, The CIllO 1!!Sri .... 

10 !he /1""", Co""'" ....... ~iPt.t. Go>crnmc:ol Reform 

1-1"""12.201) 

ofl) 
26 


Insert offset folio 17 here 80143.017

High-value information is information that can bc used to increase agency 

accountability and responsiveness; improve public knowledge of the agency and 

its operations; further the core mission of the agency; create economic 

opportunity; or respond to need and demand as identified through public 

consultation. 8 

That's a very broad definition. Without more restraint than that, public choice economics 

predicts that the agencies will choose the data feeds with the greatest likelihood of 

increasing their discretionary budgets or the least likelihood of shrinking them. That's 

data that "further[ s] the core mission of the agency" and not data that "increase[ s] agency 

accountability and responsiveness." 

"It's the Ag Department's calorie counts," as I wrote before the release of data.gov data 

sets, "not the Ag Department's check register.,,9 And indeed that's what the agencies 

produced. 

In a grading of the data sets, I found that most failed to expose the deliberations, 

management, and results of the agencies. Instead, they provided data about the things 

they did or oversaw. The Agriculture Department produced data feeds about the race, 

ethnicity, and gender of farm operators; feed grains, "foreign coarse grains," hay, and 

related cornmodities; and the nutrients in over 7,500 food items. 

"That's plenty to chew on," I wrote in my review of all agency data sets, "but none of it 

fits our definition of high-value." 10 

The agencies, and the transparency project, were diverting from open government to open 

government data. David Robinson and Harlan Yu identified this shift in policy focus in 

their paper: "The New Ambiguity of 'Open Government. ", They wrote: 

Recent public policies have stretched the label "open government" to reach any 

public sector use of [open] technologies. Thus, "open government data" might 

refer to data that makes the government as a whole more open (that is, more 

transparent), but might equally well refer to politically neutral public sector 

disclosures that are easy to reuse, but that may have nothing to do with public 

accountability. II 

8 Open Government Directive. 

9 Jim Harper, "Is Government Transparency Headed for a Detour?" Cato blog, January 15,2010, 

http://www.cato.orglblog/government-transparency-headed-detour. 

10 Jim Harper, "Grading Agencies' High-Value Data Sets," Cato blog, February 5, 2010, 

http://www.cato.orglbloglgrading-agencies-high-value-data-sets. 

11 Harlan Yu and David G. Robinson, "The New Ambiguity of 'Open Government,'" UCLA Law Review 

59, no. 6 (August 2012): 178. 

Testimony of Jim Harper, Director of Information Policy Studies, The Cato Institute 

to the I louse Committee on Oversight & Government Reform 

March 12,2013 

Page 5 of 13 
27 


Insert offset folio 18 here 80143.018

There's nothing wrong with open government data, but the heart of the government 

transparency effort is getting information about the functioning of government. I think in 

terms of a subject-matter trio that I have mentioned once or twice aiready--deiiberations, 

management, and results. 

Data about these things are what will make for a more open, more transparent 

government. That is what President Obama campaigned on in 2008, it is what I believe 

you are interested in producing through your efforts, and it is what I believe will satisfy 

the American public's demand for transparency. Everything else, while entirely welcome, 

is just open government data. 

Publication Practices for Transparent Government 

Deliberations, management, and results are complex processes, so it is important to be 

aware of another, more technical level on which the transparency project got bogged 

down. The transparency cornmunity did not meet public demand for, and political offer 

of, government transparency with a clear articulation of what produces it. We failed to 

communicate our desire for well-published, well-organized data, making clear also what 

that is. 

Believing this to be the problem, I embarked in 2010 on a mission to learn what data 

publication practices will produce government transparency. A surprisingly intense, at 

times philosophical, series of discussions with propeller-heads of various typesinformation scientists, librarians, data geeks, and so on-allowed me to meld their way of 

seeing the world with what I knew of public policy processes. 

In the Cato report, "Publication Practices for Transparent Government" (attached to my 

testimony as Appendix I), I sought to capture four categories of data practice that can 

produce transparency: authoritative sourcing, availability, machine-discoverability, and 

machine-readability. I summarized them briefly as follows: 

The fIrst, authoritative sourcing, means producing data as near to its origination as 

possible-and promptly-so that the public uniformly comes to rely on the best 

sources of data. The second, availability, is another set of practices that ensure 

consistency and confIdence in data. 

The third transparent data practice, machine-discoverability, occurs when 

information is arranged so that a computer can discover the data and follow 

linkages among it. Machine-discoverability is produced when data is presented 

consistent with a host of customs about how data is identifIed and referenced, the 

naming of documents and fIles, the protocols for communicating data, and the 

organization of data within fIles. 

Testimony of Jim Harper, Director ofinfonnation Policy Studies, The Cato Institute 

to the House Committee on Oversight & Government Reform 

March 12, 2013 

Page 6 of 13 
28 


Insert offset folio 19 here 80143.019

The fourth transparent data practice, machine-readability, is the heart of 

transparency, because it allows the many meanings of data to be discovered. 

Machine-readable data is logically structured so that computers can automatically 

generate the myriad stories that the data has to tell and put it to the hundreds of 

uses the public would make of it in government oversight. 12 

Following these data practices does not produce instant transparency. Users of data 

throughout the society would have to learn to rely on governmental data sources. 

Transparency, I wrote, 

turns on the capacity of the society to interact with the data and make use of it. 

American society will take some time to make use of more transparent data once 

better practices are in place. There are already thriving communities of 

researchers, journalists, and software developers using unofficial repositories of 

government data. If they can do good work with incomplete and imperfect data, 

they will do even better work with rich, complete data issued promptly by 

authoritative sources. 13 

Our efforts have not ceased with describing how the government can publish data to 

foster transparency. Starting in January 2011, the Cato Institute began working with a 

wide variety of groups and advisers to "model" governmental processes as data and then 

to prescribe how this data should be published. 

Our November 2012 report, "Grading the Government's Data Publication Practices,,14 

(part of which is attached to my testimony as Appendix II) examined how well the 

government publishes data reflecting legislative process and the budgeting, appropriating, 

and spending processes. Having broken down each element of these processes, we polled 

the community of government data users to determine how well that data is produced, 

and we issued letter grades. 

The grades were generally poor, and my assessment (mine alone, not endorsed by other 

participants in our process) was that the House has taken a slight lead on government 

transparency, showing good progress with the small part of government it directly 

controls. The Obama administration, having made extravagant promises, lags the House 

by comparison. Since the release of the report, more signs of progress have come from 

the House, including forthcoming publication of committee votes, for example. IS This 

12 Jim Harper, "Publication Practices for Transparent Government," Cato Institute Briefing Paper no. 121, 

September 23,2011, http://www.cato.org/publicationslbriefing-paper/publication-practices-transparentgovernment [hereinafter "Publication Practices"]. 

13 ld. 

14 Jim Harper, "Grading the Government's Data Publication Practices," Cato Policy Analysis no. 711, 

November 5, 2012, http://www.cato.org1publications/policv-ana]ysis!grading-governments-datap,ublication-practices. 

5 See Jim Harper, "Sunlight Before Signing in Obama's First Term," Cato blog, February 12, 2013, 

http://www.cato.orglb]og/sunlight-signing-obamas-first-tenn. 

Testimony of Jim Harper, Director of Information Policy Studies, The Cato Institute 

to the House Committee on Oversight & Government Reform 

March 12,2013 

Page 7 of 13 
29 


Insert offset folio 20 here 80143.020

gap could easily be closed, however, if the administration gives focused attention to data 

transparency. 

We Are Extending and Enriching Government Data Publication 

Having assessed the publication practices that we believe will foster transparency, and 

having graded the government's publication practices in key areas, we are not waiting for 

good data to materialize. We have begun producing the data ourselves. 

The low-hanging fruit for government transparency is the legislative process. In 

Congress, the long existence of the THOMAS Web site and the practice of publishing 

bills in a data format called XML (eXtensible Markup Language) make it easier to track 

what is happening than it is in other areas. But it is not easy enough, and we are working 

to make it even easier. 

At the Cato Institute, we have acquired and modified software that allows us to extend 

the XML markup in existing bills. While most of the code embedded in the bills that 

Congress produces deals with the appearance of the bills when printed, we are adding 

code that fleshes out what the bills mean. 

Using the data modeling we have done, we are tagging references to existing law in an 

organized, machine-readable way, so that people can learn instantly when a provision of 

law they care about is the subject of a bill. We are tagging budget authorities-both 

authorizations of appropriations and appropriations themselves-so that proposals to 

expend taxpayer funds are instantly and automatically available to the public and to you 

in Congress. 

This being Sunshine Week, we are holding sessions tomorrow and Friday to examine 

how our enhanced bill XML can be a tool for Wikipedians. People across the country go 

to Wikipedia for information, including information about public affairs, and we would 

like to see that they are met there by good information about prominent pieces of 

legislation and our laws. 

We plan to take our experience with marking up bills to other types of government 

documents and other processes. But it is difficult work. In the bills you write, you in 

Congress refer to existing law in varied, sometimes anachronistic ways. The varying 

ways your bills denote budget authorities sometimes make it very hard to represent 

clearly how many dollars are being made available for how many years. 

But one of the problems we really should not be having is identifying the organizational 

units of government referred to in bills. In addition to tagging existing law and proposed 

spending, we tag agencies, bureaus, and such. But we are essentially unable to tag entities 

below the agency and bureau level, and the tagging we are doing uses identifiers we 

cannot be sure are reliable. 

Testimony of Jim Harper, Director of Information Policy Studies, The Cato Institute 

to the House Committee on Oversight & Government Reform 

March 12. 2013 

Page 8 of 13 
30 


Insert offset folio 21 here 80143.021

We are doing what we can to make bills available for computer interpretation-and we 

should be able to do wonders when appropriation season comes around-but we are 

hindered by the lack of a machine-readable federal government organization chart. We 

need this basic government data, which is essential to transparency. 

Needed: A Machine-Readable Federal Government Organization Chart 

Data is a collection of abstract representations of things in the world. We use the number 

"3," for example, to reduce a quantity of things to an abstract, useful form-an item of 

data. Because clerks can use numbers to list the quantities of fruits and vegetables on 

hand using numbers like "3," for example, store managers can effectively carry out their 

purchasing, pricing, and selling instead of spending all of their time checking for 

themselves how much of everything there is. Data makes everything in life a little easier 

and more efficient for everyone 

Legislative and budgetary processes are not a grocery store's produce department, of 

course. They are complex activities involving many actors, organizations, and steps. The 

Cato Institute's modeling of these processes reduced everything to "entities," each having 

various "properties." The entities and their properties describe the things in legislative 

and budgetary processes and the logical relationships among them, like members of 

Congress, the bills they introduce, hearings on the bills, amendments, votes, and so on. 

A member of Congress is an important entity in legislative process, as you might 

imagine. And happily, there are already systems in place to identify them accurately to 

computers. The "Biographical Directory of the United States Congress" is a compendium 

of information about all present and former members of the U.S. Congress (as well as the 

Continental Congress), including delegates and resident cornmissioners. The "Bioguide" 

website at bioguide.congress.gov is a great resource for searching out historical 

information about members. 

Bioguide does a brilliant thing in particular for making the actions of Members of 

Congress machine-readable. It assigns a unique ID to each of the people in its database. 

To illustrate how Bioguide works, I've copied the Bioguide IDs for each member of this 

committee into a table. The Bioguide IDs you see in this table are used across machinereadable documents and government Web sites to make crystal clear to computers exactly 

whom is being referred to when the name of a member of Congress is used, no matter 

what variation there is in the way the member is referred to in the resource. 

This simple idea, of providing unique IDs for important components of governmental 

processes, is a basic building block of government transparency. Having Bioguide IDs 

has vastly improved the public's ability to oversee Congress, and the Congress's ability 

to track its own actions. 

Testimony of Jim Harper, Director of Information Policy Studies, The Cato Institute 

to the House Committee on Oversight & Government Refonn 

March 12, 2013 

Page 90f 13 
31 


Insert offset folio 22 here 80143.022

House Committee on Oversight and Government Reform: 

M em b ers h' IP an dB' 102Ul 'd e ID s 

Republican Members Bioguide Democratic Members Bioguide ID 

ID 

Rep. Darrell E. Issa 1000056 Rep. Elijah Cummings COO0984 

Rep. John L. Mica MOO0689 Rep. Carolyn Maloney MOOO087 

Rep. Michael Turner TOO0463 Rep. Eleanor Holmes Norton NOOO147 

Rep. John J. Duncan DOO0533 Rep. John Tierney TOO0266 

Rep. Patrick T. MOO I 156 Rep. Wrn. Lacy Clay COOI049 

McHenry 

Rep. Jim Jordan JOO0289 Rep. Stephen Lynch LOO0562 

Rep. Jason Chaffetz COOlO76 Rep. Jim Cooper COO0754 

Rep. Tim Walberg WOO0798 Rep. Gerald Connolly COO 1078 

Rep. James Lankford LOO0575 Rep. Jackie Speier SOO1175 

Rep. Justin Amash AOO0367 Rep. Matt Cartwright COOI090 

Rep. Paul Gosar GOO0565 Rep. Mark Pocan POO0607 

Rep. Pat Meehan MOOl181 Rep. Tammy Duckworth DOO0622 

Rep. Scott Desjarlais DOO0616 Rep. Danny K. Davis DOOO096 

Rep. Trey Gowdy GOO0566 Rep. Peter Welch WOO0800 

Rep. Blake Farenthold FOO0460 Rep. Tony Cardenas COOI097 

Rep. Doc Hastings HOO0329 Rep. Steve Horsford HOOlO66 

Rep. Cynthia Lummis LOO0571 Rep. Michelle Luian Grisham LOO0580 

Rep. Rob Woodall WOO081O 

Rep. Thomas Massie MOO1184 

Rep. Doug Collins COOI093 

Rep. Mark Meadows MOO1187 

Rep. Kerry Bentivolio BOO1280 

Rep. Ron DeSantis D000621 

But unique identification has not been applied to many other parts of government. The 

most glaring example is the lack of authoritative and unique IDs for the organizational 

units of government. The agencies, bureaus, programs, and projects that make up the 

executive branch of government are not uniquely identified to the public in a similar way, 

and the relationships among all the federal government's organizational units is not 

authoritatively published anywhere. 

In short, there is no machine-readable federal government organization chart. This is a 

glaring problem and a serious impediment to government transparency. 

Testimony of Jim Harper, Director of Infotmation Policy Studjes, The Cato Institute 

to the House Committee on Oversight & Government Reform 

March 12, 2013 

Page 10 of 13 
32 


Insert offset folio 23 here 80143.023

Were there a machine-readable federal govermnent organization chart, the unique 

identifiers for organizational units could appear in all manner of document: budgets, 

authorization bills, appropriation bills, regulations, budget requests, and so on. Then we 

could use computing to help knit together stories about all the different agencies in our 

federal govermnent, what they do, and how they use national resources. Internal 

management and congressional oversight would both strengthen. The DATA Act holds 

out the possibility of all this happening. 

The DATA Act: That Organization Chart and More 

The DATA Act essentially requires there to be a machine-readable govermnent 

organization chart and much more. Building on widely lauded experience of the 

Recovery Accountability and Transparency Board, the DATA Act calls for data reporting 

standards that are "widely accepted, non-proprietary, searchable, platform-independent 

[and) computer-readable.,,16 This is the centerpiece of the DATA Act, from my 

perspective, and it is true of versions of the bill in both the House and the Senate last 

Congress. 

To be a success, such standards must not only uniquely identify all the organizational 

units that carry out Congress's instructions in the executive branch. They must also 

identify budget documents; legislation; budget authorities; warrants, apportionments, and 

allocations; obligations; non-federal parties; and outlays. 

Having unique identifiers for each of these things, and attributes that signal their 

relationships to one another, will allow vast stores of information to emerge from the 

data. "Seeing" the relationship between a given budget, a given appropriations bill, the 

obligation it funded, and an outlay of funds will make available the "story" of what 

Congress does year in and year out with taxpayers' money. 

This data will make internal and congressional oversight far stronger. And it may help 

knit together the entire budget and spending process, so that expenditures can be matched 

to the results that Congress sought when it created programs and funded them. You in 

Congress and your constituents in the public will have better awareness of what happens 

in Washington, D.C. and in govermnent offices around the country. 

All this serves goals that span partisan and ideological lines. Organizing the spending 

process will reduce waste, fraud, and abuse in the first instance, as the likelihood of 

discovery will rise. Debates about programs may base themselves less on ideology and 

more on actual statistics about what spending achieved what results. In my "Publication 

Practices" paper, I wrote: 

Transparency is likely to produce a virtuous cycle in which public oversight of 

govermnent is easier, in which the public has better access to factual information, 

16 H.R. 2146 (112 Cong., 2nd Sess.). 

Testimony of Jim Harper, Director of Information Policy Studies, The Cato Institute 

to the House Committee on Oversight & Government Refonn 

March 12. 2013 

Page II of 13 
33 


Insert offset folio 24 here 80143.024

in which people have less need to rely on ideology, and in which artifice and spin 

have less effectiveness. The use of good data in some areas will draw demands for 

more good data in other areas, and many elements of governance and public 

debate will improve. 17 

I do believe this is true, though these ideal outcomes will not be reached automatically. 

Indeed, they will require a lot of effort to achieve. 

Essential to producing the standards that foster these benefits is the existence of one 

authority positioned to require them. It seems natural for spending data standardization to 

be handled by the Office of Management and Budget, but that office has so far proven 

unwilling to move forward. Thus, the creation of a Federal Accountability and Spending 

Transparency board or commission may be warranted. My preference, of course, would 

be for economy in the creation of more federal entities to track. .. 

I was surprised in September of2011 to see the Congressional Budget Office estimate for 

the version of the DATA Act this committee reported to the House. The estimate of$575 

million in outlays to implement the DATA Act over five years was quite nearly 

unbelievable. The thing that may make it believable is if waste, fraud, and abuse infects 

implementation of the DATA Act. 

I believe that it will cost less than the CBO predicts to implement the DATA Act should 

it become law. Modifying federal data systems may have costs in the short term, but 

complying with standards should have essentially no cost after the initial retooling. If it 

does take as much to fully implement the Act as the CBO estimates, that is proof of a sort 

that we need oversight systems like this that can hold costs down. 

The GRANT Act, FOrA Reform, and More 

Our transparency research and work has not extended to federal grant-making, which is a 

significant subset of all federal spending. It seems obvious that bringing transparency and 

organizational rigor to grant administration would have similar salutary effects to what 

we can expect in government spending generally. 

Outright waste would be curtailed. The results of grant-making for public policy goals 

would be clearer. And participants in the grant-making process would be more sure of 

fair treatment. 

I understand there are concerns with the version of the GRANT Act introduced in the last 

Congress, such as with the potential that anonymous peer review might be undercut by 

transparency. This is a genuine issue, which can almost certainly be overcome with some 

careful thinking and planning. If it cannot, my belief is that the interest of the taxpayer in 

17 Publication Practices. 

Testimony of Jim Harper, Director ofInfonnation Policy Studies, The Cato Institute 

to the House Comntittee on Oversight & Government Refonn 

March 12.2013 

Page 12 of 13 
34 


Insert offset folio 25 here 80143.025

accountable grant administration is generally superior to the interests of peer reviewers in 

privacy or anonymity. 

Of course, Freedom of Information Act reforms are an important part of the transparency 

agenda. I am not expert in FOIA, and it is my hope that proactive and thorough data 

transparency may partially diminish the need for FOIA requests because transparency 

policy has made clear what deliberative processes agencies have used, for example. 

Even in a world with the fullest data transparency, there will be a public need for access 

to key government documents and information on request. I support the FOIA reforms 

that will get the most important information disseminated the most broadly so that 

American democracy functions better and so that public oversight of the government is 

strong. 

Conclusion 

It is a pleasure to work on an issue like transparency, widely supported as it is across 

partisan and ideological lines. Transparency is a means to various ends that can co-exist. I 

believe, for example, along with my conservative friends, that transparency will reduce 

the demand for government and increase the demand for private authority over decisions 

and spending that the government currently controls. If transparency produces this result, 

it will be a product of democratic processes that I think my liberal and progressive friends 

would be hard-pressed to reject. If, on the other hand, transparency wrings waste, fraud, 

and abuse out of government programs, validating them and increasing their support, I 

will enjoy the gain of having a better-managed government. 

If there is division in the transparency issue, it is between the outsiders and the insiders. 

Information is power, and non-transparent practices are a way of preserving power for the 

few who have attained it. 

The enjoyment of power by the few is inconsistent with the underlying theory of 

democracy, of course, and with our shared American commitment to the idea that power 

springs from the people. The moral high-ground in debates about transparency is always 

with those who want to know more about what their government is doing with their 

money and their rights. While there may be some narrow exceptions to the rule that the 

people have a right to know, the transparency status quo is far from that line. 

Anything this committee can do to improve the quality and quantity of data about the 

government's deliberations, management, and results will bring credit to the committee 

and this Congress. 

Testimony of Jim Harper, Director ofInfonnation Policy Studies, The Cata Institute 

to the House Conunittee on Oversight & Government RefolUl 

March 12,2013 

Page 13 of 13 
35 


Insert offset folio 26 here 80143.026

Appendix I 

Publication Practices for Transparent Government 
36 


Insert offset folio 27 here 80143.027

Publication Practices for 

Transparent Government 

by Jim Harper 

No. 121 September 23, 2011 

Executive Summary 

Government transparency is a widely agreed 

upon goal, but progress on achieving it has been 

very limited. Transparency promises from politi~ 

cal leaders such as President Barack Obama and 

House Speaker John Boehner have not produced 

a burst of infonnation that informs stronger 

public oversight of government, One reason for 

this is the absence of specifically prescribed data 

practices that will foster transparency. 

Four key data practices that support government transparency are: authoritative sourcing, availability, machine-discoverability, and 

machine-readability. The first, authoritative 

sourcing, means producing data as near to its 

origination as possible-and promptly-so that 

the public uniformly comes to rely on the best 

sources of data. The second, availability, is another set of practices that ensure consistency 

and confidence in data. 

The third transparent data practice, machine-discoverability, occurs when information 

is arranged so that a computer can discover the 

data and follow linkages among it. Machinediscoverability is produced when data is presented consistent with a host of customs about 

how data is identified and referenced, the naming of documents and files, the protocols for 

communicating data, and the organization of 

data within files. 

The fourth transparent data practice, machine-readability, is the heart of transparency, 

because it allows the many meanings of data to 

be discovered. Machine-readable data is logically structured so that computers can automatically generate the myriad stories that the 

data has to tell and put it to the hundreds of 

uses the public would make of it in government 

oversight. 

lim Harper is director of information policy studies at the Cato Institute and webmaster of government transparency website 

Washington Watch. com. 

Cato Institute' 1000 Massachusetts Avenue, N.W .• Washington, D.C. 20001 • (202) 842-0200 
37 


Insert offset folio 28 here 80143.028

Digitization 

and the Internet 

have had 

transformative 

effects on 

bookselling, 

banking and 

payments, 

news,and 

entertainment, 

but these 

technologies have 

barely touched 

government. 

Introdnction 

I'll make our government open and 

transparent, so that anyone can ensure 

that our business is the people's business. 

When there's a tax bill being debated 

in Congress, you will know the names 

of the corporations that would benefit and how much money they would 

get. 

The Internet offers new opportunities to open the halls of Congress 

to Americans in every corner of our 

nation. 

The lack of transparency in Congress 

has been a problem for generations, 

under majorities Republican and 

Democrat alike. But with the advent 

of the Internet, it's time for this to 

change. 

During electoral and political campaigns, 

transparency promises seem to now like water. The quotes above~the first (\\'0 from 

President Obama and the second two from 

Speaker Boehner-were issued during these 

officials' runs for higher office. Then~sena~ 

tor Barack Obama (D-IL) spoke abour transparency to roars of applause on the presidential campaign traiL 1 Minority Leader 

John Boehner (R-OH), seeking to outflank 

Speaker Nancy Pelosi and the Democrats on 

their management of the House of Representatives, touted transparency in a video recorded in the u.s. Capitol's Statuary Hall.2 

So what happens to transparency promises when the campaign ends? Having achieved 

their political goals, do elected officials just 

throw transparency out like so much bath~ 

water? Digitizarion and the Internet have had 

transformative effects on bookselling, banking and payments, news, and entertainment, 

but these technologies have barely touched 

government. This might be consistent with 

the predictions of public choice economics: 

2 

transparency will generally reduce politi~ 

cians' freedom of action by increasing public 

oversight. Having more information available 

to more people would allow more secondguessing of politicians' decisions, weakening 

inputs into electoral success such as fundrais~ 

ing and logrolling. So maybe politicians will 

always reject transparency, even as. they sing 

irs praises. 

But the story is more complex than that. 

If transparency promises were convenient 

election~eve fibs, Ohama would probably 

not have made issuing an open government 

memorandum his first executive action 

upon taking office, \Vith his election only 

months past and a re-election campaign 

nearly as far away as it could be, he called 

for a transparent, participatory, and collaborative federal government on his first day in 

office.3 Late in Obarna's first year, his director of the Office of Management and Budget (OMB), Peter Orszag, issued an Open 

Government Directive instructing executive 

departments and agencies to take specific 

actions to implement the principles of transparency, participation, and collaboration.4 

The White House created an "Open Government Initiative" page on its website, Whitehouse.gov,5 and documented the work on 

its open-government blog.6 Pursuant to the 

Orszag directive, agencies produced "open 

government plans" and released "high-value 

data sets," registering the latter on the new 

Data.gov website? These actions do not reflect insincerity, but rather a good-faith effort to advance transparency goals. 

Boehner commands far fewer organs of 

government than the president, but his efforts, and those of the Republican House 

leadership, have been roughly proportional 

to the president's, Upon taking control in 

the 112th Congress, Republicans passed a 

package of rule changes aimed at increasing 

rransparency.8 This package included a 72-

hour rule requiring the posting of bills ({in 

electronic form" for three days before a vote 

on the House floor. In April, Boehner and 

Majority Leader Eric Cantor (R-VA) wrote a 

letter to the House Clerk asking her to tran-
38 


Insert offset folio 29 here 80143.029

sition toward publishing legislative data in 

open formatsY 

Like Obama, House Republicans are following up their transparency promises with 

efforts that are at least adequate. All prob· 

ably recognize that transparency is a gro\v· 

ing demand of the public and that meeting 

that demand will help them win elections. 

Yet neither the administration nor Congress 

has become notably more transparent. 

Perhaps the transparency shortage can be 

explained by simple lack of effort. Time constraints exist for politicians just like everyone else-if they spent more time on transparency, we would probably get more of it. 

But this conclusion is too facile and not revealing enough. It provides no way forward 

other than to join the interest·group serum 

urging "more dedication" to a particular 

cause. And it offers no hope of resolving the 

problem: How will we know when we've got 

transparency? 

The better explanation for transparency 

floundering in the face of good-faith effort 

is indeterminacy. Though transparency is 

a widely recognized value, nobody knows 

exactly what it is. The steps that produce 

transparent government are opaque-ironically-so transparency efforts have not crystallized or produced positive change. 

The Data.gov project helps to illustrate 

this. The OMB's Open Government Directive called for each agency to publish three 

high~value data sets. According to the memorandum, high-value information is: 

information that can be used 

to increase agency accountability 

and responsiveness; improve public 

knowledge of the agency and its operations; further the core mission of the 

agency; create economic opportunity; 

or respond to need and demand as 

identified through public consultation. lD 

For all its verbiage, that definition has 

almost no constraints. Anything could be 

ranked "high-value." And sure enough, agen3 

cies' high-value data feeds ran the gamut 

from information that might truly inform 

the public to things that could interest only 

the tiniest niche researcher. An informal 

Cato Institute analysis examined the data 

streams each agency released and graded 

the agencies using a more-demanding defi~ 

nitlon of high value: whether their releases 

provide insight into agency management, 

deliberations, or results. II There were some 

As, but Ds were more common. The rating 

given to the Agriculture Department is an 

example of the latter: 

The Ag Department produced data 

feeds about the race, ethnicity, and 

gender of farm operators; feed grains, 

"foreign coarse grains," hay, and related items; and the nutrients in over 

7,500 food items. That's plenty to 

chew on, but none of it fits OUf definition of high-value, 

"Management, deliberation, and results" 

is only a loose description of what information the public might most benefit from 

seeing, and agencies were not obligated by 

OMS to rise to that standard, so a poor 

grade is not damning. More discussion between the public (represented by the transparency community) and government will 

specify more concretely what information 

should be published. 

But there are more questions than this: 

How is it that thousands of data feeds are 

supposed to "connect up" with the websites, 

researchers, and reporters who would tum 

them into useful information? How is it 

that a great mass of data is supposed to find 

the people that can use it, and the people 

find the data? 

In December 2008, a Cato Institute policy 

forum focused on the transparency commitments of the new president. Its title was 

"Just Give Us the Data! Prospects for Putting 

Government Information to Revolutionary 

New Uses.nI2 The Obama administration 

did exactly that, publishing lots and lots of 

data, but transparency did not flourish. The 

Though 

transparency 

is a widely 

recognized value, 

nobody knows 

exacdy what it is. 
39 


Insert offset folio 30 here 80143.030

Information 

must be delivered 

in specific 

ways-"liquid" 

and relatively 

"pure"-for the 

body politic to 

consume it well. 

simple sloganeer's demand for "the data" 

was immature, 

In this paper, we explore more deeply how 

to produce government transparency. Transparency is not only about access to data, or 

its substance in management, deliberation, 

or results. Government transparency is a set 

of data-publication practices that facilitate 

"finding" -the matching up of information 

with public interest, 

Recognizing the discrete publication practices that produce transparency can crystallize the forward progress that everyone wants 

in this area. Rather than "more effort," or 

other indeterminate demands, the transparency community and the public can measure 

whether government entities and agencies 

are publishing data consistent with transparency. Measurable transparency behaviors will help the public hold officials to account after their transparency promises have 

brought them into office. Government officials should know that the public is not satisfied, and will not be satisfied, until data flows 

like water and government information like a 

mighty stream. 

Publication Practices for 

Transparent Government 

Water is a useful metaphor for data. Salt 

water can't quench a person's thirst. Nor 

can a block of ice, or water vapor. Water has 

to be in a specific form, liquid and reasonably pure, for it to be drinkable. So it is with 

government data and transparency. There 

is an endless sea of publications, websites., 

speeches, news reports, data feeds, and social media efforts, but somehow the public 

still thirsts for information it can use. Water, 

water, everywhere, and not a drop to drink. 

It turns out that information, like water, 

must be delivered in specific ways-(~liquid" 

and relatively "pure"-for the body politic 

to consume it well. Data about government 

agencies, entities, and activities must be 

published in particular ways if it is going to 

facilitate transparency. 

4 

When the Republican 1 04th Congress 

created the THOMAS legislative system in 

1995, it was a huge advance for transparen~ 

cy-a huge advance from a very low baseline, 

at least. Publication on THOMAS might be 

summarized as a disclosure model, in which 

certain key documents and records were 

made available "as is," or in a limited number of forms optimized for the World Wide 

\Veb, which is just one way of sharing information on the Internet. Much of the discussion today about putting bills online and 

having members of Congress "read the bill" 

is still framed in terms of disclosure, but the 

underlying demand is something more. 

Since the mid-90s, the way people use the 

Internet has changed dramatically. "Web 2.0" 

is the buzzword that captures the shift from 

one~way publishing toward interactivity and 

user-generated content. On the modem Internet, data serves as a platform for interaction and decisionmaking. 

TIle next steps in government transparency must match this change, going beyond 

simple disclosure of documents and records 

to publication of data in ways the modern 

Internet can use. Governments should publish data that reflects their deliberations, 

management, and results in highly accessible 

ways that natively reveal meaning. Publication of government data this way will allow 

the public to digest government information 

and take concrete actions in response. 

Four categories of information practice, 

discussed below, are a foundation for government transparency that the public is 

quickly coming to expect. They are: authoritative sourcing, availability, machine-discoverability, and machine-readability. 

A number of papers and documents produced over the last few years have advocated, 

described, and discussed transparent government data practices in parallel to these 

concepts. A 2007 working group meeting 

in Sebastopol, California, for example, produced a suite of 8 principles for open government data,13 which was later increased to 

10 principles in August, 2011.14 The recommendations of the Open House Project, also 
40 


Insert offset folio 31 here 80143.031

published in 2007, were animated by these 

good information practices. IS There are 

many other such documents. 16 

The federal government has not embraced these data publication practices yet, 

so transparency has not yet flourished as it 

could. In part, this is because the specific 

information practices that will set the stage 

for transparency are still unclear. 

Everyone knows what drinkable water 

is, but it takes physicists, chemists, and biologists to make sure drinkable water is 

what comes out of the tap. Parallel sciences 

go into producing data in formats that are 

consistent, fully useful, and fully informative. The discussion that follows does not 

fully detail each information practice (hat 

will foster government transparency, but it 

should alert people familiar with computing 

and the Internet to the practices that prepare 

data adequately for public consumption. 

The digital world is different from the 

physical world in many ways. Data can come 

and go in ways that physical things do not, 

so things that are given, obvious, or easy 

in the physical world have to be thought 

through and watched after in the digital 

world. For this reason, the first transparent 

data practice-establishment of "authority" 

around data-requires unique attention. 

Authoritative Sourcing 

Just as people look to authoritative books 

or thinkers to know the right answers about 

science, life} or philosophy, they look to au~ 

thority in data to be confident of having the 

right information and a fully accurate account of the things data describe. Authority in data is a lot like authority in other areas-it is about knowing where to look for 

data and what sources to trust, Because of 

people)s willingness to trust and use reliable 

resources more than unreliable ones, data 

can be more or less transparent depending 

on the quality of its authority. 

Authority means a number of related concepts dealing with who is responsible for pubIication and who is recognized as responsible. 

The word "authoritative" ha..<;; a couple of 

senses) both of which are relevant to authoritative sourcing. One sense is formal: data 

should come from the authoritative sourcewhich is almost always the entity that creates 

or first captures the data..17 Uniting the data 

and its origin is a good idea because authoritative sourcing reduces the chance of error 

and fraud, for example, Authoritative sourcing also makes it easier for newcomers to fmd 

data, because the creator and the publisher 

are the same. The shortest possible "chain of 

custody" between the information's origination and its publication is best. 

If the data's creator delegates the responsibility to publish) then the second sense of 

authoritative is in play. That is the sense that 

some entity is recognized by the relevant 

public as fully reliable. The delegated publisher should be recognized as the authoritative data source. 

It is sometimes easiest to illustrate good 

practices by highlighting error. A small gap 

in authority exists today in the publication 

of certain u.s, federal legislative data, such as 

the text of bills . Congress has delegated the 

authority to publish information about bills 

and their texts to the Government Printing 

Office, which puts such information on its 

FDsys website. 18 But if you were to ask most 

experienced Washington hands, and even 

many people working with legislative data, 

what the source of legislative information 

was, they would probably think first of the 

Library of Congress' THOMAS system.19 

But THOMAS is a downstream republisher of data, some of which the Government 

Printing Office originates on behalf of the 

Congress. Most users of legislative data do 

not look to FDsys or THOlv1AS, however. 

They use data collections at govtrack.us,20 

a website whose operator curates legislative 

data for public use. 

These small gaps in authority are not a 

significant problem. But multiple sources 

publishing the same data without revealing 

its provenance can be a problem for authority. The entity that has the legal authority 

Data can be 

more or less 

transparent 

depending on 

the quality of its 

authority. 
41 


Insert offset folio 32 here 80143.032

Authoritative 

sourcingthe notion 

of one entity 

known to have 

responsibility 

for publishing 

data-is a simple 

but important 

transparency 

practice. 

to publish data and the entity that is recognized by the relevant public as the authoritative source should be the same. 

A practice that promotes authority is 

real-time or near-real-time publication.21 If 

an agency like the Department of Defense, 

for example, were to publish a compilation 

of contract documents every month, rather 

than a real-time, hourly, or daily record of 

such documents, then data aggregarors, lobbying firms, news outlets, or others might 

make a good business of coUeering contract 

information and publishing it before the Defense Department does. Various audiences, 

hungry for information, would rightly turn 

to these organizations and divide theif loyalties among data sources. Though meeting 

a legitimate need, this dynamic would pro~ 

duce multiple nonauthoritative data sources, introducing inefficiency and the poten~ 

tial for error and confusion-as well as literal 

delay-into the process. These are all things 

that weaken transparency. 

The authority required for transparency 

is earned through prompt publication of 

data in useful open standards-"authority 

through being awesome," in the words of the 

Sunlight Foundation's Eric Mil1.22 This con~ 

trasts with the assertion of authority that 

exists when the focus is on publishing in file 

formats that explicitly include authority information. Digital mechanisms that seek to 

ensure authenticity, such as cryptographically signed files, certainly have their place 

in securing against forgery, for example. But 

ensuring authenticity this way can be counterproductive to transparency if it slows 

publication or locks data in difficult-to-use 

formats. 

Transparency will also be strengthened if 

an authority has ways to correct data.23 Especially in \\1.delyvariable human processes like 

legislating and regulating, thete are plenty 

of opportunities for incorrect data to see 

publication. This highlights the need for an 

authoritative publisher. When the authority becomes aware of error-and it should 

be open to receiving such information from 

data users-the authority can publish the flx 

and propagate the newly corrected information to all downstream users. 

If several data sources act as originators 

for downstream users, errors may persist in 

some systems while they are corrected in oth~ 

ers. The information produced by one set of 

data may be different from another, sowing 

confusion and detracting from transparency's goals. Sodety would waste time and 

effort in the absence of good authority determining which data set is right, rather than 

moving forward on the things that make life 

better for people. 

Authoritative sourcing-the notion of 

one entity known to have responsibility for 

publishing data-is a simple but important 

transparency practice. It is an anchor for the 

next set of transparency-friendly data publication practices, clustered around availability. 

Availability 

Availability consists of a variety of practices that ensure information can reliably be 

found and used24 Availability in the digital 

world is a lot like availability in the physical 

world-it's having access to what you needbut availability is very easy to violate in the 

data realm. A physical thing, like a phone 

booth, takes a fair amount of work to make 

unavailable, so we don't think about the 

importance of availability with such things. 

Data can be made unavailable with careless 

planning or the touch of a button, so avail~ 

ability is important to plan fot. Availability 

has a number of features. 

Permanence is an important part of avail~ 

ability.25 A thing is not truly available unless 

it exists for good. Data that reflects the activities of an agency in issuing regulations, for 

example, reflects very important real~wor1d 

activity. Just as society needs a permanent re~ 

cord of this lawmaking process to have confidence in it, data users need a permanent 

record of data to be confident in the data 

they use and the results it produces. Once 

published, data should exist forever, so that 
42 


Insert offset folio 33 here 80143.033

one person can confirm another's version of 

events, so that anyone can check the original 

data source, and so on. Data that disappears 

at some point after publication is harder to 

rely on. Part of making data available is keeping it available forever. 

Similarly) data should be stable, meaning 

it should alwavs be found in the same location. Think of whether you might consider 

a pay phone to be available for your use if 

it was only sometimes on the street corner 

near your office, If a pay phone moved from 

place to place at random rimes, it would be 

hard to know if you could actually use it at 

any given hour. It would not be fully available. It is the same with data, which has to 

be in the same place all the time to be truly 

available. 

Data is available when it is complete,26 A 

partial record is partial because some part of 

it is unavailable. That is not sufficient, because users of the data could produce incorrect results with incomplete information. Of 

course) any data set mUSt have a scope. But 

if the scope is not obvious from context, it 

should be explained in the data's documentation, A partial record is unreliable, and it 

cannot be used to tell the stories that full 

data records can, so it does not foster transparency as it should. 

In general, data about government deliberation, management, and results should be 

made available on the Internet for free. 27 If 

government entities are executing well on au~ 

thoritative publication, this practice should 

have no cOSts additional to the creation of 

the data. Execution of key government functions, creation of data about that execution, 

and publication of that data should all be essentially the same thing. Data that is not at 

the core of governmental functions or other 

exceptions-gigantic, nicheMinterest, or rarely 

used data sets, for example-might be made 

available on other terms. But cost-free online access to essential-governmentMfunction 

data is best. 

The processes by which data is made 

available are also relevant. Data is fully available when it is available both in bulk and 

incrementally. In bulk means that the en~ 

tire data set is available all at once. This is 

so that a new user can access the data or existing users can double-check that a copy of 

the data they have is accurate and complete. 

Incremental means that updates to the data 

are published in a way that allov.·s a user to 

update his or her copy of the data. Requiring 

users to download bulk data JUSt to access 

recent changes may be prohibitively costly, 

so it does not fully meet the need for data 

availabilitv. 

There is another sense to availabilitya legal sense. In fact, there are tWO senses 

to legal availability. Data is fully available 

when it is structured using standards that 

are unencumbered by intellectual property 

claims.28 There are techniques for manipulating and storing data that are covered by 

patent claims, for example. To use them, one 

must pay the owner of the patent a licensing fee. If it costs money to use the standard 

in which data is published, that data is not 

fully available. It is encumbered by licensing 

costs. 

Similarly, data itself may sometimes be 

subject to intellectual property claims. If a 

string of text in a database is copyrighted, 

for example, that datum is not fully available. It is encumbered by legal claims that 

limit its use. This will not usually be the case 

with federal government data; works of the 

government are not generally copyrightable. 

But some materials that are made a part of 

government records may be copyrightable 

or copyrighted. and some government enti~ 

ties may claim copyright in their documents 

or try to assert other forms of restriction 

on information they produce or publish.29 

Government data should not be controlled 

by intellectual property laws or otherwise 

restricted, and data that is so controlled is 

not sufficiently available. 

"Available" in the world of data is more 

complex than it sounds, There are a variety 

of ways that data can be rendered unavailable, so it is important to think about availability and to provide it in support of transparency. With authoritative sources making 

Availability 

consists of 

a variety of 

practices 

that ensure 

information 

can reliably be 

found and used. 
43 


Insert offset folio 34 here 80143.034

There must be 

sufficient order 

to the way things 

are referred to 

in links and data 

for that data to 

be truly machinediscoverable. 

data available, machine-discoverability and 

machine-readability round out the data 

publication practices that can produce 

transparency. 

Machine-Discoverability 

As we move more deeply into the technical details of transparency, we come to aCODcept closely related to availability, but going 

more to the particular techniques by which 

data is made available. This is machinediscoverability. The question here is whether 

data is arranged 50 that a computer can discover the data and follow linkages among it. 

In a literal sense, data is machine-discoverable when it can be found by a machine. 

Because of powerful consensus around protocols, this basically means using hypertext 

transfer protocol (HITP), the language used 

behind all websites,30 and links using hypcr~ 

text markup language (HTML)31 that direct 

machines to data. 

But full machine discoverability means 

more than following these two customs 

alone: it means following a host of customs 

about how data is identified and referenced, 

including the organization and naming of 

links, the naming of files, the protocols for 

communicating files, ,and the organization 

of data within files. There must be sufficient 

order to the way things are referred to in 

links and data for that data to be truly rna· 

chine-discoverable. 

A consistent uniform resource locator 

(URL) structure is an important way of making data discoverable. The links from the 

home page of a website to substantive data 

should exist and make sense. The words in 

the link, and the links themselves, should be 

accurately descriptive or orderly in some oth~ 

er logical way to help people find things. Just 

as people follow links they think will take 

them to the data they want, search engines 

('spider" data-crawling, spiderlike, through 

every link they find-to record what data is 

available. 

One illustration of discoverability failure comes from early implementation of 

Ohama's "Sunlight Before Signing" promise on Whitehouse.gov. As a campaigner, 

Obama promised he \vould post bills online 

for five days prior to signing them. When the 

\Xlhite House began to implement this practice early in the new administration, it began 

putting pages up on W'hitehouse.gov for bills 

Congress had sent to the president. But these 

pages were not within the link structure that 

starts on the 'Whitehouse.gov homepage. 

A person (or search engine) following every 

link on Whitehouse.gov would not have arrived at these pages.32 The bills were literally 

posted on the \Xlhitehouse.gov domain, but 

they were not discoverable in any practical 

sense. The only way to find them was to use 

Whitehouse.gov's search engine, knowing 

ahead of time what terms to search for. 

Sometimes machine-discoverability will 

be thwarted by the failure to publish like 

data in like ways. In 2007, Congress began requiring its members to disclose the earmarks 

that they had requested from the appropria~ 

tions committees, This was an important 

step forward for transparency-some disclosure is better than none-but nothing about 

the disclosure fules made the information 

machine-discoverable. Members of Congress 

put theif disclosures on their own websites 

with no consistency as to how the files were 

named. The result was that eannark requests 

were still hard to find-for humans and machines both. Members of Congress followed 

the path of least resistance, which also happened to frustrate transparency and the 

small transfer of power to the public that 

transparent publication would have produced. Fully transparent earmark disclosure 

would have required earmark requests to be 

consistently linked or, more likely, to have 

been reported to a central clearinghouse for 

publication, such as the appropriations committees receiving the requests. 

Not only was the dispersion of earmark 

data across websites a problem, it was also 

in multiple, inconsistent file formats. Some 

members posted their information on webpages in HTML format, Some posted por-
44 


Insert offset folio 35 here 80143.035

table-document file (PDF) lists of their earmarks. Still others posted scanned PDF images of earmark request printouts. Because 

there was no consistency among the earmark 

disclosures) computers had a very hard time 

recognizing them as being similar, and earmark transparency was weakened. To enhance public access to earmark information, 

transparency and taxpayer groups gathered 

earmark data from all over the House and 

Senate websites. 33 Though these assemblages 

lacked authority, they were more transparent than the undiscoverable earmark request 

webpages produced pursuant to House and 

Senate rules. 

File naming, storage, and transfer conventions are important. When they look at a 

file, some machines (and a few people) look 

at the name of the file to figure out how to 

open it and learn what it contains, There are 

strong conventions about file naming that 

help machines do this-conventions that are 

familiar to many. Webpages often end with 

,htmI, for example, Microsoft Word files end 

with the suffIx .doc. Excel fIles end with .xls. 

Simple text files, or plain text, end with .txt. 

HTTP improves on file-name extensions by 

indicating files' multipurpose Internet mail 

extension (MIME) type, which is independent offile name extensions.34 

When these customs are violared it makes 

data harder to discover by machine. The 

Federal Election Commission (FEe), for example} has created its 0\\'11 class of text file 

that it labels .fec.35 This means that a visitor 

does not know what kind of files they are. 

The FEe site serves files using file transfer 

protocol (FTP), which does not signal the 

MIME type. This frustrates a computer scan 

or search~engine spider's attempt to open 

the files. Worst of all, the files are zipped, 

meaning they have been compressed using 

an algotithm that makes it hard for a Web 

crawler to look inside them. 

Ultimately, discoverability is a function of 

how easy or hard it is for machines to locate 

data Various good practices make data more 

discovetable, and failure to follow these 

practices makes it less discoverable. These 

things have to be thought through in the 

data \vorld) \vhich does not have the same 

fIxity that makes maps reliable in the physical world. 

Machine~discoverabiliry is the product of 

relatively mechanical practices and conventions about data publication-'\vhere things 

are on the Internet:) But as it reaches higher 

levels of refinement, discoverability of files 

and their content blends in with what might 

be called conceptual discoverability-'\vhat the 

things on the Internet are." Data is IDOst dis~ 

coverable is if its meaning is apparent from 

its structure and organization, This blends 

into machine-readability, which allows data, 

once discovered, to see substantive use, 

Machine-Readability 

Machine-readability is what: truly brings 

data to life and makes it transparent. 

Machine-readability goes beyond the generic finding in machine-discoverability to 

a deeper level-a level at which the data can 

be used in meaningful and valuable ways.36 

As legislative data guru Josh Tauberer writes, 

"[D]ata's value depends not only on its subject, but also on the format in which the information is shared. Format determines the 

value of the resource and the extent to which 

the public can exploit it for analysis and re~ 

use."37 The Association for Computing Machinery puts it similarly: «Data published by 

the government should be in formats and 

approaches that promote analysis and reuse of that data."38 Analysis and reuse-that 

means searching, sorting, linking) and transforming information in ways that support 

people's substantive goals. 

Machine~readable data has what might 

be called semantic richness. That means that 

meaning is easy to discover from it. Transparency is meant to give the public access to 

the meaning of various government actions 

the way the public has access to meaning in 

other areas oflife. 

The human brain brings a wealth of semantic information to bear when it perMachinereadability 

is what truly 

brings data to 

life and makes it 

transparent. 
45 


Insert offset folio 36 here 80143.036

There are literally 

thousands of 

different stories 

that computers 

might generate 

automatically 

from 

disambiguated or 

normalized data. 

ceives the vvorld. \'{'hen a student sitting 

in an American history class, for exampJe, 

hears another student talk about Wilson, 

she knows from the context of the situation 

that the other student is probably talking 

about the former president of the United 

States. A student in a popular-film class 

might assume \XTilson to be the name of the 

volleyball friend of Tom Hanks in the movie Castaway. A student in a physical education course might assume Wilson to be the 

company that makes volleyballs and tennis 

balls. To say these people know these things 

is to say that they make quick-blindingly 

quick-calculations about what the word 

"Wilsonn refers to when they hear it. 

A computer does not do those kinds of 

calculations unless it is told to do them. To 

make computers comprehend strings oflet~ 

ters like ('Wilson)" these strings have to be 

disambiguated, or normalized. That is, they 

have to be placed into a logical structure, 

often using distinct identifiers that substitute for clumsy identifiers like names. This 

allows machines to recognize distinctions 

among things that are otherwise similar. 

Distinct Identifiers 

Like Wilson, the name Rogers has many 

meanings. It's the name of a telecommunications company in Canada. It's also a city 

in Arkansas, and another city in Minnesota. 

It's a county in Oklahoma, and it's the name 

of a famous architect. A man and his wife in 

Portland, Oregon, are named Rogers~as are 

their three children-and lots of other people 

around the country. While the name Rogers 

does a lot of good in small circles to distinguish among people, it is a terrible way in 

to find a specific person or thing in the big 

digital world. Even the custom of attaching 

a given name to a surname doesn't work in 

digital environments. JUSt ask Mike Rogers. 

Mike Rogers is the name of two different people currently serving in the House of 

Representatives. One Mike Rogers is from 

Michigan and the other Mike Rogers is from 

Alabama. Their staffs undoubtedly receive 

mail and phone calls meant for the other 

10 

Mike Rogers all the time. But Congress has 

done something important to clear up this 

ambiguity. It has disambiguated these Mike 

Rogerses (and all elected representatives) 

within its Bioguide system.39 

Mike Rogers, the representative of Mich~ 

igan's 8th district, has the Bioguide ID: 

"R000572." Mike Rogers, the representati\'e 

of Alabama's 3rd district, has the Bioguide 

ID: "R000575/' Substituting abstract strings 

oflctters and numbers for names helps computers identif)' more accurately the information they are scanning. \Vith a Bioguide 

lookup table, a computer can tell when data 

refers to Mike Rogers from Michigan and 

when it refers to Mike Rogers from Alabama. 

It will never mistake these Rogerses for any 

other Mike Rogers, much less the famous architect or the Canadian telecommunications 

company. 

This is how the structuring of data gives 

it semantic meaning. ~lith broadly known 

and well-followed naming conventions like 

this, information about Mike Rogers and 

every other member of Congress can easily 

and quickly be collected and shared with 

their constituents and the public as a whole. 

This type of structure can be applied to 

all generic entities in a data system, allowing 

computers to observe the logical relationships among them and to tell relevant stories 

automatically. 'When data properly disambiguates representatives' names, their votes, 

and party afftliation, for example, computers 

can easily calculate party cohesion from one 

vote to another. If vote data includes the date, 

as it should, computers can quickly calculate 

party cohesion over time. If representatives' 

names and Bioguide IDs are correlated to 

states (as they are), computers can automatically calculate state and regional cohesion in 

voting. Each addition of data expands the 

range of stories the data can telL 

There are just a few small illustrations of 

the literally thousands of different stories 

that computers might generate automati~ 

cally from disambiguated or normalized 

data. There are dozens of different entities involved in legislative processes, dozens 
46 


Insert offset folio 37 here 80143.037

more in budgeting and appropriations, dozens more in regulatOry processes, litigation, 

and so on. There are many overlaps among 

the entities involved in each of these, and re~ 

lationships among them as well. For transparency to flourish, all these entities must be 

described in data with logical coherence.4o 

Formatted Data 

When data is published in machinewreadable ways, its meanings can come to life, and 

it can be the foundation of truly transparent government. The ways this can be done 

have many layers of complexity, but they 

are worth understanding in general. Most 

people are familiar with formats, the agreedupon arrangemenrs, protocols, and languages used to collect, store, and transmit data. 

From the moment information is captured 

digitally-when a word is typed on a computer keyboard or a camera and microphone record a speech-it is arranged and rearranged 

through various formats that convert it to 

binary data (ones and zeroes, or on/off, up/ 

down). This binary data can later be converted back into letters and words, symbols, and 

the combinations of sounds and images that 

comprise audio and video. 

Just as there are formats for collecting, 

storing, and transmitting data) there are 

formats for organizing data in ways that op~ 

timize it for human consumption. Some of 

the most familiar and easiest to understand 

are in the area of typesetting and display. 

If an author means to emphasize a certain 

point, and makes a word or phrase display as 

boldface text to do that) her word processing 

software will record that display preference. 

(,(Only fourteen people in Peoria drive a 

Fiat Spider!") Later copies of the document 

should retain signals that make her chosen 

words appear in bold. When the text is con~ 

verted to the format suitable for the World 

Wide Web-hypertext matkup language, at 

HTML-the signal that the word "fourteen" 

should be displayed bold looks like this: 

Only <b>fourteen< Ib> people 

in Peoria drive a Fiat Spider! 

11 

When a browser like Internet Explorer 

or Firefox sees the signals <b> and </b>, it 

displays the material between the "start" 

and "end" signals as bold. A human looking 

at the resulting text knows that the author 

wanted to convey the importance of the 

word "fourteen." 

This is a very rudimentary example, and 

it deals only with display and ptinting. The 

same technigue could be used for highlight~ 

ing semantic information in a machinereadable way. For example, the words "Fiat 

Spider" could be surrounded by signals that 

indicate a discussion about automobiles: 

Only <b>fourteen</b> people in 

Peoria drive a <car make="Fiat" 

model="Spider">Fiat Spider 

<lear>! 

This uses the same kind of signaling to 

allow a properly programmed computer to 

recognize that this is a discussion of cars, 

specifically, a mention of the Fiat Spider. 

With the right signals in place, a computer 

will recognize that the word "Fiat" refers to a 

car, not some authoritative decree, and that 

"Spider" is a type of Fiat car, not a creepy 

bug with eight long legs. 

With this semantic information embedded in the text) not only can a human look at 

the text and appreciate the very small number of people driving a Fiat Spider in Peoria, 

but people interested in the Fiat Spider car 

can use computers and search engines to 

find this text knowing for certain it is about 

the car and not the bug. If the text signals 

which Peoria it refers to-the one in Illinois 

or the one in Arizona-people interested in 

one or the other dty could learn more infor~ 

mation more quickly as wel1. The difference 

matters: fourteen drivers of the Fiat Spider 

in Peoria, Illinois, is indeed a low number. 

Fourteen drivers of that one car in tiny Peoria, Arizona, is a lot. 

There are many ways of putting signals 

into documents~and not only text documents, but also audio and video files-to 

make them more informative. There is alw 

When data is 

published in 

machinereadable ways, 

its meanings 

can come to life, 

and it can be the 

foundation of 

truly transparent 

government. 
47 


Insert offset folio 38 here 80143.038

Machinereadability, 

machinediscoverability, 

availability, and 

authoritative 

sourcing 

can produce 

tremendous 

advances in 

government 

transparency. 

most no end to what can be done with this 

kind of signaling in webpages or in other 

documents and data. HTML is a format that 

it is well knmvn and followed by most Web 

publishers and browsers across the globe, 

which is one of the things that makes the 

Web so powerful and important. Nobody 

ever has to ask for a more transparent \XTeb 

page; the use of a widely recognized format 

takes care of that problem. 

Metadata 

The term of art for this kind of signaling, 

done by embedding information in docu~ 

ments or dat~ is metadata. Metadata is a 

sort of «who, what, when, and where" that 

is one step removed from the principal data 

being collected and presenred. It helps a user 

of the data understand its meanings and irn~ 

portance. 

Here's a familiar example of metadata: 

lots of peoples' photographs and home videos from the 80s and 90s have a date stamp 

in the picture, because cameras could be 

programmed to insert this information into 

the image (or perhaps it was hard to keep the 

date stamp out ... ). That metadata allows 

someone looking at the image later to know 

when rhe picture or video was shot. Thus, 

parents can know the ages of their children 

in photos, which vacation trip the image is 

from, and so on. Metadata helps make data 

more complete and usefuL 

Metadata can create powerful efficien~ 

cies. Say a group of cattle ranchers wants to 

manage their herds in concert, but maintain 

separate ownership. They can save money 

and expense if they all use the same pens 

and fields, feed their animals together, and 

so on. Before they move their herds together, 

they might attach to the ears of each of their 

cattle a distinctive tag to indicate who is the 

owner. Then, when the time comes to divide 

up their herds, this can easily be done. 

They can do much more this same way, 

though. If juvenile animals require different 

feed than the mature ones, a tag indicating 

the age of each animal might allow them to 

be sorted appropriately at feeding time. An12 

other tag might indicate what inoculations 

each animal has gotten so that disease management of the herd is streamlined. Each of 

the many "use cases" for managing a herd 

can be facilitated by metadata that is physically attached to each animal via the ear tag. 

The use cases for government data, and 

thus the meradata needed in government 

data, are many. Some people will want to 

see how bills affect existing laws, existing 

programs, or agencies. Each of these things 

can be highlighted in documents and dis~ 

cussions so tha.t they are easily found. Some 

people will want to follow appropriations 

and spending, so metadata for dollar proposals and dollar~oriented discussions are 

worthwhile. Other people will want to know 

what regions, states, localities, parks, buildings, or installations are the subject of documents and debate. And the corporations, 

associations, and people who take part in 

public policy processes are of keen interest. 

All these things-and more-should be in the 

metadata of government-published information, and the data should be structured 

so that rich troves of meaningful informa~ 

tion are readily apparent in both documents 

and data. This will make the relevance of 

documents and information immediately 

apparent to various interests using computers to scan the information environment. 

This is machine~readability) and it is the 

publication practice that will bring government transparency to fruition. 

Machine-readability, machine-discoverability, availability, and authoritative sourcing 

can produce tremendous advances in gov~ 

ernment transparency. Well-published data 

about governments' deliberations, management, and results will inform people better 

and empmver them to do a better job of overseeing their governments. 

Conclusion 

Government transparency is a widely 

agreed-upon value, but it is agreed upon as 

a means toward various ends. Libertarians 
48 


Insert offset folio 39 here 80143.039

and conservatives suppOrt transparencY because of their belief that it will expose waste 

and bloat in government. If the public understands the workings and failings of government better, the demand for government 

solutions will fall and democracy will produce more libertarian outcomes, American 

liberals and progressives support transparency because they believe it will validate and 

strengthen government programs, Transparency will roOt out corruption and produce better outcomes, winning the public's 

affection and support for government, 

Though the goals may differ, pan-ideological agreement on transparency can remain, 

Libertarians should not prefer large government programs that are failing, If transparency makes government work better, that is 

preferable to government working poorly, If 

the libertarian vision prevails, on the other 

hand, and transparency produces demand 

for less government and greater private authority, rhat will be a result of democratic 

decisionmaking that all should tespect and 

honor. 

The publication practices described hereauthoritative sourcing, availability, machinediscoverability, and machine-readability-can 

help make government more transparent. 

Governments should publish data about 

their deliberations, management, and results 

folIou..':ing these good data practices. 

But transparency is not an automatic or 

instant result of following these good practices, and it is not just the form and formats 

of data. It turns on the capacity of the society 

to interact with the data and make use of it. 

American society will take some time to make 

use of more transparent data once better 

practices are in place. There are already thriving communities of researchers, journalists, 

and software developers using unofficial repositories of government data. If they can do 

good work with incomplete and imperfect 

data, they will do even better work with rich, 

complete data issued promptly by authoritative sources. \Vhen fully transparent data 

comes online, though, researchers urill have 

to learn about these data sources and begin 

13 

using them. Government transparency and 

advocacy \vebsites will have to do the same. 

Government entities themselves will discover 

new ways to coordinate and organize based 

on good data-publication practices. Report~ 

ers will learn new sources and new habits. 

By putting out data that is "liquid" and 

"pure," governments can meet their responsibility to be transparent, and they can foster this evolution toward a body politic that 

better consumes data. Transparency is likely 

to produce a virtuous cycle in which public 

oversight of government is easier, in which 

the public has better access to factual information, in which people have less need to 

rely on ideology, and in which artifice and 

spin have less effectiveness. The use of good 

data in some areas will draw demands for 

more good data in other areas, and many elements of governance and public debate will 

improve. 

Both government and civil society have 

obligations to fulfill if government trans M 

parency is to be a reality. By publishing data 

optimized for transparency, governments 

can put the ball back into the court of the 

transparency advocates. 

Notes 

1. Barack Obama, "The Change We Need in 

Washington" (speech, Green Bay, WI, September 22, 2008), hrrp://www.youtube.com/watch 

~o5t8GdxFYBU. 

2. John Boehner Introduces the House GOP 

Congressional Transparency Initiative, http:// 

\V\VW,youtube.com/watch?v"'hDr70qRv_9k. 

3. Barack Obama, "Memorandum for the 

Heads of Executive Departments and Agencies" 

January 21, 2009, http://www.whitehouse.gov/ 

the_press_office/Transparency _and_ Open_ Gov 

ernmentj. 

4, Peter R. Orszag, "Memorandum for the 

Heads of Executive Departments and Agencies, 

Subject: Open Government Directive/' MlO-06, 

December 8, 2009, http://www,whitehouse.gov/ 

open/documents/open-government-directive. 

5. The White House, "Open Government Initiative," http;//www.whitehouse.gov/open. 

Transparency 

turns on the 

capacity of the 

society to interact 

with data and 

make use of it. 
49 


Insert offset folio 40 here 80143.040

6. The \Vhite House, "Open Government Initiative Blag," hnp://v"\"\l\v,whitehouse.gov/open/ 

blog. 

7. Data.gov, http://W\v·w.data.govj. 

8. John WonderIich, "House Rules Transparency Victory," The Sunlight Foundation Blog, December 

22, 2010, http://sunlightfoundation.comjblog! 

Z010j12j22jhouse-rules~transparency-victory;' 

9. John Boehner, "Keeping the Pledge: New 

Majority to Make Legislative Data More Open, 

Accessible," John Boehner (blog), April 29, 2011, 

http://www.johnboehner.house.gov/Blogj?post 

id"23B790. 

10. Orszag. 

11. Jim Harper, "Grading Agencies' High-Value 

Datasets," Cato(JPLiberty (blog), February 5, 2010, 

http://'W'WW.cato-at-liberty.orgigrading-agencieshigh-value-data~sets!. 

12. Caw Institute, "Just Give Us the Data! Prospects for Putting Government Information to 

Revolutionary New Uses)" Policy Forum, De~ 

cember 10) 2008, http://www.cato.orgjevent.php 

?eventid"'5475. 

13. "8 Principles of Open Government Dat~" 

December 8, 2007, http://W'WW.opengovdata.orgi 

home/Bprinciples [hereinafter "Open Govem~ 

mem Principles"]' 

14. "Ten Principles for Opening Up Government Information," August 11, 2011, http://sun 

lightfoundation,com/policyjdocuments/tenopen~data-principles/· 

15, Open House Project, "Congressional fnformation & the Internet: A Collaborative Examina~ 

tion of the House of Representatives and Internet 

Technology," May 8, 2007, http://WW\v.theopen 

houseproject.com/thc-open-house-project-re 

port/. 

16. A catalog of many such documents can be 

found on Open Government Data's website, at 

http:j /"www,opengovdata,orglhome/reading~list. 

17. The second Open Government Data Prin~ 

ciple called for data "published as collected at the 

source, with the finest possible level of granular~ 

ity, not in aggregate or modified forms." Open 

Government Principles. 

18. Government Printing Office, FDsys, http:// 

www.gpo.gov/fdsys;' 

19. Library of Congress, THOMAS, hrtp://thom 

as.1oc.gov/homejthomas,php. 

14 

20. Govtrackus, hrtp://\\v,v,'.govtrackus;' 

21. The third Open Government Data Principle 

is making data "available as quickly as necessary 

to preserve the value of the data:' 

22. Author's correspondence, on file. 

23. The Open Government Data Principles document caned for a contact person "designated to 

respond to people trying to use the data." 

24. The fourth Open Government Data Principle called for accessibility, defined as "available 

to the vlidest range of users for the widest range 

of purposes." 

Z5. This "nearly implicit" principle is featured 

by Josh Tauberer in his paper, "Open Data is Civic Capital: Best Practices for 'Open Government 

Data,'" January 29, 2011, http://razoLoccams. 

info/pubdocs/opendataciviccapitaLhtml. 

26. The first of the Open Government Dara 

Principles was that data should be "complete." 

The Association for Computing Machinery recommends: "Citizens should be able to download 

complete datasets of regulatory, legislative or 

other information, or appropriately chosen sub~ 

sets of that infonnation, when it is published by 

government." Association for Computing Ma~ 

chinery, "ACM u.s. Public Policy Committee (US~ 

ACM) Recommendations on Open Government," 

http://v.'WW.acm.org/public~policy / open~govern 

ment, 

27. Tauberer. 

2B, Open Government Data Principles six, sev~ 

en, and eight address availability. Access must be 

"non~discriminatory" (available to anyone, with 

no requirement of registrarion) (principle 6); non~ 

proprietary (principle 7); and license-free (prin~ 

cipIeB). 

29. There may be some justified restrictions on 

availability. Repeated bulk downloads are a fonn 

of attack on a data system meant to disabJe it or 

render it costly to maintain, for example. This 

form of attack justifies a gating mechanism on 

downloads that is entirely reasonable if applied 

neutrally and carefully. 

30. See Wikipedia, "Hypertext Transfer Protocol," 

http://en.wikipcdia.orgjwiki/HypertexcTrans 

fer_ProtocoL 

31. See Wikipedia, "HTML," hrtp://en.wikiped 

ia.orgjwiki/HTML. 

32. Jim Harper, "Sunlight Before Signing; Turn~ 

ingtheComer!"Cato@Liberty(blog),DecemberI8, 
50 


Insert offset folio 41 here 80143.041

2009, http://w\,,7\v.cato-at-liberty.org!sunlight-be 

fore~signing-turning-the-comer/· 

33. Washington\t'atch.com, "Earmarks 20lL 

39,000+ and $130 Billion," WashingtonWatch.com 

(blog), December 7, 2010), http://vlw'\v.washing 

tonwatch.comjblog/20 1 0/12/071 earmatks-20 11 

-39000-and-130~billion/. Washington WaEch,com 

is a transparency website run by the author and is 

unaffiliated with the Cato Institute. 

34. SeeWikipedia, "Internet Media Type," http:// 

en."\vikipedia.orglwiki/lnternecmedia_type. 

35. Federal Election Commission, "Electroni~ 

cally Filed Reports and Statements," http://www. 

fec.gov/financejdisdosure/ftpetile.shtmL 

36. The fifth Open Government Data Principle 

15 

called for machine processability, in which "Data 

are reasonably structured to allow automated 

processing o[it." 

37. Tauberer. 

38. Association for Computing Machinery. 

39. "Biographical Directory of the United States 

Congress: 1774-present," http://bioguide.con 

gress.govJbiosearch/biosearch.asp. 

40. Tauberer notes: "To the extent two data sets 

refer to the same kinds of things, the crearars of 

the dara sets should strive to make them interoperable. This may mean developing a shared data 

standard, or adopting an existing standard, pos~ 

sibly through coordination within government 

across agencies." 
51 


Insert offset folio 42 here 80143.042

Appendix II 

Grading the Government's Data Publication Practices 
52 


Insert offset folio 43 here 80143.043

Grading the Government's 

Data Publication Practices 

by Jim Harper 

Executive Summary 

Barack Obama promised transparency and 

open government when he campaigned for 

president in 2008, and he took office aiming to 

deliver it. Today, the federal government is not 

transparent, and government transparency has 

not improved materially since the beginning of 

President Obama's administration, This is not 

due to lack of interest or effort, though. Along 

with meeting political forces greater than his 

promises, the Obama transparency tailspin was 

a product of failure to apprehend what trans~ 

parency is and how it is produced. 

A variety of good data publication practices 

can help produce government transparency: authoritative sourcing, availability, machine-discoverabiliry, and machine-readability. The Cato 

Institute has modeled what data the govern~ 

ment should publish in the areas of legislative 

process and budgeting, spending, and appropriating. The administration and the Congress 

both receive fairly low marks under systematic 

examination of their data publication practices. 

Between the Obama administration and 

House Republicans, the former) starting from 

a low transparency baseline, made extravagant 

promises and put significant effort into the 

project of government transparency. It has not 

been a success. House Republicans, who manage a far smaller segment of the government, 

started from a higher transparency baseline, 

made modest promises, and have taken limited 

steps to execute on those promises. President 

Obama lags behind House Republicans, but 

both have a long way to go. 

Jim Harper is directorofinfortnation policy studies atthe Cato Institute and the webmaster ofW ashington Watch. com, 
53 


Insert offset folio 44 here 80143.044

There was no 

lack of effort or 

creativity around 

data transparency 

at the outset 

oftheObama 

Administration. 

Introduction 

As a campaigner in 2008, President 

Obama promised voters hope, change, and 

transparency.l Within minutes of his taking office on January 20, 2009, in fact, the 

Whitehouse.gov website declared: "President Obama has committed to making his 

administration the most open and transparent in history.,,2 His first presidential memorandum, issued the next day, was entitled 

"Transparency and Open Government." It 

declared: 

My Administration is committed to 

creating an unprecedented level of 

openness in Government. We will 

work together to ensure the public 

trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen 

our democracy and promote efficiency 

and effectiveness in Government.3 

The road to government transparency is 

long. Nearly four years later, few would argue that American democracy has materially strengthened, or that the government is 

any more effective and efficient, due to forward strides in transparency and openness. 

Indeed, the administration has come under 

fire recently-as every administration does, 

it seems-for significant transparency failings. 

Freedom of Information Act (FOIA) 

policy is an example. In its early days, the 

Obama administration committed to improving the government's FOIA practices. In 

March 2009 Arromey General Eric Holdet 

issued a widely lauded memorandum ordering improvements in FOIA compliance.4 But 

this September, Bloomberg news reported 

on its test of the Obama Administration's 

commitment to transparency under FOIA. 

Bloomberg found that 19 of20 cabinet-level 

agencies disobeyed the public disclosure law 

when it asked for information about the cost 

of agency leaders' travel. Just 8 of 57 federal 

agencies met Bloomberg's request for docu2 

mentS within tbe 20-day disclosure \vindow 

required by the act.5 

President Obama's campaign promise 

to post laws to the \Vhite House website 

for five days of public comment before he 

signed them went virtually ignored by the 

White House in the first year of his administration. Only recently has he reached 1:\\'0-

tbirds compliance with the "Sunlight Before 

Signing" promise, and this is because of the 

multitude of bills Congress passes to rename 

post offices and such. More important bills 

are often given less than the promised five 

days'sunlight6 

There was no lack of effort or creativity 

around data transparency at the outset of 

the Obama Administration. In May 2009 

\Vhite House officials announced on the 

new Open Government Initiative blog that 

they would elicit the public's input into the 

formulation of its transparency policies. In 

a meta-transparency flourish, tbe public 

was invited to join in with the brainstorming, discussion, and drafting of the government's policies? 

The conspicuously transparent, participatory, and collaborative process contributed 

something, evidently, to an "Open Government Directive," issued in December 2009 

by Office of Management and Budget head 

Peter Orszag.8 Its clear focus was to give the 

public access to data. The directive ordered 

agencies to publish within 45 days at least 

three previously unavailable "high-value 

data sets)) online in an open format and to 

register them with the federal government's 

data portal, Data.gov. Each agency was to 

create an "Open Government Webpage" as 

a gateway to agency activities related to the 

Open Government Directive. 

Many, many of President Obama's transparency promises went by the wayside. His 

guarantee that health care legislation would 

be negotiated "around a big table" and televised on C-SPAN was quite nearly the opposite of what occurred.9 People are free to 

obsenre whether it is political immaturity, 

idealism, or dishonesty that prompted transparency promises of this kind. Whatever the 
54 


Insert offset folio 45 here 80143.045

case, history may show that the "high-value 

data set" challenge was \vhere the Obama 

Administration's data transparency effort 

began its tailspin. 

Celebrated though it is, transparency is 

not a \\-'ell-defined concept, and the administration's most concerted effort to deliver it 

missed the mark The reason is that the definition of "high-value data set" it adopted 

was hopelessly vague: 

High-value information is information that can be used to increase 

agency accountability and responsiveness; improve public knowledge of 

the agency and its operations; further 

the core mission of the agency; create economic opportunity; or respond 

to need and demand as identified 

through public consultation. 

Essentially anything agencies wanted to 

publish they could publish claiming "high 

value" for it. 

Agencies "adopted a passive-aggressive 

attitude" toward the Data.gov effort, according to political scientist A10n PeledlO They 

technically complied with the requirements 

of the Open Government Memorandum, 

but did not select data that the public valued. 

The Open Government Directive allowed agencies to exploit a subtle "shift 

in vocabulary" in the area of open government. They diverted the project away from 

the core government transparency that the 

public found so attractive about President 

Obama's campaign claims. {(The term (open 

government data' might refer to data that 

makes the government as a whole more 

open (that is, more publicly accountable)," 

write Harlan Yu and David Robinson, "or 

instead might refer to politically neutral 

public sector disclosures that are easy to 

reuse, even if they have nothing to do with 

public accountability."ll 

The Agriculrure department published 

data about the race, ethniciry, and gender 

of farm operators, for example, rather than 

about the funds it spent to collect that kind 

of information. An informal Cato Institute 

study examining agencies' "highwvalue" data 

feeds found, "almost uniformly, the agencies 

came up \\1.th interesting data-but (interesting' is in the eye of the beholder. And interesting data collected by an agency doesn't 

necessarily give the insight into government 

we were looking for."12 

Genuinely high-value data for purposes 

of government transparency \vould provide 

insight in three areas not found in many of 

the early Data.gov feeds. True high-value 

data would be about government entities' 

management, deliberations, or results. 13 

"Open data can be a powerful force for 

public accountability/) write Yu and Robinson, "It can make existing information easier 

to analyze, process, and combine than ever 

before, allowing a new level of public scrutiny.,,14 This is undoubtedly true, and Americans have experienced vastly increased access 

to information in so many walks of lifeshopping, news-gathering, and investments, 

to name just three. Data-starved public oversight of government appears sorely lacking 

in comparison. 

In September a new transparency-related 

international initiative took center stage for 

the administration, the Open Government 

Partnership (OGP).'5 This "multilateral initiative)) was created ((to promote transparency, fight corruption, strengthen accountabil~ 

ity, and empower citizens."16 Participatlng 

countries pledged "to undertake meaningful 

new steps as part of a concrete action plan, 

developed and implemented in close consultation with their citizens." The OGP website touts a panoply of meetings, plans, and 

social media outreach efforts, and a recent 

graphic displayed on the home page said in 

bold letters, "From Commitment to Action." 

Its authors probably have no sense of the 

irony in that declaration. Significant actions, 

after all, announce themselves. 

Nothing about the OGP is harmful, and it 

may produce genuine gains for openness in 

participating countries. However, it has not 

produced, and does not hold out, the fundamental change-data-oriented change-that 

Celebrated 

though it is, 

transparency 

is nota 

well-defined 

concept. 
55 


Insert offset folio 46 here 80143.046

The transparency 

problem is far 

from solved. 

was at the heart of President Obama's campaign promises. 

The Obama administration is not the 

only actor on the federal stage, of course. 

House Republicans made transparency 

promises of theif own in the course of theif 

campaign to retake control of the House of 

Representatives, which they did in 201I. 

"The lack of transparency in Congress 

has been a problem for generations, under 

majorities Republican and Democrat alike," 

said aspiring House speaker John Boehner 

(R-OH) in late 2009. "But with the advent of 

the Internet, it's time for this to change."l7 

Since 1995, the Library of Congress's 

THOMAS website has published information, sometimes in the form of useful data, 

about Congress and its activities. Upon taking control of the House for the first time in 

40 years, the Republican leadership of the 

104th Congress directed the Library of Congress to make federal legislative information 

freely available to the public. The offerings 

on the site now include bills, resolutions, 

activity in Congress, the Congressional Record, 

schedules, calendars, committee information, the president's nominations, and treaties.IS 

In an attempt to improve the availability of key information, at the beginning of 

the 112th Congress the House instituted a 

rule-not always complied with-that bills 

should be posted online for three calendar 

days before receiving a vote on the House 

800r.19 The House followed up by creating 

a site at data.house.gov where such bills are 

posted. In February 2012 the House Committee on Administration held a day-long 

conference on legislative data,2° evidence 

of continuing interest and of plans to move 

fonvard. And in September, the Library of 

Congress debuted beta.congress.gov, which 

is slated to be the repository for legislative 

data that ultimately replaces the THOMAS 

website,21 

Between the Obama administration and 

House Republicans) the former, starting 

from a low transparency baseline, made extravagant promises and put significant effort into the project of government transparency. It has not been a success. House 

Republicans, \vho manage a far smaller 

segment of the government, started from a 

higher transparency baseline, made modest 

promises, and have taken limited steps to execute those promises, 

The transparency problem is far from 

solved, of course. The information that the 

public v,rould use to increase their oversight 

and participation is still largely inaccessible. 

The Republican House may be ahead, but 

both the administration and Congress score 

poorly under systematic examination of 

their data publication practices, 

The Data that Would Make for 

Transparent Government 

It was not disinterest that caused the 

Obama administration transparency effort to 

fade, Arguably, it was the failure of the transparency community to ask clearly for what 

it wants: good data about the deliberations, 

management, and results of government entities and agencies. So in January 2011 the 

Cato Institute began working with a wide 

variety of groups and advisers to "model" 

governmental processes as data and then to 

prescribe how this data should be published. 

Data modeling is arcane stuff, but it is 

worth understanding here at the dawn of 

the Information Age. "Data" is collected 

abstract representations of things in the 

world. We use the number "3," for example, 

to reduce a quantity of things to an abstract, 

useful form-an item of data. Because clerks 

can use numbers to list the quantities of 

fruits and vegetables on hand, store managers can effectively carry out their purchasing, pricing, and seIling instead of spending 

all of their time checking for themselves 

how much of everything there is, Data 

makes everything in life a little easier and 

more efficient for everyone, 

Legislative and budgetary processes are 

not a grocery store's produce department, of 

course. They are complex activities involving 

many actors, organizations, and steps. The 

Cato Institute's modeling of these processes 
56 


Insert offset folio 47 here 80143.047

reduced everything to "entities," each hav~ 

ing various "properties." The entities and 

their properties describe the things in legislative and budgetary processes and the logi~ 

cal relationships among them, like members 

of Congress, the bills they introduce, hearings on the bills, amendments, votes, and so 

on. The "entity" and "property" terminology corresponds with usage in the world of 

data management, it is used to make coding 

ea..<;ier for people in that field, and it helps 

to resolve ambiguities in translating governmental processes into useful data. The modeling was restricted to formal parts of the 

processes, excluding, for example, the varied 

organizations that try to exert influence, informal communications among members 

of Congress, and so on. 

The project also loosely defined several 

"markup types," guides for how documents 

that come out of the legislative process 

should be structured and published to maximize their utility. The models and markup 

types are discussed in a pair of Cato@Liberty 

blog posts that also issued preliminary grades 

on the quality of data publication abOut the 

entities.22 The models and markup types for 

legislative data and budgeting/appropriations/spending data can be found in Appendixes A and B, respectively. 

Next, the project examined the publication methods that allow data to reach its 

highest and best usc. Four key data practices that suppOrt government transparency 

emerged. Documented in a Caro Institute 

Briefing Paper entitled "Publication Practices 

for Transparent Govemment,,,Z3 those practices are authoritative sourcing, availability, 

machine-discoverability, and machine-readability. 

Authoritative sourcing means producing 

data as near to its original source and time as 

possible, so that the public uniformly comes 

to rely on the best sources of data. The second transparent data practice, availability, 

entails consistency and confidence in data, 

including pennanence, completeness, and 

good updating practices. 

The third transparent data practice, 

machine-discoverability, occurs when information is arranged so that a computer can 

discover the data and follow linkages among 

it. Machine~discoverability exists when data 

is presented consistently with a host of customs about how data is identified and referenced, the naming of documents and files, 

the protocols for communicating data, and 

the organization of data within files. 

The fourth transparent data practice, 

machine-readability, is the heart of transparency because it allows the many meanings of data to be discovered. Machinereadable data is logically structured so that 

computers can automatically generate the 

myriad stories that the data has to tell and 

put it to the hundreds of llses the public 

would make of it in government oversight. 

A common and popular language for structuring and containing data is called XML, 

or eXtensible Markup Language, which 

is a relative of HTML (hypertext markup 

language), the language that underlies the 

World Wide Web. 

Beginning in September 2011 the project 

graded how well Congress and the administration publish data about the key entities 

in the processes they oversee. Congress is responsible for data pertaining to the legislative process, of course. The administration 

has the bulk of the responsibility for budgetrelated data (except for the congressional 

budgets and appropriations). These grades 

are available in a pair of Cato@Liberty blog 

posrs24 and in Appendixes C and D. 

With the experience of the past year, the 

project returned to grading in September 

2012. With input from staff at GovTrack. 

us, the National Priorities Project, OMB 

Watch, and the Sunlight Foundation (their 

endorsement of the grades not implied by 

their assistance), we assessed how well data 

is now published. The grades presented in 

Figures 1 and 2 are largely consistent with 

the prior year-little changed between the 

two grading periods-but there were some 

changes in grades in both directions due to 

improvements in publication, discovery of 

data sources by our panel of graders, and 

Four key data 

practices support 

government 

transparency: 

authoritative 

sourcing, 

availability, 

machinediscoverability, 

and machinereadability. 
57 


Insert offset folio 48 here 80143.048

Government 

transparency is 

a widely agreedupon value, 

sought after as 

a means toward 

various ends. 

heightened expectations. "Incompleres" 

given in the first year of grading became Fs 

in some ca.<;es and Ds in others. 

It is important to highlight that grades 

are a lagging indicator. Transparency is not 

just a product of good data publication, but 

also of the society's ability to digest and use 

information, Once data feeds are published, 

it takes a little while for the community of 

users to find them and make use of them. 

A new web site dedicated to congressional 

information, beta.congress.gov, will undoubtedly improve data transparency and 

the grades for data it publishes, assuming it 

lives up to expectations. 

Government transparency is a widely 

agreed-upon value, sought after as a means 

toward various ends. Libertarians and con~ 

servatives support transparency because 

of their belief that it will expose waste and 

bloat in government. If the public understands the workings and failings of government better, the demand for government 

solutions will fall and democracy will produce more libertarian outcomes. American 

liberals and progressives support transparency because they believe it will validate and 

strengthen government programs. Transparency will root out corruption and produce better outcomes, winning the publies 

affection and support for government. 

Though the goals may differ, pan-ideological agreement on transparency can remain. Libertarians should not prefer large 

government programs that are failing. If 

transparency makes government work better, that is preferable to government working poorly. If the libertarian vision prevails, on the other hand, and transparency 

produces demand for less government and 

greater private authority, that will be a result of democratic decisionmaking that liberals and progressives should respect and 

honor. 

With that, here are the major entities in 

the legislative process and in budgeting, appropriating, and spending; the grades that 

reflect the quality of the data published 

about them; and a discussion of both. 

Publication Practices for 

Transparent Government: 

Rating Congress 

House Membership: CSenate Membership: AIt would seem simple enough to publish 

data about who holds office in the House of 

Representatives and Senate, and it is. There 

are problems with the way the data is published, though, which the House and Senate 

could easily remedy. 

On the positive side-and this is not to 

be discounted-there is a thing called the 

"Biographical Directory of the United States 

Congress," a compendium of information 

about all present and former members of 

the U.S. Congress (as well as the Continental 

Congress), including delegates and resident 

commissioners. The "Bioguide" website at 

bioguide.congress.gov is a great resource for 

searching out historical information. 

But there is little sign that Bioguide is 

Congress's repository of record, and it is 

little known by users, giving it lower authority marks than it should have. Some look 

to the House and Senate websites and beta. 

congress.gov for information about federal 

representatives, splitting authority among 

websites, rather than one established and 

agreed upon resource. 

Bioguide scores highly on availabilitywe know of no problems with up-time or 

completeness (though it could use quicker 

updating when new members are elected). 

Bioguide is not structured for discoverability, though. Most people have not seen it, 

because search engines are not finding it. 

Bioguide does a good thing in terms of 

machine readability, though. It assigns a 

unique ID to each of the people in its database. This is the first, basic step in making 

data useful for computers, and the Bioguide ID should probably be the standard for 

machine identification of elected officials 

wherever they are referred to in data. Unfortunately, the biographical content in Bioguide is not machine-readable. 
58 


Insert offset folio 49 here 80143.049

Figure 1 

October 2012 

PUBLICATION PRACTICES FOR TRANSPARENT 

GOVERNMENT: RATING THE CONGRESS 

How well can the Internet access data about Congress' work? The Cato Institute rated bow well Congress publishes 

information in terms of autboritative sourcing, availability, machine-discoverability, and machine-readability. 

SUBJECT 

House 

Membership 

Committees and 

Subcommittees 

Meetings of House, 

Senate, and Committees 

Bills 

Amendments 

Motions 

Decisions and Votes 

Communications 

GRADE 

• c8+ 

"··-~~-t· 

(Inter- and Intra-Branch) l.da ! 

7 

cdCOMMENTS 

The Senate has taken the lead on making data 

about who represents Americans in Washington 

machinN·cailable. 

Organizing and centralizing committee information would create a lot of clarity with a minimum 

of effort. 

The House has improved its data about floor 

debates. The Senate is strong on commitce 

meetings. 

There is lots of work to do before transcripts and 

other meeting records can be called transparent. 

Amendments are hard to track in atry systematic 

way-and Congress has done little to make them 

trackable. 

If the public is going to have insight into the 

decisions Congress makes} the motions on which 

Congress acts should be published as data. 

I Vote information is in good shape) but voice votes 

and unanimous consents should be published as 

data. 

--I,! --,-

I Transparent access to the messages sent among. 

: the House, Senate, and executi,'€ branch would 1 complete the picture available to the public. 
59 


Insert offset folio 50 here 80143.050

Figure 2 

October 2012 

PUBLICATION PRACTICES FOR TRANSPARENT GOVERNMENT: 

BUDGETING, ApPROPRIATING, AND SPENDING 

How well can the Internet access data about the federal government's budgeting, appmpriating, and spending? 

11,e Cato Institute rated how well the gOFernment publishes information in terms of authoritatiue 

sourcing, availability, nuu:hine-discoventbility, and machine-readability. 

SUBJECT 

Agencies 

Bureaus 

Budget Authority 

Warrants, Apportionand Allocations 

Parties 

GRADE 

... J>-

dDiJ> 

8 

COMMENTS 

This grade is generous. There ,-eally should 

be a machine-readable federal government 

"organization chart. " 

The sub-units of agencies have the same problem. 

Program infonnation is obscure, incomplete, 

and unorganized. 

Legal authority to spend is hidden and 

unstructured. 

Spending authority is divided up in an 

opaque way. 
60 


Insert offset folio 51 here 80143.051

As noted above, the other ways of learning about House and Senate membership 

are ad hoc. The Government Printing Office 

has a "Guide to House and Senate Members" 

at http://memberguide.gpo,gov/ that duplicates information found else\,.,here. The 

House website presents a list of members 

along with district information, party affiliation, and so on, in HTML format (http:// 

\v\v\v.house.gov/representatives/), and beta. 

congress.gov does as well (hrrp:/ /bera,con 

gress.gov/membersj). Someone who wants 

a complete dataset must collect data from 

these sources using a computer program to 

scrape the data and through manual euration. The HTML presentations do not break 

out key information in ways useful for computers. The Senate membership page,2s on 

the other hand, includes a link to an XML 

representation that is machine readable, 

That is the reason why the Senate scores so 

well compared to the House. 

Much more information about our representatives flows to the public via representatives' individual websites. These are 

nonauthoritative websites that search engine spidering combines to use as a record of 

the Congress's membership, They are available and discoverable, again because of that 

prime house.gov and senate.gov real estate. 

But they only reveal data about the membership of Congress incidentally to communicating the press releases, photos, and 

announcements that representatives want to 

have online. 

It is a narrow point, but there should be 

one and only one authoritative, weI1~published source of information about House 

and Senate membership from which all 

others flow. The variety of sources that exist combine to give Congress pretty good 

grades on publishing information about 

who represents Americans in Washington, 

but improving in this area is a simple matter of coordinated House and Senate efforts, 

Committees and Subcommittees: CLike Americans' representation in Congress, lists of committees, their membership, 

and jurisdiction should be an easy lift. But it 

is not as easy as it should be to learn about 

the commit~ees to which Congress delegates 

much of its work and the subcommittees to 

which the work gets further distributed. 

The Senate has committee names and 

URLs prominently available on its main 

website.26 The House does, too, at http:// 

house,gov/committeesj. But neither page 

offers machine-readable information about 

committees and committee assignments. 

The Senate has a nice list of committee assignments, again, though, not machine~ 

readable. The House requires visitors to 

click through to each committee's web page 

to research what they do and who selVes on 

them. For that, you'd go to individual committee websites, each one different from 

the others. There is an authoritative list of 

House committees with unique identifi~ 

ers,27 but it's published as a PDF, and it is 

not clear that it is used elsewhere for referring to committees. 

Without a recognized place to go to get 

data about committees, this area suffers 

from lacking authority. To the extent there 

are data, availability is not a problem, but 

machine-discoverability suffers for having 

each committee publish distinctly, in formats like HTML, who their members are, 

who their leaders arc, and what their jurisdiction is, 

With the data scattered about this way, 

the Internet can't really see it, More prominence, including data such as subcommittees and jurisdiction, and use of a recog~ 

nized set of standard identifiers would take 

this resource a long way. 

Until committee data are centrally pub~ 

lished using standard identifiers (for both 

committees and their members), machinereadability will be very low. The Internet 

makes sense of congressional committees 

as best it can, but a whole lot of organizing 

and centralizing-vvith a definitive, alwayscurrent, and machine-readable record of 

committees, their memberships} and their 

jurisdictions-would create a lot of clarity in 

this area with a minimum of effort. 

There should be 

one and ouly one 

authoritative, 

well-published 

source of 

information 

about House 

and Senate 

membership. 
61 


Insert offset folio 52 here 80143.052

Can the public 

learn easily about 

what meetings 

are happening, 

where they are 

happening, 

when they are 

happening, and 

what they are 

about? It depends 

on which side 

of the Capitol 

you're on. 

Meetings of House, Senate, and 

Committees-House: B/Senate: B 

'When the House, the Senate, committees, 

and subcommittees have their meetings, the 

business of the people is being done. Can 

the public learn easily about what meetings 

are happening, where they are happening, 

when they are happening, and what they are 

about? It depends on which side of the Capitol you're on. 

The Senate is pretty good about publishing notices of committee meetings. From a 

\vebpage with meeting notices listed on le,28 

there is a link to an XML version of the data 

to automatically inform the public. 

If a particular issue is under consideration in a Senate committee meeting, this is 

a way for the public to learn about it. This 

is authoritative, it is available, it is machinediscoverable, and has some machine~readable features. That means any application, 

website, researcher, or reporter can quickly 

use these data to generate more-and more 

useful-information about Congress. 

The House does not have anything similar 

for committee meetings. To learn about those 

meetings, one has to scroll through page after page of committee announcements or 

calendars, Insiders subscribe to paid services. 

The House can catch up with the Senate in 

this area. 

Where the House excels and the Senate 

lags is in notice about what will be considered on the floor. The House made great 

strides with the institution of docs. house. 

gov, which displays legislation heading for 

the floor. This allows any visitor, and variOilS websites and services, to focus their 

attention on the nation's business for the 

week. 

Credit is due the House for establishing this resource and using it to inform the 

public using authoritative, available, and machine-discoverable and -readable data. This is 

an area where the Senate has the catching up 

to do. 

For different reasons, the House and Sen~ 

ate both garner Bs. Were they to copy the 

best of euh other, rhey would both have As. 

10 

Meeting Records: DThere is a lot of \vork to do before meet~ 

ing records can be called transparent. The 

Congressional Record is the authoritative record of what transpires on the House and 

Senate f1oors, but nothing similar reveals 

the content of committee meetings. Those 

meeting records are produced after much 

delay-sometimes an incredibly long delay-by the committees themselves. These 

records are obscure, and they are not being 

published in ways that make things easy for 

computers to find and comprehend. 

In addition, the Congressional Record 

doesn't have the machine~discoverable pub~ 

lication or machine~readable structure that 

it could and should. Giving unique, consistent IDs in the Record to members of Congress, to bills, and other regular subjects of 

this publication would go a long way to improving it. The same would improve transcripts of committee meetings. 

Another form of meeting record exists: videos. These have yet to be standardized, organized, and published in a reliable 

and uniform way, but the HouseLive site 

(http://houselive.govj) is a significant step 

in the right direction. It will be of greater 

use when it can integrate with other records of Congress. Real-time flagging of 

members and key subjects of debate in the 

video stream would be a great improve~ 

ment in transparency. Setting video and 

video meta-data standards for use by both 

Houses of Congress, by committees, and by 

subcommittees would improve things dramatically. 

House video is a bright spot in a very dark 

field, but both will shine brighter in time, 

\When the surrounding information environment has improved to educate the pub~ 

lie about goings~on in Congress in real time, 

the demand for and usefulness of video will 

increase. 

Committee Reports: C + 

Committee reports are important parts 

of the legislative process, documenting the 

findings and recommendations that com~ 
62 


Insert offset folio 53 here 80143.053

mittees report to the full House and Senate. 

They do see publication on the most authoritative resource for committee reports, 

the Library of Congress's THOMAS system. 

They are also published by rhe Governmenr 

Prinring Office." The GPO's Federal DigitaJ System (FDsys) is relatively new and is 

meant to improve systematic access to government documents, but it has not become 

recognized as an authoritative source for 

many of those documents. 

Because of the sources through which 

they are published, committee reports are 

somewhat machine~discoverable, but \vithout good semantic information embedded 

in them, committee reports are barely visible 

to the Internet. 

Rather than publication in HTML and 

PDF, committee reporrs should be published fully marked up with the array of 

signals that reveal what bills, statutes, and 

agencies they deal with, as well as authorizations and appropriations, so that the Internet can discover and make use of these 

documents. 

Bills: BBills are a "pretry-good~news" story in 

legislative transparency. Most are promptly 

published. It would be better, of course, if 

they were all immediately published at the 

moment they were introduced, and if both 

the House and Senare published last-minute, omnibus bills before debating and voting on them. 

A small gap in authority exists around 

bills. Some people look to the Library of 

Congress and the THOMAS site, and now 

beta,congress.gov, for bill information. Others look to the Government Printing Office. 

Which is the authority for bill content? This 

issue has not caused many problems so far. 

Once published, bill information remains 

available, which is good. 

Publication of bills in HTML on the 

THOMAS site makes them teasonably machine-discoverable, Witness the fact that 

searching for a bill will often tum up the 

version at that source, 

11 

\X'here bills could improve some is in 

their machine~rcadability, Some informa~ 

tion such as sponsorship and U.S. code references is present in the bills that are published in XML, and neatly all bills are now 

published in XML, which is gteat. Much 

more information should be published 

machine-readably in bills, though, such 

as references to agencies and programs, to 

states or localities, to authorizations and 

appropriations, and so on, referred to using 

standard identifiers. 

With the work that the THOMAS system 

does to gather information in one place, bill 

data arc good. This is relative to other, lesswell-published data, though. Thete is yet 

room for improvement. 

Amendments: F 

Amendments are not the good-news story that bills are. They are "barely available," 

says Eric Mill of the Sunlight Foundation. 

"Given that amendments (especially in the 

Senate) can be as large and impottant as 

original legislation, this is an egregious over~ 

sight." 

With a few exceptions, amendments ate 

hard to track in any systematic way. 'X'hen 

bills come to the House and Senate floors, 

amendment text is often available, but 

amendments are often plopped somewhere 

in the middle of the Congressional Record 

without any reliable, understood, machine~ 

readable connection to the underlying legislation, It is very hard to see how amendments affect the bills they would change. 

In committees, the story is quite a bit 

worse, Committee amendments are almost 

completely opaque. There is almost no publication of amendments at all-certainly not 

amendments that have been withdrawn or 

defeated. Some major revisions in process 

are due if committee amendments are going 

to see the light of day as they should. 

Motions:F 

When the House) the Senate, or a committee is going to take some kind of action, 

it does so on the basis of a motion. If the 

Bills are a 

"pretty-goodnews" story 

in legislative 

transparency. 
63 


Insert offset folio 54 here 80143.054

Voting puts 

members of 

Congress on 

record about 

where they stand. 

And happily, vote 

information is 

in pretty good 

shape. 

public is going to have insight into the deci~ 

sions Congress makes) it should have access 

to the motions on which Congress acts. 

But motions are something of a black 

hole. :Many of them can be found in the Congressional Record, but it takes a human who 

understands legislative procedure and who 

is willing to read the Congressional Record to 

find them. That is not modern transparency. 

Motions can be articulated as data. There 

are distinct types of motions. Congress can 

publish which meeting a motion occurs in, 

when the motion occurs, what the proposition is, what the object of the motion is, and 

so on. Along with decisions, motions are key 

elements of the legislative process. They can 

and should be published as data. 

Decisions and Votes: B+ 

When a motion is pending, a body such 

as the House, the Senate, or a committee will 

make a decision on it, only sometimes using 

votes. These decisions are crucial moments 

in the legislative process, which should be 

published as data. Like motions, many decisions are not yet published usefully. Decisions made without a vote in the House or 

Senate are published in text form as part 

of the Congressional Record, but they are not 

published as data, so they remain opaque 

to the Internet. Many, many decisions come 

in the fonn of voice votes, unanimous consents, and so on. 

Voting puts members of Congress on record about where they stand. And happily, 

vote information is in pretty good shape. 

Each chamber publishes data about votes, 

meaning authority is well handled. Vote data 

are available and timely. 

Both the House30 and Senate3l produce 

vote information. The latter also publishes 

roll call tables in XML, which is useful for 

computer-aided oversight. Overall, voting 

data are pretty well handled. But the omission of voice votes and unanimous consents 

drags the grade down and will drag it down 

further as the quality of data publication in 

other areas rises. 

12 

Conununications (Inter- and IntraBranch): F 

The Constitution requires each house of 

Congress to "keep a Journal of its Proceedings) and from time to time publish the same." 

The basic steps in the legislative process (discussed elsewhere) go into the journals of the 

House and Senate, along ·with communications among governmental bodies. 

These messages, sent among the House, 

Senate, and Executive Branch) are essential 

parts of the legislative process, but they do 

not see publication. Putting these communications online-including unique identifiers, the sending and receiving body, any 

meeting that produced the communication, 

the text of the communication, and key subjects such as bills-would complete the picture that is available to the public. 

Publication Practices for 

Transparent Government: 

Budgeting, Appropriations, 

and Spending 

Agencies: DFederal agencies are the "agents" of Congress and the president. They carry out federal policy and spending decisions. Accordingly, one of the building blocks of data about 

spending is going to be a definitive list of the 

organizational units that do the spending. 

Is there such a list? Yes. It's Appendix C 

of OMB Circular A-ll, entitled: "Listing of 

OMB Agency/Bureau and Tteasuty Codes." 

This is a poorly organized PDF document 

that is found on the Office of Management 

and Budgetwebsite.32 

Poorly organized PDFs are not good 

transparency. Believe it or not, there is still 

no federal government "organization chart" 

that is published in a way amenable to computer processing. 

There are almost certainly sets of distinct 

identifiers for agencies that both the Treasury department and the Office of Management and Budget use. With modifications, 
64 


Insert offset folio 55 here 80143.055

either of these could be published as the 

executive branch's definitive list of its agencies. But nobody has done that. Nobody 

seems yet to have thought of publishing 

data about the basic units of the executive 

branch online in a machine-discoverable 

and machine-readable format. 

In our preliminary grading, we gave this 

category an "incomplete" rather than an F. 

That was «beyond generous," according to 

Becky Sweger of the National Priorities Project. We expect improvement in publication 

of this dara, and the grades will be low until 

we get it. 

Bureaus:DThe sub-units of agencies are bureaus, 

and the situation with agencies applies to 

data about the offices whete the work of 

agencies get divided up. Bureaus have identifiers. It's just that nobody publishes a list 

of bureaus, their parent agencies, and ather 

key information for the Internet-connected 

public to use in coordinating its oversight. 

Again, a prior "incomplete" in this area 

has converted to a D-, saved from being an 

F only by the fact that there is a list, however 

poorly organized and published, by the Office of Management and Budget. 

Programs:D 

It is damning with faint praise to call 

"programs" the brightest light on the organizational-data Christmas tree. The work of 

the government is parceled out for actual execution in programs. Like information about 

their parental units, the agencies and bureaus, data that identifies and distinguishes 

programs is not comprehensively published. 

Some information about programs is 

available in usable form. The Catalog of Federal Domestic Assistance website (www.cfda. 

gov) has useful aggregarion of some information on programs, but the canonical guide 

to government programs, along with the bureaus and agencies that run them, does not 

exist. 

Programs will be a little bit heavier a lift 

than agencies and bureaus-the number of 

13 

programs exceeds the number of bureaus 

by something like an order of magnitude, 

much as the number of bureaus exceeds the 

number of agencies. And it might be that 

some programs have more than one agency/ 

bureau parent. But today's powerful computers can keep track of these things-they 

can count pretty high. The government 

should figute out all the programs it has, 

keep that lisr up to date, and publish it for 

public consumption. 

Thanks to the CFDA, data publication 

about the federal government's programs 

gets a D. 

Projects: F 

Projects are where the rubber hits the 

road. These are the organizational vehicles 

the government uses to enter into contracts 

and create other obligations that deliver on 

government services. Some project information gets published, but the publication is so 

bad that we give this area a low grade indeed. 

Information about projects can be found. 

You can search for projects by name on 

USASpending.gov, and descriptions of projects appear in USASpendingfFAADS downloads, CFAADS" is the Federal Assistance 

Award Data System), but there is no canonical list of projects that we could find. There 

should be, and rhere should have been for a 

long time now. 

The generosity and patience we showed 

in earlier grading with respect to agencies, 

budgets, and programs has run out. There's 

more than nothing here, but projects, so essential to have complete information about, 

gets an F. 

Budget DocumentsCongress: D/White House: BThe president'S annual budget submission and the congressional budget resolutions are the planning documents that the 

president and Congress use to map the direction of government spending each year, 

These documents are published authoritatively, and they are consistently available, 

which is good. They are sometimes machineBelieve it or 

not, there is 

still no federal 

government 

" organization 

chart" 

published in a 

way amenable 

to computer 

processing. 
65 


Insert offset folio 56 here 80143.056

Ideally, there 

would be a nice, 

neat connection 

from budget 

authority right 

down to every 

outlay of funds. 

discoverable, but they are not terribly machine-readable. 

The appendices to the president's budget 

are published in XML format, which vastly 

reduces the time it takes to work with the 

data in them. That's really good. But the congressional budget resolutions -when they exist-have no similar organization) and there 

is low correspondence bct\veen the budget 

resolutions that Congress puts out and the 

budget the president puts out. You would 

think that a person-~or better yct, a comput~ 

er-should be able to lay these documents 

side by side for comparison, but nobody can. 

For its use ofXML, the White House gets 

a B-. Congress gets a D. 

Budget Authority: F 

"Budget authority" is a term of art for 

what probably should be called "spending 

authority." It's the power to spend money, 

created when Congress and the president 

pass a law containing such authority. 

Proposed budget authority is pretty darn 

opaque. The bills in Congress that contain 

budget authority ate consistently published 

online-that's good-but they don't highlight budget authority in machine-teadable 

ways. No computer can figure out how 

much budget authority is out there in pending legislation. 

Existing budget authority is pretty well 

documented in the Treasury Department's 

FAST book (Federal Account Symbols and 

Titles). This handy resource lists Treasury 

accounts and the statutes and laws that provide their budget authority. The FAST book 

is not terrible, but the only form we've found 

it in is PDF. PDF is tetrible. And nobody 

among our graders uses the FAST book. 

Congress can do a lot better, by highlighting budget authority in bills in a machine-readable way. The administration can 

do much, much better than publishing the 

obscure FAST book in PDF. 

Ideal1y, there would be a nice, neat connection ftom budget authority right down 

to every outlay of funds, and back up again 

from every outlay to its budget authority. 

14 

These connections, published online in useful ways, would allow public oversight to 

blossom. But the seeds have yet to be planted. 

Warrants, Apportionments, and 

Allocations: F 

After Congress and the president create 

budget authority, that authority gets divvied 

up to different agencies, bureaus, programs, 

and projects. How well documented are these 

processes? Not well. 

An appropriation warrant is an assignment of funds by the Treasury to a treasury 

account to serve a particular budget authority. It's the indication that there is money in 

an account for an agency to obligate and then 

spend. "OMB has a web portal that agencies used to send apportionment requests," 

notes the National Priorities Project's Becky 

Sweger, ('so the apportionment data are out 

there." 

Where is this warrant data? We can't find 

it. Given Treasury's thoroughness, it probably exists, but it's just not out there for public consumption. 

An apportionment is an instruction from 

the Office of Management and Budget to an 

agency about how much it may spend from 

a Treasury account in service of given budget authority in a given period of time. 

We haven't seen any data about this, and 

we're not sure that there is any. There should 

be. And we should get to see it. 

An allocation is a similar division of budget authority by an agency into programs or 

projects. We don't see any data on this either. And we should. 

These essential elements of government 

spending should be published for all to see. 

They are not published) garnering the executive branch an F. 

Obligations: BObligations are the commitments to 

spend money into which government agencies enter. Things like contracts to buy pens, 

hiring of people to ""nre with those pens, 

and much, much more. 
66 


Insert offset folio 57 here 80143.057

USASpending.gov has quickly become 

the authoritative source for this information, but it is nor the entire \~ew of spending, and the data is "dirty": inconsistent and 

unreliable. The use of proprietary DUNS 

numbers-the Data Universal Numbering 

System of the firm Dun & Bradstreet-also 

\veakens the availability of obligation data, 

There is some good data about obligations, but it is not clean, complete, and well 

documented. The ideal is to have one source 

of obligation data that includes every agency, bureau, program, and project. With a decent amount of data out there) though, usetill for experts, this category gets a B-. 

Parties: F 

~'hen the government spends taxpayer 

dollars, to what parties is it sending the 

money? 

Right now, reporting on parties is dominated by the DUNS number. It provides a 

unique identifier for each business entity 

and was developed by Dun & Bradstreet in 

the 19605. It's very nice to have a distinct 

identifier for every entity doing business 

with the government, but it is not very nice 

to have the numbering system be a proprietary one. 

"Parties" would grade well in terms of 

machine-readability, which is one of the 

most important measures of transparency, 

but because it scores so low on availability, 

its machine-readability is kind of moot. Until the government moves to an open identifier system for recipients of funds, it will get 

weak grades on publication of this essential 

data. 

Outlays: CFor a lot offolks, the big kahuna is knowing where the money goes: outlays. An outlay-literally, the laying out of funds-satisfies an obligation. It's the movement of 

money from the U.S. Treasury to the outside 

world. 

Outlay numbers are fairly well reported 

after the fact and in the aggregate. All one 

has to do is look at the appendices to the 

15 

president's budget to see how much money 

has been spent in the past. 

But outlay data can be much, much more 

detailed and timely than that. Each ouday 

goes to a particular party. Each outlay is 

done on a particular project or program at 

the behest of a particular bureau and agency. 

And each outlay occurs because of a particular budget authotity. Right now these details 

about outlays are nowhere to be found. 

"Surely the act of cutting a check doesn't 

sever all relationship bet\veen that amount 

of money and its corresponding obligation/ 

project/program," writes a frustrated Becky 

Sweger from the National Priorities Project. 

"Surely these relationships are intact somewhere and can be published." 

Plenty of people inside the government 

who are familiar with the movement of 

taxpayer money will be inclined to say, "it's 

more complicated than that,'! and it is! But 

it's going to have to get quite a bit less COffiM 

plicated before these processes can be called 

transparent. 

The time to de-complicate outlays is now. 

It's a feat of generosity to give this area a C-. 

That's simply because there is an authoritative source for aggregate past outlay data. 

As the grades in other areas come up) outlay 

data that stays the same could go down. Way 

down. 

Conclusion 

Many of the entities discussed here are 

low-hanging fruit if Congress and the administration want to advance transparency 

and their transparency grades. Authoritative, complete, and well-published lists of 

House and Senate membership, committees, and subcommittees are easy to produce 

and maintain, and much of the wotk has already been done. 

The same is true of agencies and bureaus, 

at least on the executive branch side. Presidentialleadership could produce an authoritative list of programs and projects within 

months. Establishing authoritative identiOutlay data can 

be much, much 

more detailed 

and timely. 
67 


Insert offset folio 58 here 80143.058

fiers for these basic units of government is 

like creating a language, a simple but important language computers can use to assist 

Americans in their oversight of the federal 

government. 

The more difficult tasks-amendments to 

16 

legislation, for example, and discretely identified budget authorities-will take some 

\vork. But such work can produce massive 

strides fonvard in accountable, efficient, 

responsive, and-in the libertarian yisionsmaller government. 
68 


Insert offset folio 59 here 80143.059

Notes 

1. An illustration of the focus on the topic, 

Polirifac[.com '$ "Obameter" lists 35 Obama campaign promises from 2008 related to transparency, 

http://www.politifact.com/truth-o-meter/prom 

isesjobamcterJsubjecrsJtransparencyj. 

2. Macon Phillips, "Change Has Come to 

\,\'hitehouse.gov)" The White House Blog,January 20, 

2009 (12:01 p.m. EDT), http://\\,"w.whitehouse. 

gov/bloglchange_has_comct0_whitehouse-gov. 

3. Barack Obama, "Transparency and Open 

Government," Presidential Memorandum aanu~ 

at)' 21, 2012), http://www.whitehouse.govjthepress-office/transparency-and-open-govemment. 

4. Eric Holder, "Memorandum for Heads of 

Executive Departments and Agencies: The Freedom of Information Act (FOIA)," Office of the 

Attorney General (March 192009), http://www. 

justice.gov/aglfoia-memo-march2009.pdf. 

5. Jim Snyder and Danielle Ivory, "Obama Cabinet Flunks Disclosure Test with 19 in 20 Ignoring Law," Bloomberg.com, September 28, 2012, 

http://www.bloomberg.com/news/20 12.09-28/ 

obama-cabinet-flunks-disclosure-test-with19~in-20-ignoring-Iaw.html. 

6. Jim Harper, "Sunlight before Signing: Measuring a Campaign Promise," Cato@Liberry 

(blog), Septembet 6, 2012, http://www.caw-atliberry.org/sunlight~before~signing-measuring-acampaign-promise/. 

7. Jesse Lee, "Transparency and Open Government," May 21, 2009, http://www,whitehouse. 

gov/blog/2009/05/21/ttansparency-and-opengovernment. 

8. Peter R Ors:tag, "Memorandum for the 

Heads of Executive Departments and Agencies, 

Subject: Open Government Directive," M 10-06, 

December 8,2009, http://whitehouse.gov/open/ 

documents/open-govemment~directive. 

9. "Negotiate Health Care Reform in Public 

Sessions Televised on C-SPAN," Politifacr.com, 

http://www.politifact.com/truth-o~meter/prom 

ises/obameter/promise/517/health-care-reformpublic-sessions-C-SPAN/. 

10. Alon Peled, '''When Transparency and Collaboration Collide; The USA Open Data Prowarn," Journal of the American Society for Informa~ 

tlO» Science and Technology 62, no. 11 (November 

2011): 2085. 

11. Harlan Yu and David G. Robinson, "The 

New Ambiguity of 'Open Government/" UCLA 

42 

Law Ret'jew 59, no. 6 (August 2012): 178. 

12. Jim Harper, "Grading Agencies' High-Value 

Data ?ets," Cato@Libel'l)' (blog) February 5, 2010, 

http://www.cato-at~liberry.org/grading~agencieshigh-value~data-setsf. 

13. Jim Harper, "Is Government Transparency 

Headed for a Detour?" Cato@Liberty(blog),January 15, 2010, http://'\\''W\\-·,cato-at~liberty.org/isgovcmment-transparency-headed~for-a-detour/· 

14. Yu and Robinson, p. 182. 

15. Open Government Parmership, http://v.'\.\w. 

opengovparmership,org/. 

16. Office of the Press Secretary, The W'hite 

House, "Pact Sheet: The Open Government 

Partnership," September 20, 2011, http://\.\'ww. 

whi tehouse. gOY /the-press-office/20 11/09/20/ 

fact-sheet~open-government-parmership. 

17. ''<John Boehner Introduces the House GOP 

Congressional Transparency Initiative," http:// 

www.youtube.com/watch?v=hDr70gRv_9k. 

18. Library of Congress, "About THOMAS," 

http://thomas.loc.gov jhomejabt_thom.htmL 

19. The text of the House rules package is avail* 

able at http://WW\v.rules,housc,gov/NewsjPRAr 

tide.aspx?NewsID"'33. 

20. Committee on House Administration, Legislative Data and Transparency Conference, http:// 

cha.house.govjabout/conract-us/legislative-da 

ta-conference. 

21. Andrew Weber, "Introducing Congress gov!" 

Custodia Legis: Law Librarians of Congress (blog) Septembet 19, 2012, hnp:/jblogs.loc.govjlaw/2012/ 

09/introducing"congress-gov/. 

22. See Jim Harper, "Congress on Transparency: 

'Needs Improvement,'" Cato@Liberty (blog), Septembet 23, 2011, http://www.caro·at-liberty.org/ 

congress*on-transparency~needs~improvementj; 

and Jim Harper, "Government Spending Trans~ 

parency: 'Needs Improvement' Is Understate~ 

ment," Cato@Liberty (blog), December 14, 2011, 

http://www.cato~at~liberty.org/governmentspending-transparency-%E2%80%98needs~im 

provement%E2%80%99-is~unders(atement/· 

23. Jim Harper, "Publication Practices for Transparent Government," Cam Institute Briefing Paper no. 121, September 23, 2011, http://www. 

cato.org/publicarions/briefing-paperjpublica 

tion~practices-transparent-government. 

24. See Jim Harper, "Congress on Transparency: 
69 


Insert offset folio 60 here 80143.060

'Needs Improvement"'; and Jim Harper, "Govelnmenr Spending Transparency: 'Needs Improve~ 

menc' Is Understatement." 

25. U.s. Senate, "Senators of the 112th Congress," http://\.\-''\v\v.senate.gov/gencral/contaccin 

formation/senators3 fin.cfm, 

26. U.S. Senate, "Committces," http://\V'\¥w.scn 

ate. gOY I p a gela yo uti co m mitre esl d_ th re e_ 

sections_with_teasers/committees_home.btm. 

27. U.s. House of Representatives, "Document 

NamingConventions," http://cha.house.gov/sires 

/republicans.cha.house.gov/files/documenrsl 

commitrec_docs/CommitteeReposirory-Nam 

ingConventions-vl-2-1.pdf. 

28. U.S. Senate, "Daily Digest Committee Meet43 

jngs/I-Iearings Schedule," http://v.'\\w.senate,gov/ 

pagelayout/committeesJb_threc_sections_\vith_ 

reascrs/committechearings,htm. 

29. US Government Printing Office, "Congressional Reports," http://w\vw.gpo.gov/fdsys/ 

browse/collection.action?collectionCode=CRPT. 

30. U.s. House of Representatives, Office of the 

Clerk, "Legislation and Reports," http://derk. 

house.govjlegislative/legvotes.aspx. 

31. U.S. Senate, "Recent Votes," http://\vww.sen 

ate.gov/pagelayout/legislative/a_threc_sections_ 

\vith_teasers/vores.htm. 

32. U.S. Office of Management and Budget, 

"Circular A-11," htrp://www.whitehouse.gov/om 

bl circulars_a 1 Ccurtencyear_al1_roc. 
70 

Chairman ISSA. We now go to the other partner in this, Sunlight, 

Mr. Schuman. 

STATEMENT OF DANIEL SCHUMAN 

Mr. SCHUMAN. Thank you, Mr. Chairman, Ranking Member 

Cummings, and distinguished members of the Oversight and Government Reform Committee. I appreciate the honor and the privilege of speaking with you here today. 

At the heart of transparency is the idea that the public has the 

right to know what Government is doing. In our modern times, as 

Jim has alluded to, this means online and real-time in a computerfriendly format. 

While the Obama administration has made significant rhetorical 

strides towards a 21st century vision of transparency and has 

launched several innovative transparency initiatives, Government 

must do more to address the fundamental challenge of being transparent. It is my intention today to encourage this committee to continue its good works, to adopt the Administration’s best initiatives, 

and to help encourage the Administration to meet its pledge to be 

the most transparent one ever. 

Let’s start with federal spending transparency. A Sunlight Foun- dation analysis called Clear Spending found $1.55 trillion in 

misreported federal grant spending. The numbers just don’t line 

up. This is the third year in a row we found a problem of this magnitude. We believe the Government should publicly track each federal dollar from the moment spending is proposed in the budget 

until it reaches its final destination. 

The Recovery Accountability and Transparency Board has shown 

us the way. How have they done so? By using unique identifiers 

to track who is spending, how much they are spending, and who 

gets the money; by demonstrating the necessity of an independent 

commission whose only job is fiscal transparency. As Angela mentioned, the importance of having independent commissions, independent bodies focused solely on transparency is something I cannot help but underscore. Finally, they have also released more information that allows data to be cross-checked. 

Now, the DATA Act will make all of this happen governmentwide, and I don’t need to tell this committee that it should be 

speedily enacted into law. 

What the DATA Act does for federal spending transparency, the 

access to Congressionally Mandated Reports Act does for oversight 

of agency policymaking. Reports to Congress are a means to find 

out what agencies are actually doing. These reports should all be 

online in one central place. 

We also believe that advisory committees shouldn’t be a stealthy 

way for special interests to influence the political process, and that 

sunlight should be shined on donors to presidential libraries who 

are snuggling up to future ex-presidents. It is time for Congress to 

pass the Federal Advisory Committee Act amendments and the 

Presidential Library Donation Reform Act. 

There are several Administration initiatives that the committee 

should encourage and enhance. The White House’s landmark Open 

Government Directive, which requires agencies to create and update open government plans, reduce FOIA backlogs, and release 

71 

new data sets has yielded mixed results. Some agencies are still 

trying to wait out this transparency fad. The OGD contains good 

ideas and, to make sure they are fully implemented, they should 

be codified. 

New federal transparency Web sites such as Data.gov, 

USASpending.gov, and the IT Spending Dashboard are already 

changing Government. They should be moved out from under the 

E–Gov Fund, which is intended for startups, and given a statutory 

basis and their own funding. For FOIA, we have seen smart initiatives like FOIA Online, proactive disclosure, and a presumption in 

favor of disclosure. These ideas should all be codified, along with 

the strengthening of the federal FOIA ombudsman and the incorporation of the Public Online Information Act, which ensures publicly 

available materials are online, and we applaud Chairman Issa and 

Ranking Member Cummings’ new released draft legislation. 

The executive branch needs some encouragement from Congress 

on the following three issues: the rules covering White House visitor logs should be strengthened, codified, and stripped of their 

loopholes; all of the Department of Justice’s Office of Legal Counsel 

opinions should be online, with only a few exceptions, not the twofifths that we found were missing. It shouldn’t require a 13-hour 

filibuster in the Senate to get an answer on one particular question. And the Office of Information and Regulatory Affairs at OMB 

isn’t living up to its obligation to fully disclose when and how it is 

being lobbied on major rulemakings. This has gone on long enough. 

More work is needed on money in politics. The Lobbying Disclosure Enhancement Act, for example, would make sure that our 

transparency regimes cover people who act like lobbyists, but who 

don’t meet the current law’s arbitrary definition. And, finally, Congressional Research Service regularly distributes reports on matters of importance to national policymaking to the thousands of 

staffers on Capitol Hill, but these reports aren’t systematically 

available to the public. They should be. We ask that the committee 

publish on its Web site all reports relevant to its jurisdiction. 

Transparency doesn’t just keep our political system working 

properly; it gives people reason to have faith that our political system can work for all of us. I know the committee understands this 

and I thank you for the opportunity to speak here today. 

[Prepared statement of Mr. Schuman follows:] 

72 


Insert offset folio 61 here 80143.061

SUNLIGHT 

FOUNDATION 

Testimony of Daniel Schuman, 

Policy Counsel and Director of the Advisory Committee on Transparency, 

tbe Sunlight Foundation, 

before the House Committee on Oversight and Government Reform 

on March 13, 2013 

Chairman Issa, Ranking Member Cummings, and distinguished members of the Oversight and 

Government Refonn Committee, thank you for the honor and privilege of speaking here today, 

My name is Daniel Schuman and I am policy counsel with the Sunlight Foundation, a nonpartisan non-profit organization whose mission is to use cutting-edge technology to make 

government transparent and accountable. We take inspiration from Justice Brandeis' famous 

adage "Sunlight is said to be the best of disinfectants," 

I appreciate the opportunity to appear during Sunshine Week to discuss the state of government 

transparency. 

THE STATE OF TRA!'ISP ARENCY 

Government transparency means different things to different people, but at its heart is the idea 

that the public has the right to know what the government is doing. Modem technology, when 

employed properly, makes government openness possible on an unprecedented scale and in ways 

previously unimaginable, We believe that public information should be available online, in real 

time, and in machine-readable formats because it empowers citizens, journalists, advocates, 

public officials, and everyone else to be more-fully involved in civic life. 

While the Obama Administration has made significant rhetorical strides towards a 21 st century 

vision of transparency, we believe that government must do more to yield information that is 

accurate, complete, and useful. It must rededicate itself to addressing the fundamental challenge 

of transparency itself. 

Over the last few years, we saw the launch of the Open Government Directive, I which required 

agencies to create openness plans and release high value datasets to the public, We saw a memo 

that enshrined a presmnption of disclosure for responses to Freedom of Information Act 

1 See ~'A Watershed Moment in Transparency and Accountability," by Ellen Miller. Sunlight Foundation (Dec, l1. 

2009), available at http://sunlightfoundation,comlblogi2009/12111/a-watershed-moment-in-transparency-andaccountability!; "Open Government: Idling in the Driveway," by Ellen MiHer, Sunlight Foundation (April 8,2010), 

avail able at http://sunlightfoundation,comiblog/20 1 O/04/0SJopen-government. idling ·in-the·dri vewayi. 
73 


Insert offset folio 62 here 80143.062

requests.2 We saw the creation of the first Federal Chief Technology Officer3 and the launch of 

Data.gov4 The newly created White House Ethics Czar fought against FOIA backlogs and 

implemented greater lobbying disclosures for the Wall Street and Main Street bailouts. The 

President spoke about fixing campaign finance disclosure in the wake of the Citizens United 

decision6 And, more recently, we've seen the rollout of Ethics.gov,7 the "We the People" 

platform,S the Open Government Partnership9, the Presidential Innovation Fellows,!O and FOIA 

Onlinell

. This is an impressive list, and there's more. 

Unfortunately, many of these initiatives have tapered ofT. There's no longer any experimentation 

around improved lobbying disclosure. 12 The President has acquiesced to unlimited money in our 

political system. 13 Agencies generally are not complying with the presumption of disclosure for 

FOIA requests. 14 There's no longer an Ethics Czar, or any senior staffer devoted full time to 

pulling together the many strands of government openness. The technological solutions that are 

being embraced, such as the "We the People" platform, often are more centered on getting public 

input than providing data about the government to the public. The brightest spot is the 

international Open Government Partnership,15 but it contains little about ethics in government, 

and many of its commitments represent longstanding pledges for incremental change. 

2 See "New Obama Orders on Transparency, FOlA Requests," by Ed O'Keefe, Washington Post (Jan. 21, 2009), 

available at http://voices.washingtonpost.comlfederal-eye/2009/OI/inamovethat.htm!. 

3 See "Kundra's Mission," by Ellen Miller, Sunlight Foundation (April 4, 2009), available at 

http://sunlightfoundation.comlblog/2009/04/04lkundras-mission/. 

4 See "White House Opens Doors on Major Open Government Initiative, by Micah Sifry and Nancy Scola, 

TechPresident (May 21, 2009), available at hltp:lltechpresident.comlblog-entry/white-house-opens-doors-majoropen~government-initiatives. 

5 See "White House Lobbying Meeting: Public Debrief," by John Wonderlich, Sunlight Foundation (May 6, 2009), 

available at http://sunlightfoundation.comlblog/2009/0S/06/white-house-lobbying-meeting-public-debrief/. 

6 See "Transparency in the State ofthe Union," by Ellen Miller, Sunlight Foundation (January 24,2012), available 

at http://sunlightfoundation.comiblog/2012/0l/24/transparency-in-the-state-of-the-union/. 

7 See "White House Launches Ethics.gov," by John Wonderlich, Sunlight Foundation (March g, 2012), available at 

http://sunJightfoundation.comlblog/2012/03/0S/white-house-launches-ethics-gov/. 

8 See "With 'We The People,' White House Promises to Go E-to-the-People," by Nick Judd, TechPresident (Sep. I, 

2011), available at http://techpresident.comlblog-entrv/we-people-white-house-promises-go-e-people. 

9 See "Two Suggestions For the US National Action Plan," by John Wonderlich, Sunlight Foundation (Aug. 31, 

201 I), available at http://sunlightfoundation.comlblog/201 I/OS/31/two-suggestions-for-the-us-national-action-plani. 

10 See "Wanted: A Few Good Women and Men to Serve as Presidential Innovation Fellows," White House (May 23, 

2012), available at http://www.whitehouse.gov/blogI2012/0S/23/wanted-few-good-women-and-men-servepresidential-innovation-feUows. 

11 See "A Status Report on FOIAonline," OpenTheGovernment.Org (Jan. 22, 2013), available at 

http://www.openthegovemment.orginode/3S3S. 

12 See "Lobbyists celebrate departure of White House ethics chief," by Paul Blumenthal, Sunlight Foundation (Aug. 

9,2010), available at http://sunlightfoundation.comlblog/2010/0S/09/1obbyists-celebrate-departure-of-white-houseethics-chief/. 

13 See "Obama Versus Campaign Finance Laws," by John Wonderlich, Sunlight Foundation (Feb. IS, 2013), 

available at http://sunlightfoundation.comlblog/20 I 3/0211 S/obama-versus-campaign-finance-laws/. 

14 See "Testing Obama's Promise of Government Transparency," Bloomberg (Sep. 27, 2012), available at 

http://go.bloomberg.com/multimediaibloomberg-checks-obama-transparencvl. 

15 See "Preparing for the US National Action Plan," by John Wonderlich, Sunlight Foundation (Sep. 16,2011), 

available at http://sunlightfoundation.comlblog/201 1/09i16/preparing-for-the-us-national-action-plani. 

Page 2 
74 


Insert offset folio 63 here 80143.063

LEGISLATION RIPE FOR CONSIDERATION BY CONGRESS 

Many challenges remain unmet by the executive branch. Fortunately, Congress has been active 

in crafting legislation solutions, many of which are ripe for final consideration by Congress. We 

identify four bills that already have been considered by this Committee and should be fasttracked through the process. 16 They are the DATA Act, the Access to Congressionally Mandated 

Reports Act, the Federal Advisory Committee Act Amendments, and the Presidential Library 

Donation Reform Act. 

The DATA Act 

The issue of federal spending transparency deserves special attention, particularly in light of the 

sequester, the Super Committee, and the fight over spending priorities. The American people 

should be able to track ever federal dollar from the moment the President proposes a budget to 

the receipt of funds by sub-awardees or sub-contractors, and every point in between. This 

Committee took on this monumental task and crafted the DATA Act, regarding which Sunlight's 

executive director had the opportunity to testify in 2011.17 

Without getting into too many details, we believe the DATA Act is a revolutionary transparency 

measure for three reasons. It provides for the government-wide systematic tracking of funds by 

instantiating unique identifiers for spending data at a high level of granularity. It vests 

responsibility for tracking spending in a Board that has the sole mission of spending 

transparency, building on the excellent work of the Recovery, Accountability, and Transparency 

Board. And, it would release new datasets and allow for the automatic checking of spending 

information to make sure that it is accurate and reliable. 

We at the Sunlight Foundation know that currently released federal spending data is not reliable. 

For the third year in a row, we used the government's data to evaluate its grants, and found $1.55 

trillion in misreported spending. 18 That's a huge discrepancy. 19 We evaluated the consistency, 

completeness, and timeliness of how spendin~ information is reported to the public, and found 

our government's effort to be sorely wanting. 0 While the Administration is again making vague 

declarations about its desire to start to get serious about unique identifiers and data quality, we 

16 We are also keeping a close eye on the implementation of recently-passed transparency measures, such as the 

STOCK Act. 

17 See "Testimony of Ellen Miller Before the House Oversight and Government Reform Committee Regarding 

Transparency Through Technology," Sunlight Foundation (March 11,2011), available at 

http://sunlightfoundation.com/policyidocuments/testimony-ellen-miller-house-oversightl. 

18 See "Analysis of federal spending shows faults in data collection and reporting," available at 

http://sunlightfoundation.com/pressireleases/20 13102104Ius-government-misreported-15 5-trillion-grants-20 II I; and 

our Clear Spending Scorecard, available at http://sunlightfoundation.com/clearspending/scorecard/. See also 

"ClearS pending Released with New Data," by Kaitlin Divine (Feb. 14, 2013), available at 

http://sunlightfoundation.comlblog/20 13102104Iclearspending-released-with-new-datal. 

19 We compared two datasets against each other. The first dataset is FAADS-PLUS (Federal Awards and Assistance 

Data System PLUS), which contains information about direct assistance and is available from USASpending.gov. 

The second dataset is the CFDA (Catalog of Federal Domestic Assistance), which are yearly program obligation 

estimates for aU grants and loans. We measured the consistency between these two datasets. For more on 

methodology, see http://sunlightfoundation.com/clearspending/methodologY/. 

'0 69.2% of reported funds failed because the numbers we cross-checked were inconsistent; 26% were incomplete; 

and 1.5% of obligations were not timely. 

Page 3 
75 


Insert offset folio 64 here 80143.064

know that real progress will only come in response to congressional initiative.21 We hope that the 

legislation will speedily work its way through Congress22 

Access to Congressionally Mandated Reports Act 

Another transparency initiative championed on a bipartisan basis by this Committee is the 

ongoing effort to have all legally-mandated reports from federal agencies to Congress be made 

available online in one central location. The Access to Congressionally Mandated Reports Act 

was favorably reported by this committee and the Committee on House Administration, but time 

ran out before the House had an opportunity to vote on the measure in the I 12th Congress23 With 

so much of the work done, we hope that Chairman Issa and Ranking Member Cummings will 

again spearhead the effort and speedily send the measure to the Senate, where a companion bill 

is waiting.24 

Federal Advisory Committee Act Amendments & Presidential Library Donation Reform Act 

We also urge the Committee to speedily consider the Federal Adviso~ Committee Act 

Amendments bill and the Presidential Library Donation Reform Act. 2 Federal advisory 

committees play an important role in how agencies formulate rules, but significant loopholes 

have emerged in how they disclose their work to the public. Advisory committees shouldn't be a 

stealthy way for special interests to influence the political process.26 The Presidential Library 

Donation Reform Act27 would require presidential libraries to disclose their donors, which would 

provide valuable information on special interests whose donations put them in close proximity 

with ( future) former presidents. 

LEGISLATION THE COMMITTEE SHOULD EXPLORE 

Presidential administrations are ephemeral, and (all too often) so is the will to be transparent. 

The White House has created several new transparency initiatives that should be made into 

government policy, such as the Open Government Directive, Data.gov, and FOIA reform. 

21 See "Only Congressional Pressure Can Drive Real Federal Spending Transparency Reforms," by Daniel 

Schuman, Sunlight Foundation (Feb. 15,2013), available at http://sunlightfoundation.comlblog/2013/02115/onlycongressional-pressure-can-drive-real-federal-spending-transparency-refoTIns/. 

" We also hope that the Committee will look at why many agencies are doing such a poor job meeting their current 

reporting obligations. 

" See ""Access to Congressionally Mandated Reports Act" Advances to the House Floor," by Daniel Schuman, 

Sunlight Foundation (June 23,2011), available at http://sunlightfoundation.comlblogl20l1l06123/access-tocongressionally-mandated-reports-act-advances-to-the-house-floor/. 

'4 Senators Warner and Portman introduced the Senate version in the 112" Congress and are expected to do so again 

for the 113th. 

25 We also think highly of the Grant RefoTIn and New Transparency Act (the GRANT Act), but have not delved 

deeply into the matter. See http://sunlightfoundation.com/bJog/2011l12/16/grant-transparency-good-duns-numbersbad!. 

26 See "Fixing Federal Advisory Committees," by Daniel Schuman, Sunlight Foundation (July 12,2011), available 

at http://sunlightfoundation.comlblogl2011l07112/fixing-federal-advisory-committees/. 

27 See "Two Transparency Bills Already On-Tap for New Congress," by Paul Blumenthal, Sunlight Foundation 

(Jan. 5,2009), available at http://sunlightfoundation.comlblog/2009/01105/two-transparency-bills-already-on-tapfor-new-congress!. 

Page 4 
76 


Insert offset folio 65 here 80143.065

In addition, Connnittee oversight on issues where the executive branch has pre-existing 

transparency obligations, such as White House Visitor Logs, OIRA Lobbying Reports, and 

DOl's OLC Opinions, would be salutary to government openness. 

Open Govemment Directive 

The Open Government Directive is a groundbreaking initiative led by the White House to make 

the federal government more open and accountable, and came out of extensive consultation with 

the public. With a tight timeframe, the OGD required agencies to publish 3 high value datasets, 

create and regularly update open government plans, proactively disseminate useful information 

using modern technologies, participate in a high level working group on transparency, reduce 

FOIA backlogs by 10% annually, and much more28 

The results have been decidedly mixed, due in significant part to reticence by many agencies to 

comply."9 The non-compliance is a reason to double-down, not back away. The goals and 

requirements of the Open Government Directive include a foundation for what is necessary to 

open up government, and agencies should not have the false sense that they can wait for the 

Obama Administration's transparency enthusiasm to wane or its focus to shift or the presidency 

to change hands. That's why Congressional action is necessary. Agencies should be under no 

illusion that they can avoid continually engaging the public, making and executing plans for 

openness, reducing their FOIA backlogs, publishing new data sets, and so on. The best parts of 

OGD should be codified into law. 

Federal Transparency Websites Such As Data.gov 

As part of the Administrations' openness efforts, it created a number of federal transparency 

websites, most notably Data.gov, which is a central clearinghouse where agencies post raw 

datasets. While it has its flaws, Data.gov contributes significantly to government openness. 30 The 

same is true for the IT Spending Dashboard, USASpending.gov, and many of the other initiatives 

funded through the E-Government Fund.3l However, the E-Government Fund is intended as a 

capital fund for start-up government transparency efforts, not mature programs. As many of 

these initiatives have matured and found their place serving important government purposes, 

they should be defined in law and given their own budget lines. 

Freedom of Information Act 

28 See "Open Government Directive Timelines," by Daniel Schuman, Sunlight Foundation (Dec. 8, 2009), available 

at http://sunlightfoundation.comiblog/2009/12/08/open-government-directive-timelines/. 

29 See "Obama's Open Government Directive, Two Years On," by John Wonderlich, Sunlight Foundation (Dec. 7, 

2011), available at http://sunlightfoundation.comiblog/2011/12/07/obamas-open-government-directive-two-yearson/; and the Sunlight Foundation's Open Government Implementation Tracker, available at 

http://www.opencongress.org/wiki/Open Government Directive Implementation Tracking. 

30 See "Data.gov Clarity," by John Wonderlich, Sunlight Foundation (April 4, 2011), available at 

http://sunlightfoundation.comlblog/2011104114/data-gov-c1aritvl. 

3! See "GAO Progress Report for E-Gov Fund," by Daniel Schuman, Sunlight Foundation (Sept. 27, 2011), 

available at http://sunlightfoundation.comiblog/2011109/27/gao-looks-at-e-gov/. 

Page 5 
77 


Insert offset folio 66 here 80143.066

It's time to modernize FOIA. The Administration's directive placing a Eresumption in favor of 

disclosure should, with appropriate modifications, be enacted into law. 2 The FOIA Online 

initiative, which allows the public to make online FOIA requests of agencies, search responses to 

other requests, and track agencies as they formulate a response, should be expanded to more 

agencies and placed on firmer financial footing3 ) In addition, documents that agencies publish to 

the public should be made available online, as is called for in the Public Online Information 

Act. 34 The Office of Government Information Services, better known as the federal FO IA 

Ombudsman, should be strengthened, including by giving it the ability to directly request its 

budget from Congress via a dedicated budget line item. Finally, and most importantly, real teeth 

must be put into measures that impose proactive disclosure, including requiring the federal 

government to identifY the data it already holds. 35 

White House Visitor Logs 

The White House began releasing its visitor logs,36 as part of an agreement to settle a lawsuit 

filed by Citizens for Responsibility and Ethics and Washington that sought the records, starting 

with records for the second half of September 2009.37 (A separate lawsuit by Judicial Watch is 

ongoing.)38 As my colleague John Wonderlich explained in testimony before the House Energy 

and Commerce Committee, "the visitor logs disclosure rules should be tightened, but real reform 

must also include updating lobbying disclosure laws.,,39 The White House has significant 

discretion about which logs to release, and it is unclear how a future president would behave. 

There's also significant opportunity for avoiding disclosure, such as meetings at coffee shops 

across the street from the White House4o We believe the rules regarding disclosure of visitor 

J2 See "Memorandum for the Heads of Executive Departments and Agencies - Subject: The Freedom ofInformation 

Act," The White House (Jan. 21, 2009), available at http://www.whitehouse.gov/the-press-office/freedominformation-act. 

33 See the ForA Online website at https:!!foiaonlinexegulations.gov/foialaction!publicfhome. The British non-profit 

organization My Society's website What Do They Know likely is the inspiration for FOIA Online. More information 

available at http://www.whatdotheyknow.com!. 

34 See http://sunlightfoundation.com!policylpoiai. 

35 See "The Missing Open Data Policy," by John Wonderlich, Sunlight Foundation (March 22. 20(2), available at 

http://sunlightfoundation.comfhlogl2012/03/22/the-missing-open-data-policY!. 

36 See "White House Visitor Logs -- 25k Records Released for Late September," by Daniel Schuman. Sunlight 

Foundation (Dec. 30, 2009), available at http://sunlightfoundation.comfhlog/2009/12/30/white-house-visitor-Iogs25k-records-released-for-Iate-september!. 

37 See "CREW and Obama Administration Reach Historic Legal Settlement - White House to Post Visitor Logs," 

CREW (Sep. 4, 2009), available at ht!p:!lwww.citizensforethics.org/index.phpfpress/entry/crew-and-obamaadministration-reach-historic-settlement-on-visitor-records!. 

38 See "WH Selectively Releases More Visitor Logs," Judicial Watch (Sep. 4, 2012), available at 

http://www.judicialwatch.orgfhlog/2012/09/wh-releases-more-visitor-Iogs-forced-by-jw-Iawsuit!. 

39 See "John Wonderlich Testimony Before the House Energy and Commerce Committee Regarding White House 

Visitor Logs," Sunlight Foundation (May 3, 2011), available at 

htlp:!!sunlightfoundation.com!policY!documents!john-wonderlich-testimony-house-energy-and-commerc!. 

40 See "White House meets lobbyists off campus," by Chris Frates, POLITICO (Feb. 24,2011), available at 

httn:!!www.politico.com/news!stories!021l/50081.html. 

Page 6 
78 


Insert offset folio 67 here 80143.067

logs should be fleshed out and enacted into law. Of course, to truly track the exertion of 

influence by special interests, we need comprehensive lobbying reform. 41 

OIRA Lobbying 

The Office ofInformation and Regulatory Affairs within OMB is responsible for reviewing all 

major rulemakings by executive branch agencies prior to promulgation. As such, it is a 

significant locus oflobbying activities. While there are executive-branch promulgated rules that 

are supposed to make lobbying activities transparent, as a practical matter the rules are evaded or 

ignored, according to reforts by GAO, the Center for Progressive Reform, and the Center for 

Effective Govemment.4 While it is within the executive branch's power to fix this problem, it 

has failed to do so, and Congress should sets these rules. We encourage the Committee to review 

whether the Administration is following its own rules and to formulate legislation that 

establishes a clear framework for disclosure. 

Deparlment of Justice Office of Legal Counsel Opinions 

The opinions of the Department of Justice's Office of Legal Counsel constitute authoritative 

legal advice to the executive branch on questions central to the functioning of govemment. A 

20 I 0 Obama administration memo endorsed "the presumption that [OLC] should make 

significant opinions fully and promptly available to the public.',43 The Obama Administration's 

first nominee to head the OLC, along with 18 other former DOJ officials, went further in a 2006 

article in which they declared that "OLC should publicly disclose its written legal opinions in a 

timely manner, absent strong reasons for delay or nondisdosure.,,44 

A Sunlight Foundation analysis revealed that the DOJ is still withholding 39% of the 509 

opinions it issued between 1998 and March 2012.45 We also determined that a list of opinion 

titles provided via FOIA request varied significantly from the list of opinions available on OLe's 

website.46 These reports are essential to understanding executive branch behavior, but far too 

many of these reports are withheld from the public. Even for those reports that cannot be 

released in their entirety, their existence and subject matter should be identified publicly.47 Rules 

41 The Sunlight Foundation is a strong supporter of the proposed Lobbying Disclosure Enhancement Act, which 

would eliminate the 20% threshold to register as a lobhyist and enact other meaningful reforms. For more, see 

http://sunlightfoundation.comlpolicy/lobbying/. 

42 See "Fix Federal Rulemaking Lobbying Transparency," by Daniel Schuman, Sunlight Foundation (Oct. 4, 2012), 

available at http://sunlightfoundation.comlblog/2012/10/04/fix-federal-rulemaking-lobbying-transparency/. 

43 See "Memorandum for Attorneys of the Office - Re: Best Practice for OLC Advice and Written Opinions," Office 

of Legal Counsel, Department of Justice (July 16,2010), available at http://www.justice.gov/olc/pdf/olc-Iegaladvice-opinions.pdf. 

44 See "Guidelines for the President's Legal Advisors," the American Constirution Society (May 2006), available at 

http://www.acslaw.org/fileslMicrosoft%20Word%20-%2011 Johnsen OLC.pdf. 

45 See "39% of Office of Legal Counsel Opinions Kept from the Public," by Daniel Schuman, Sunlight Foundation 

(Aug. 15, 2012), available at http://sunlightfoundation.comlblog/20 12/08/15/39-of-office-of-legal-counsel-opinionskept-from-the-public/. 

46 21 opinions were available on the DOl's website that were not identified in FOIA responses to public requests for 

a list of these documents. The DOJ did not publish on its website 24 reports that it identified in its FOIA response 

that we were able to locate using a Google search. 

47 Here are some sample reports: "Lawfulness of Recess Appointments During a Recess of the Senate 

Notwithstanding Periodic Pro Forma Sessions"; "Whether Proposals by Illinois and New York to Use the Internet 

and Out-Of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act Date 

Page 7 
79 


Insert offset folio 68 here 80143.068

regarding when and how the reports are made available to Congress and to the public should be 

spelled out and enacted into law. 

A BRIEF WORD ABOUT CONGRESS AND CRS 

While this hearing focuses on executive branch transparency, I would be remiss if I did not 

mention an additional measure that this Committee, on its own, could implement right now to 

make government more transparent48 The Congressional Research Service regularly issues 

reports on matters of importance to national policymaking, including executive branch activities. 

These timely, authoritative reports help Congress and the public gain a deeper understanding of 

issues ranging from FOIA reform to the E-Government Fund to the Presidential Records Act.49 

Unfortunately, the reports are not systematically made available to the public, and the reports 

that are available to the public are either out-of-date or behind a pay wall. 

While we and many others support a resolution that would make all reports available through the 

House Clerk,so we recornmend that the Committee on Oversight and Government Reform 

publish CRS reports that pertain to matters under its jurisdiction on the committee website. Other 

legislative support agencies, such as GAO and CBO, already release their reports to the public, 

and CRS reports are often made available on an ad hoc basis by individual members of Congress 

and committees. The release of the reports in a timely fashion would help make sure that the 

public has up-to-date and complete access to scholarly discussions on executive branch 

activities. 

CONCLUSION 

Today's discussion of transparency in the federal bureaucracy, well-timed to coincide with 

Sunshine Week, provides a welcome opportunity to discuss how the government can become 

more open and accountable. While there are important transparency-related issues that my 

testimony does not explore in great depth, such as the important of disclosing the role of money 

in our political system as reflected in lobbying and campaign finance disclosure, or the great 

issues of national security,S I it is my hope that we've provided a solid foundation for discussing 

Posted"; "Constitutionality of Legislation Extending the Tenn of the FBI Director"; "Whether Bills May Be 

Presented by Congress and Returned by the President by Electronic Means"; and "Authority to Use Military Force 

in Libya." 

48 I can't help but mention that Congress should provide Bulk Access to Legislative Data as well as publish its 

expenditures as spreadsheet files, but as you can see I'm doing so in this footnote. For more, see "House Convenes 

Second Public Meeting on Legislative Bulk Data," by Daniel Schuman, Sunlight Foundation (Feb. 14,2013), 

available at http://sunlightfoundation.comlblog/20 13/02/14lhouse-convenes-second-public-meeting-on-Iegislativebulk-data/; and "Will the House's Leg Spending Bill Match Its Transparency Priorities?" by Daniel Schuman, 

Sunlight Foundation (May 24, 2012), available at httu:iisunlightfoundation.comlblogitagiHouse-AppropriationsCommittee/. 

49 See "The Freedom oflnformation Act and Nondisclosure Provisions in Other Federal Laws," by Gina Stevens, 

Congressional Research Service (Sep. 24, 2010), available at http://www.fas.orglsgp/crs/secrecyIR41406.pdf; 

"Reauthorization of the E-Government Act: A Brief Overview," by Jeffrey W. Seifert, Congressional Research 

Service (May 14,2008), available at http://www.fas.org/sgp/crsisecrecyiRL34492.pdf; "The Presidential Records 

Act: Background and Recent Issues for Congress," by Wendy Ginsberg, Congressional Research Service (Nov. 15, 

2012), available at http://www.fas.orglsgp/crs/secrecyIR40238.pdf. 

50 See "It's Time to Give the Public Access to CRS Reports," by Matt Rumsey, Sunlight Foundation (March 7, 

2013), available at http://sunlightfoundation.comlblogl20 13/03/07 lits-time-to-give-the-public-access-to-crs-reports/. 

51 Or making the legislative or judicial branches more transparent, for that matter. 

Page 8 
80 


Insert offset folio 69 here 80143.069

many important issues. More information about federal transparency issues can be found on the 

Sunlight Foundation's website.52 

James Madison, whose birthday anchors Sunshine Week, said "a popular government without 

popular infornlation or the means of acquiring it, is but a prologue (0 a farce, or a tragedy, or 

perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own 

Governors, must arm themselves with the power which knowledge gives." 

He was surely right. Thank you for the opportunity to appear before you today and for your 

continued attention to these issues. I am looking forward to our discussion. 

" See "Sunlight Foundation Policy Agenda," available at http://sunlightfoundation.com!policy/agendal. 

Page 9 
81 

Mr. MICA. [Presiding.] Thank you, Mr. Schuman. 

We will now hear from the last witness, Celia Wexler, the Senior 

Washington Representative for the Union of Concerned Scientists. 

Welcome, and you are recognized. 

STATEMENT OF CELIA VIGGO WEXLER 

Ms. WEXLER. Representative Mica, Ranking Member Cummings, 

and members of the committee, thank you for inviting me to testify 

today and for holding this hearing during Sunshine Week. 

Our Union of Concerned Scientists has more than 400,000 members and supporters throughout the Country. This nonpartisan, 

nonprofit puts rigorous independent science to work to solve our 

planet’s most pressing problems. Our new Center for Science and 

Democracy is committed to promoting science and fact-based evidence to inform public policy decisions and enrich our democratic 

discourse. FACA reform reflects our longstanding commitment to 

improve scientific integrity at federal agencies. 

The Federal Advisory Committee Act is a lesser known, but valuable, tool in ensuring a transparent and accountable Government. 

It requires that when federal policymakers seek advice from outside experts and stakeholders, that the public is informed and has 

the opportunity to participate. 

Congress enacted FACA in 1972, after hearings exposed a system 

where more than 2,000 advisory Groups were offering guidance to 

federal officials in secret. In 1971, Senator Lee Metcalf warned that 

this secret fifth arm of Government threatened democracy. Information is the important commodity in this capital, Metcalf said. He 

warned about the influence of special interest groups who are not 

subject to rebuttal because opposing interests do not know about 

the meetings and could not get in the door if they did. 

The point of FACA was to change this corrupt system to restore 

to the public what Metcalf termed the two fundamentals of a democracy: disclosure and counsel; the rights of people to find out 

what is going on and, if they want, to do something about it. FACA 

did open up the system and allow more scrutiny, but the law needs 

to be updated and strengthened. It has been weakened by judicial 

decisions that have created loopholes, making it easy for agencies 

in executive branch to evade the rules and meet with outside 

groups in secret. And my written testimony goes into more detail 

about that. 

Too many FACA panelists also are evading conflict of interest 

groups. Experts with financial ties to the very companies that will 

be affected by a panel’s recommendations often exert considerable 

influence on how agencies address vital issues like the safety of our 

drugs or the quality of our environment. 

This committee has been a pioneer in bipartisan FACA reform, 

and in the 112th Congress it unanimously approved H.R. 3124, the 

FACA Amendments Act of 2011. And, as you know, this bill had 

substantive reforms that we heartily endorse and we urge you to 

build on the reforms that that legislation proposed. 

And we would hope that this committee will approve an even 

stronger FACA bill, one that will limit the number of conflicted experts on scientific and technical panels. We also urge you to begin 

the process to build a FACA for the 21st century, requiring the 

82 

General Services Administration to help agencies use new technology to Webcast meetings; experiment with virtual meetings, 

which could reduce travel expenses; expand the pool of experts; and 

increase public participation. 

Like whistleblower protection reform, FACA reform has been discussed for years, but under your leadership, last Congress, the 

strongly bipartisan Whistleblower Protection Enhancement Act became law. We believe this committee can reach another transparency and accountability milestone this Congress with the enactment of a significant FACA reform law. 

We look forward to working with you on this crucial reform legislation and believe that under your leadership the prospects for bicameral, bipartisan success are bright. Thank you, and I look forward to your questions. 

[Prepared statement of Ms. Wexler follows:] 

83 


Insert offset folio 70 here 80143.070

Written Testimony of Celia Viggo Wexler, Senior 

Washington Representative, 

Center for Science and Democracy at the Union of Concerned Scientists 

Before the House Oversight and Government Refonn Committee 

March 13, 2013 

Chainnan Issa, Ranking Member Cummings and members of the committee. Thank you for 

recognizing the importance of a mOfe transparent government by holding this hearing during 

Sunshine Week. With more than 400,000 members and supporters throughout the country, the 

nonpartisan nonprofit Union of Concerned Scientists puts rigorous, independent science to 

work to solve our planet's most pressing problems. OUf new Center for Science and 

Democracy is committed to promoting science and fact-based evidence to infonn public policy 

decisions and enrich OUf democratic discourse. Thank you for giving me this opportunity to 

speak in support of this committee's pioneering efforts to refonn the Federal Advisory 

Committee Act, or F ACA. 

.. Union of Concerned Scientists 

Two Brattle Square' Cambridge, MA 02138-3780 • TEL: 

617.547.5552 • FAX: 617.864.9405 

i 1825 K Street NW, Suite 800 • Washington, DC 20006-1232 • TEL: 

202.223.6133 • FAX: 202.223.6162 

2397 Shattuck Avenue, 2iuite 203 • Berkeley, CA 94704-1567 • ITl: 510.843.1872 • FAA: 510.843.3785 

One North LaSalle Street, Suite 1904 • Chicago, IL 60602-4064 • 

TEL: 312.578.1750 • FAX: 312.578.1751 
84 


Insert offset folio 71 here 80143.071

Federal advisory panels are an established part of government. Annually, about 1,000 

panels help federal agencies address challenges that touch on issues as diverse as the safety 

of prescription drugs, the quality of our air, hospital outpatient fees, animal health and 

biomass research. In 2012, expenditures on federal advisory panels totaled near $360 

million, and involved more than 70,000 participants. i The advice such outside experts 

provide to federal agencies can far exceed their cost to the taxpayer. 

But that advice should not be given in secret, nor should it be rendered by panelists who 

have undisclosed financial ties to entities that would directly benefit from a committee's 

recornmendations. Indeed, it was concern about the lack of transparency 

in the dispensing of advice to the federal government that created the law to begin with. 

More than 40 years ago, Congress held a number of hearings that uncovered the existence 

of what some members termed a "fifth arm" of government that operated with very little 

scrutiny. Congress didn't even know how many advisory panels existed, although they 

assumed there were more than 2,000. Advisory panels routinely were held without any 

advance notice and were not open to the public. There was a concern that many advisory 

panels largely consisted of corporate insiders more than happy to influence public policy 

with nobody the wiser. ii 

Congress justifiably felt that advisory panels had a place in government, an important 

one, but that the way they were operating was not democratic. In 1971, Sen. Lee Metcalf 

(D-MT) held a series of hearings on the federal advisory committee process. In his opening 

statement, he observed: "What we are dealing with in these hearings goes to the bedrock of 

government decision making. Information is the important cornmodity in this capital. 

2 
85 


Insert offset folio 72 here 80143.072

Those who get infonnation to policymakers, or get infonnation for them, can benefit their 

eause, whatever it may be. '" And decision makers who get infonnation from special 

interest groups who are not subject to rebuttal because opposing interests do not know 

about meetings and could not get in the door if they did - may not make tempered 

judgments. 

"We are looking at two fundamentals," Metcalf continued, "disclosure and counsel, the 

rights of people to find out what is going on, and if they want, to do something about it." iii 

That's still what FACA should be about - these two bedrocks of demoeracy -letting 

people know what their govennnent is doing, and offering them a way to participate. 

Over the years, however, the goals of F ACA have been eroded, in part by flawed 

agency practices and also by unwise judicial decisions that created loopholes that allow 

advisory panel work to be done in secret. We urge you to: 

• Address these loopholes and any unforeseen weaknesses in the original law; 

• Ensure that FACA panels are truly independent and free of special- interest 

influence; 

• Make their work fully transparent, and 

• Create a foundation for F ACA to flourish in the 21 st century. 

In its work in the I 13th Congress, this Committee can wisely build on a foundation of 

legislative proposals, the most recent, The Federal Advisory Committee Act Amendments 

Of 2011, HR 3124, approved unanimously by House Oversight and Government Refonn 

members. HR 3124 contains many of the refonns my testimony will touch on. This 

Committee can also look to the work of the Office of Science and Technology Policy and its 

3 
86 


Insert offset folio 73 here 80143.073

Scientific Integrity Memorandum, issued in 2010. The Memorandum specifically addresses 

the use of federal advisory committees to ensure the greatest scientific integrity. 

Righting Judicial Wrongs 

This Committee was a leader in reforms to address court-created gaps in our federal 

whistleblower law. It must assume the same role in addressing loopholes in F ACA created 

by unwise judicial decisions. The loophole that has the most likelihood of causing mischief 

is the subcommittee loophole. Currently, a FACA panel may form subgroups to achieve 

certain tasks and then report back to the full panel, where a public meeting and a vote 

would take place. There is nothing wrong with fonning subcommittees to speed along a 

panel's work. What is wrong is excluding them from the law's transparency requirements. 

Subcommittees should be subject to the same public scrutiny as full advisory panels for the 

same reason: the public ought to be able to know the source of the advice their govemment 

relies on, and how that advice influences public policy decisions. 

This is crucial because we know that advisory panels strive for consensus and often can 

be greatly influenced by the one or two members who may be most engaged and informed 

on the issue. Equally troubling, the subcommittee loophole makes it easy for 

subcommittees to avoid hearing alternative views at the time when the discussion of issues 

is at its formative stage, because there has been no public notice of a meeting, and no 

opportunity to speak or submit written comments. 

In late 2009, for example, professionals working on health information technology 

issues complained that the Department of Health and Human Services appeared to be using 

the subcommittee loophole to hold secret meetings to discuss health IT policy under the 

American Recovery and Reinvestment Act. One IT expert was so frustrated by the lack of 

4 
87 


Insert offset folio 74 here 80143.074

transparency that he filed a Freedom ofInformation Act request to get access to the 

meeting minutes and agenda. IV 

When govemment elects to do its work in secrecy, it not only weakens the public's 

faith in its policies, it also fails to benefit from the views of citizens whose skills and 

expertise may enrich the process. 

We strongly urge that the contractor loophole be closed for very similar reasons. The 

fact that an agency has asked a contractor to do some of the work of forming a federal 

advisory panel should not change the rules of how that panel operates. As long as a 

contractor-formed panel's aim is to provide recommendations to a federal agency, it is 

doing the public's business, and ought to conduct that business in public. 

We also urge you to close the loophole that pennits federal officials to secretly and 

routinely seek the gnidance of outsiders, as long as these non-federal participants are not 

voting members of an advisory group.v The public has a right to know not only who has 

been invited to be at the table, but those who were left out. The Cheney energy task force, 

for example, only sought the advice of energy companies. It failed to consult in any 

meaningful way with environmental groups.vi 

Addressing Bad Agency Practices 

Federal advisory panels consist of experts, who are called Special Government 

Employees (SGEs), and representatives, selected to speak for a particular industry or 

stakeholder group. FACA requires that "the advice and recommendations of the advisory 

committee not be inappropriately influenced by the appointing authority or by any special 

interest." To that end, the Ethics in Govemment Act requires SGEs to file financial 

disclosure forms to identify any financial relationship that may constitute a conflict of 

5 
88 


Insert offset folio 75 here 80143.075

interest. Essentially, a conflict or potential conflict occurs when an SGE or his immediate 

family has financial ties - through investments, employment, job offers, grants or 

consulting fees - to entities that will be affected by the advice the panel will give. The 

Ethics in Govemment Act requires that such conflicts be disclosed to the appropriate 

agency official. The agency may decide that the conflict is too great, and the SGE must not 

participate in a particular meeting or on a particular panel, that the extent of the financial 

relationship is too remote or insignificant to affect the SGE's participation, or that the 

conflict or potential conflict is outweighed by the benefit of the expert's participation. 

Agencies issue waivers to permit conflicted experts to participate. Members who are 

designated representatives instead of SGEs are not subject to these ethics rules. 

While these conflict rules are not terribly onerous, agencies often have found ways to 

evade them. In 2004, the Government Accountability Office examined advisory panels at 

the Department of Energy, the Department of the Interior, and the Department of 

Agriculture that consisted almost entirely of representatives, even when their expert advice 

was being sought, and they should have more properly been designated SGEs. The GAO 

again raised concerns about this practice in 2008, when it came before this Committee's 

subcommittee on Infonnation Policy, Census and the National Archives. GAO director of 

natural resources and environment Robin Nazzaro testified that, "in light of indications that 

some agencies may continue to use representative appointments inappropriately," it would 

be prudent for Congress to address this problem in statute.vii As of2012, more than 

11,000 individuals served on advisory panels as representatives, while 22,000 members 

were designated SGEs.viii This ratio may still demonstrate an overuse ofrcpresentative 

classification that a F ACA refonn law can address. 

6 
89 


Insert offset folio 76 here 80143.076

Curbing Conflicts of Interest 

Agencies for the most part have not done a good job policing advisory pancls for undue 

special-interest influence. At the Food and Drug Administration, recommendations made 

by federal advisory panels can mean millions of dollars in revenue for drug companies. 

Our research, and that of our colleagues working on public health issues, has uncovered 

many instances where panels included members with significant financial ties to drug 

makers whose bottom lines would be affected by the panels' recommendations. These 

conflicts are all the more pernicious because they often emerge only in media accounts. 

Panelists often fail to disclose a potential conflict. Sometimes, the FDA decides that the 

conflict is not serious enough to warrant a waiver or a recusal. 

Conflicts matter. In some cases, such as votes on the painkillers Bextra and Vioxxix 

and the contraceptive Yaz,x conflicted experts made a difference in the outcome. But more 

common, and just as concerning, are the situations where conflicted experts are able to 

influence other panelists precisely because of their investment in the issue. Panels operate 

in ways similar to juries, and that means that committee members with the strongest views 

are able to influence the process in ways far beyond their votes.xi Our research into past 

F ACA panels also has uncovered significant conflicts among experts serving on panels at 

the Centers for Disease Control, the National Institutes of Health, and the USDA. 

How can we reduce conflicts? Certainly one way is to enlarge the pool of qualified 

applicants for advisory panel slots, and to engage the public in vetting these candidates. 

The EPA's Science Advisory Board does just that. It's also made 

the absence of a conflict of interest a major selection criterion. 

While agencies often complain that the pool of experts is too small to avoid conflicts, 

7 
90 


Insert offset folio 77 here 80143.077

8 

that has not been our experience. At the Union of Concerned Scientists, we invited 

members of our science network to apply for vacancies at FDA advisory panels. Within 

weeks, we received the CVs of 61 qualified candidates without conflicts. Those candidates 

alone would have filled more than half the 100 vacancies that were then pending on FDA 

d . I xii a VISOry pane s. 

We recommend that Congress go much farther, and, at least for scientific or technical 

committees, ban all experts from FACA panels who have significant financial ties to 

businesses that will be affected by the panel's recommendations. Congress has already 

demonstrated its concerns about conflicts. The F ACA Amendments Act of 1997 states that 

no federal agency may receive advice from the National Academy of Sciences or the 

National Academy of Public Administration unless certain conflict of interest and other 

disclosure requirements are met. The law requires that NAS and NAP A publicly disclose 

nominees and seek public comments on nominees' qualifications. The law directs NAS 

and NAP A to retain conflicted experts only when the participation of such an expert is 

"unavoidable." xiii This practice would not mean a loss of valuable expertise. A panel may 

ask any expert, no matter how conflicted, to make a presentation, and respond to questions. 

Conflicted experts, however, would not be permitted to engage in panel discussions and 

votes. 

FACA for the Future 

Also important for FACA reform is ensuring the highest degree of public participation 

and transparency in the work of advisory panels. At the very least, advisory panels must 

offer the public detailed minutes of meetings, but full transcripts are far preferable. All 

information about panels ~ the numbers of SOEs and representatives, and the reasons for 
91 


Insert offset folio 78 here 80143.078

their designations, the panel's charter, biographical information on panel members, waivers 

to conflicted members and the reasons for the waiver - should be accessible on an agency 

website. Panel meeting materials should also be part of the website's public record. 

These common-sense openness reforms are reiterated in the Scientific Integrity 

Memorandum issued by Dr. John Holdren, dircctor of the Office of Science and 

Technology policy, in 201 o. The Memorandum recommends that agencies recruit panel 

members as widely and transparently as possible, and solicit nominations from the public. 

Public information about panelists and their qualifications should be part of the public 

record. When an agency must issue a conflict of interest waiver that too, should be publicly 

disclosed. 

But we should aim for more comprehensive reforms. We would urge this Committee to 

explore innovative ways to use new technology to make advisory panels more inclusive. 

Holding panel meetings remotely should be encouraged. It would save the goverrnnent 

travel expense and per diems, and would permit more experts to participate, hopefully 

enlarging the pool of experts without financial ties to companies affected by panel 

recommendations. It would also make it possible for an interested and engaged citizen in 

Wyoming or Texas, Ohio or Florida to log on to a secure website, listen to the meeting, and 

ideally be able to participate. 

It is the 21 st century. We would hope that the General Services Administration could 

provide guidance to agencies about virtual meetings, and how to webcast their meetings 

inexpensively, or at least provide audio/video recordings of meetings. The disability 

community should also be consulted so that these participatory experiments do not exclude 

them. 

9 
92 


Insert offset folio 79 here 80143.079

We look forward to working with you to enact into law a FACA refonn bill that 

includes all the refonns of HR 3124, but that also makes other significant advances in 

enhancing the transparency and accountability of federal advisory panels. With new 

leadership at the Senate Homeland Security and Governmental Affairs Committee, we 

believe the prospects for a bipartisan, bicameral refonn bill have never been brighter. 

'General Services Administration, "What is the Composition of Committees?", 

www.gsa.gov/portal/contentl249049. 

H Barbara Tuerkheimer, "Veto by Neglect: The Federal Advisory Committee Act, " Center 

for Study of Responsive Law, based on a speech given Feb 6,1975. 

10 

Hi The Federal Advisory Committee Act, House Report to Accompany, S. 3529, 9 Sept 1972, 54. 

i, Joseph Coon, "Gov't. groups keep quiet on closed-door meetings," ModernHealthcare.com, 23 

Dec. 2009. 

http://www.modernhealthcare.comiarticle/20091223INEWS/312239986# 

'Explanation ofloopholes relies on the Testimony of Sidney A. Shapiro before the House 

Oversight and Government Refonn Committee Subcommittee on Infonnation Policy, 

Census and National Archives, Hearing on the Federal Advisory Committee Act, 2 Apr. 

2008. 

,i Joseph Kahn, "Cheney Refuses to Release Energy Task Force Records," New York Times, 4 

Aug. 2001. 

http://www.nytimes.comI2001/08/04/us/cheney-refuses-to-release-energy-task-forcerecords.htrnl 

,H Robin M. Nazzaro, Testimony before the Subcommittee on Infonnation Policy, Census and 

National Archives, 

Committee on Oversight and Government Refonn, on The Federal Advisory 

Committee Act, 2 Apr. 2008 

viii General Services Administration, "What is the Composition of Committees?" 

www.gsa.gov/portal/content249049. 

"Gardiner Harris and Alex Berenson, "10 Voters on Panel Backing Pain Pills Had Industry 

Ties," New York Times, 25 Feb. 2005. 

http://www.nytimes.coml2005/02/25/politicsI25fda.html? r=O&pagewanted-=print&position= 

'Jeanne Lenzer and Keith Epstein, "The Yaz Men: Members of FDA panel reviewing the 

risks of popular Bayer contraceptive had industry ties," Washington Monthly, 9 Jan. 2012. 

http://www.washingtonmonthly.comltenmiles-sguare/20 1 2/0 lithe yaz men members of fda pan034651.php 

" Diana M. Zuckennan, "FDA Advisory Committees: Does Approval Mean Safety?" A Report 

from National Research Center for Woman & Families, September 2006. 

,i' Michael Halpern, "We Found Independent Experts, The FDA Can Too," The Equation 

Blog, Union of Concerned Scientists, 18 Jun. 2012. http://blog.ucsusa.org!we-found-
93 


Insert offset folio 80 here 80143.080

11 

independent -experts the-fda-cal1-tool 

,;;I "Improving the Use of Science in Regulatory Decision-Making," A Report/i'om the Research 

Integrity Roundtable, The Keystone Center,S Jul. 2012. 
94 

Chairman ISSA. [Presiding.] Thank you. 

I recognize myself for a first round of questioning, and I will 

start with Ms. Wexler. 

FACA reform is something that we intend on marking up in the 

very short near future. One of the challenges I am facing, and it 

is right in your testimony, is that historically you try to limit conflicts, but as the pool of people in many of these areas become 

smaller and smaller, and I don’t want to use the word revolving 

door because sometimes people misunderstand that. 

Getting people into government who have real world experience 

in things that hopefully are not always just funded by government 

in the way of science, and then getting them back into the real 

world and then still being able to use their expertise. Science is a 

good example, but so are our former top officers, military experts 

and so on. 

As we mark the bill up, should we have a bias toward limiting 

conflicts or disclosing conflicts? Because I will tell you I personally 

think that, in this day and age, it may be more a matter of making 

sure there are no hidden agendas possible as the better way to put 

together people who come in with a life of experience, but undoubtedly do have economic interests, or sometimes just pride of historic 

authorship? How do you feel about that? 

Ms. WEXLER. Well, I think disclosure is the floor. We have to 

have disclosure. We have to know about these ties. We also feel 

that agencies have not basically done a very good job to expand the 

pool. 

Chairman ISSA. The panel balance, if you will. 

Ms. WEXLER. Exactly, and to really go out of their way to recruit 

non-conflicted experts. I can only tell you our experience at the 

FDA. The FDA has claimed that it is very difficult sometimes for 

them to fill panels with non-conflicted experts. We sent an email 

to our scientists. We have about 20,000 scientists in our network. 

And in the course of a couple of weeks we got 61 applicants who 

were qualified to serve on FDA panels. They sent their curriculum 

vitae. They were not people who walked off the street; they had absolute essential qualifications. We screened those folks; we sent 

them to FDA; we heard not a word since. 

So I think there is this necessity to recruit from a larger pool. 

I also think that nothing in FACA would prevent presentations 

by those with the kind of real world experience you talk about. 

Presentations, answering questions, not necessarily being around 

for the discussion and the debate if the financial ties are significant. But I do think that we shouldn’t give up on either goal. 

Chairman ISSA. Let me go to Mr. Harper along that line. You 

mentioned sort of Wikiing things in a greater way. As you know, 

this committee used the Madison Project to try to do just that, to 

open up a dialogue on legislation. Ms. Wexler’s comments, do those 

also resonate that when agencies, not just Web casts, their actual 

and store their actual hearings and forums, should we in fact view 

all these proposals and all of the science presented as the starting 

point for comment by, if you will, the professional world, people 

who Ms. Wexler just mentioned, 61 people who were not included 

but who had the CV necessary to be meaningfully part of the markup? 

95 

Mr. HARPER. Yes, I think the ability of the public to contribute 

to discussion is probably unrecognized, or not well recognized in 

Washington, and it is natural that a group of agency officials who 

are trying to put something together, they have a limited sphere 

of knowledge about who their experts would be. 

Chairman ISSA. The usual list of suspects, if you will. 

Mr. HARPER. The usual suspects. So reaching out more broadly 

for FACA, for Federal Advisory Committee membership is a good 

thing to do, and then opening the activities of FACA is quite welcome. 

I served on one, the DHS privacy committee, and I was surprised, I think many of the members were surprised when we were 

doing email discussion that constituted a quorum, or would have 

constituted a quorum, and the members of the committee said let’s 

just publish that. Because if you have a quorum you need to publish, right? 

And staff were essentially, well, no, we need to have less than 

a quorum so we don’t have to publish. The membership of the committee was willing to put it out there for the public to consume and 

observe, and the agency staff, maybe because that was a whole new 

idea, weren’t willing to do that. So sharing more broadly I think 

is always a good thing. 

Chairman ISSA. Ms. Canterbury, you talked about the need for 

a new model. I was just at South by Southwest last weekend. Everybody there is a new model person. Almost everybody there is 

under 30 and they all see the things that we are struggling with, 

things like the DATA Act, as, my goodness, why isn’t that already 

a given? Why is it it is hard? Why would anyone think of having 

data that is published in PDF so that it is inherently unreadable 

by machines, as Mr. Harper said? Do you see it the same way, that 

we shouldn’t even any longer accept the concept that this is hard? 

Ms. CANTERBURY. Well, I think, unfortunately, it is because of 

the way that the Government acquires technology, because of in 

past investments and systems. So, for example, USASpending.gov, 

we spent quite a lot of taxpayer dollars trying to make that portal 

work for showing how the Government spends money, and it 

doesn’t, and it was premised on antiquated systems. 

So your idea in the DATA Act of starting fresh with a better concept, I think we need to educate members and we need to educate 

the Government that these things can be done now at economies 

of scale. 

Chairman ISSA. My time has expired, but would it surprise any 

of you to know that under the stimulus $800 billion or so spending, 

some States made a determination to create, if you will, a system 

in their accounting so that all of their reporting was essentially 

simply opening up to the Federal Government those portals necessary to see the tag metadata and pull it up. In other words, they 

did nothing but set their system up to be readable and, as a result, 

their reporting requirement went to zero. Does that surprise any 

of you that that kind of sunlight, if you will, was possible with 

those States that chose to do it? 

[No audible response.] 

96 

Chairman ISSA. It doesn’t me either, but we plan on having some 

of those States in here so that we can begin thinking in those 

terms. 

I now recognize the ranking member for his questions. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. I want to 

thank the witnesses for their testimony. 

Ms. Canterbury, the FOIA Oversight Implementation Act that 

Chairman Issa and I released yesterday would codify federal law 

in two very important revisions: it would create a legal presumption in favor of disclosure in response to FOIA requests. So let me 

ask you this. That was the standard under Clinton, is that right? 

Ms. CANTERBURY. That is correct. 

Mr. CUMMINGS. And then it was reversed under Bush, is that 

right? 

Ms. CANTERBURY. Yes, sir. 

Mr. CUMMINGS. And so now we are going back to that. And I 

guess you would prefer that, is that right? 

Ms. CANTERBURY. President Obama, as you mentioned, ordered 

a presumption of openness, and that was very welcome in our community. We would very much like to see that a part of the permanent law so that it is not a political decision or a decision based 

on the presidency, but the Congress can decide. 

Mr. CUMMINGS. And how did that work under Clinton? I am just 

curious. That standard. 

Ms. CANTERBURY. I think it was a very good standard and I 

think it was a good start to the kind of reform that we are talking 

about today. But the bill that you propose takes some next steps 

that are really necessary to modernize FOIA. 

Mr. CUMMINGS. Another thing that our bill does is to require 

records to be disclosed under FOIA unless agencies can demonstrate foreseeable harm. In 2009, Attorney General Holder 

issued a memo that rescinded the Bush administration policy. The 

Bush administration policy was for the Justice Department to defend agency decisions to withhold records ‘‘unless they lack a sound 

legal basis or present an unwarranted risk of adverse impact on 

the ability of other agencies to protect other important records,’’ is 

that right? 

Ms. CANTERBURY. That is right, and as it should be, sir. 

Mr. CUMMINGS. And in 2009 Attorney General Holder raised the 

bar, instructed agencies that the Department will defend FOIA denials only if agencies reasonably foresee that disclosure would 

harm an interest protected by one of the statutory exemptions or 

disclosure is prohibited by law, is that correct? 

Ms. CANTERBURY. Yes, sir. 

Mr. CUMMINGS. Ms. Canterbury, you said in your testimony that 

you agree with adding these provisions into the text of the FOIA 

law. Let me ask you this. If agencies are already required to do 

this under these administrative requirements, why is it important 

for Congress to put these provisions in the actual FOIA statute? 

Ms. CANTERBURY. Well, I would say that there is implementation 

and there is enforcement of the President’s directive, which we 

have discussed a bit, the challenges and some of the drawbacks of 

not having an entity that actually does the enforcement, that has 

independence to pursue the agencies and ensure that they are proVerDate Aug 31 2005 11:43 Apr 02, 2013 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6633 C:\DOCS\80143.TXT APRIL
97 

mulgating a presumption of openness and using the foreseeable 

harm standard. 

So your bill will begin to strengthen the Office of Government Information Services in a way that could provide added independence, so we welcome that, of course. But also the difference between our experience with FOIA when there was no presumption 

of openness under the Bush administration, it was a more secretive 

government. It was much more difficult to get FOIA requests. So 

there has been a shift that is demonstrable, that is important; it 

is just that it hasn’t been a shift as large as we might have liked. 

Mr. CUMMINGS. In other words, in the words of the chairman, we 

can do better. 

Ms. CANTERBURY. Yes. We should. 

Mr. CUMMINGS. Although I think he kind of took those words 

from me. 

[Laughter.] 

Mr. CUMMINGS. That just hit me. It sounds familiar. 

In your opinion, will any of these provisions to the FOIA law 

change the way the Department of Justice is currently implementing these standards? 

Ms. CANTERBURY. Would your bill do that? 

Mr. CUMMINGS. Yes. 

Ms. CANTERBURY. I think so. I mean, I think certainly mandating 

that the FOIA regulations be updated, finally, will ensure that we 

finally see a change in that respect. 

Mr. CUMMINGS. Now, do any of the other witnesses have an opinion about whether these standards should be put into the FOIA 

law? Yes, Mr. Schuman. 

Mr. SCHUMAN. They certainly should. There was just an Associated Press story yesterday which looked at implementation, APS 

number of national security and other related questions, and they 

simply weren’t getting answers. And what we have seen in other 

contexts is that oftentimes agencies simply don’t get the memo; 

they, for whatever reason, don’t hear what the administration is 

saying. And if you put it in the law, well, they may not get the 

memo, but they certainly can read the U.S. code. 

Mr. CUMMINGS. Ms. Wexler? I saw you shaking your head. 

Ms. WEXLER. Yes, I agree entirely, and it is the same thing. 

Agency culture always kind of pushes back against transparency. 

And as Chairman Issa talked about, regardless of the administration that you are in, regardless of the political party, this wanting 

to be secret is a systemic problem. 

Mr. CUMMINGS. Mr. Harper? 

Mr. HARPER. Being a non-FOIA expert, I will just adopt the opinions of my colleagues. 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. 

Chairman ISSA. Would the gentleman yield for a second? 

Mr. CUMMINGS. Of course. 

Chairman ISSA. Would all of you say that it is fair that what we 

are really doing with the ranking member’s bill is making a situation in which we are codifying the assumption that if you want to 

know, it is your right to know, rather than, prior to this President, 

if you wanted to know, you had to say why you wanted to know, 

98 

that that would be the most significant permanent change by codifying President Obama’s changes? 

For those who are familiar, that is pretty much what we are really doing with the bill, is making permanent that assumption that 

it is yours unless you can demonstrate why not, rather than, in the 

past, you had to sort of say why you wanted to know something 

that you didn’t yet know. 

Ms. CANTERBURY. It shifts the burden to the agency to show that 

there is an exemption and there is an interest in withholding under 

that exemption. 

Mr. CUMMINGS. I want to thank you very much. 

Chairman ISSA. Thank you, Mr. Ranking Member. 

We now go to the gentleman from Texas, who was here at the 

very start, Mr. Farenthold. 

Mr. FARENTHOLD. Thank you very much, Mr. Chairman. I just 

had a couple of quick questions. 

And just because I am a little bit of a techno geek, I will start 

with you, Mr. Harper. One of the Government’s big success stories, 

I guess was founding the Internet, and it was done through a series of collaborations, RFC process where experts got together and 

came up with the standard that created the Internet today. Your 

push for machine readable data transparency, are we going to be 

able to structure that in a way people aren’t going to be able to 

hide behind multiple legal entities and embedded entities, and is 

the Internet model of kind of going out and collaboratively coming 

up with a set of standards, would that be the way to do it, or do 

you think the Government or some outside organization could do 

those by themselves? 

Mr. HARPER. Well, obviously, data structure is at a very different 

level than TCPIP, the basic language of the Internet. 

Mr. FARENTHOLD. Right. 

Mr. HARPER. And there is actually just a lot of heavy lifting. You 

identify corporate entities as being a challenge, and it is a genuine 

challenge. Who are the recipients of outlays? Well, many corporations have multiple subunits and they use different identifiers and 

so on and so forth, but we can at least get to where we use an open 

identifier system for the recipients of outlays, and that is an important goal for many of my transparency colleagues. 

Where I talk about identifying the agencies, bureaus, programs, 

and projects, they are as interested, more interested in the entities 

that are receiving the outlays, so they can tell stories about the recipients and how they affect the political process that might enhance their transparency. 

Mr. FARENTHOLD. And you envision, perhaps, tying this into FEC 

donor data and the whole nine yards? 

Mr. HARPER. Yes. I think of all the different sets of data as essentially tiles, and you want the tiles to sit adjacent to one another. 

So when you see that an agency or a particular program or project 

is involved, you want to know where the outlays went; you want 

to know who received the money; you also want to know what kind 

of campaign donations they gave so that there can be transparency 

in the relationship among spending and campaign finance. That is 

an important goal. 

99 

Mr. FARENTHOLD. And you think a lot of that can be automated 

if we can get the data in a machine readable format? 

Mr. HARPER. I do. 

Mr. FARENTHOLD. All right, great. 

Ms. Canterbury, let’s go over to you a little bit and talk about 

I am going to call it the culture of secretism that is in the Government. I mean, several of our witnesses have spoke about that. Is 

the DOJ part of the problem in that their enforcement mechanism 

for it is different? I guess, from Texas, I am used to something different. Our open records and open meetings act, the attorney general is pretty aggressive about enforcing that and we lean towards 

disclosure. 

But when you get to the federal level, the amount of delays that 

we are able to, the agencies and then through the whole process, 

do you see any way we can change the culture? Specifically, the 

DOJ, particularly under Mr. Holder, this committee has struggled 

to get information out of him. I can only imagine what the public 

is having to go through. 

Ms. CANTERBURY. Yes, DOJ is a big part of the problem. I don’t 

think that it is specific to this administration in that, as I mentioned in my testimony, there is a true conflict of mission there 

when you have the agency defending in court the other agency’s 

right to withhold under FOIA, they will have a defensive posture, 

and you can see that defensive posture in their own rulemaking. 

So while they haven’t updated their regulations in a very long 

time and, again, not leading in that respect on the presumption of 

openness, but when they proposed rules, we were really shocked 

because of the defensive posture in their own rules, the ways in 

which they would make it harder for requesters to get information 

and the way that they attempted to even make official a policy to 

lie to requesters in circumstances where they had investigative information that could not be revealed. So I think that there are 

some real problems with DOJ and, again, I think that one of the 

ways to deal with that would be go give an independent entity 

more authority to enforce FOIA. 

Mr. FARENTHOLD. I remain concerned of growing government, so 

that is my issue, that we create another agency, another agency, 

and pretty soon you are talking real money. 

Finally, I am a supporter of the chairman and ranking member, 

support of the DATA Act. I am with them on that, but I want to 

ask you, as experts in the field, you all have looked at that. Are 

we missing anything obvious in that? Is there something, as it 

comes up, we need to be talking about? Are there any gotchas or, 

wow, if we didn’t spend any more money, we could do this? Does 

anybody have any suggestion for improving it? Mr. Schuman. 

Mr. SCHUMAN. If anything, the DATA Act solves some of the 

problems that you were mentioning before. For example, it would 

deal with the legal entity identifier problem, so you actually know 

who you are talking with. The DATA Act doesn’t just have applicability for federal spending transparency, it has applicability for federal transparency at large. 

Mr. FARENTHOLD. Okay. 

Ms. CANTERBURY. I would say the House version of the DATA 

Act is extremely comprehensive and I think hits the primary reVerDate Aug 31 2005 11:43 Apr 02, 2013 Jkt 000000 PO 00000 Frm 00103 Fmt 6633 Sfmt 6633 C:\DOCS\80143.TXT APRIL
100 

forms that we would like to see. There are a handful that I cite in 

my written testimony, they are bulleted, and those are the things 

that I hope will, at a minimum, emerge from whatever compromise 

is necessary with the Senate. 

Mr. FARENTHOLD. All right. Well, thank you all very much. I see 

I have gone a little bit over my time. I would like to apologize and 

yield back. 

Chairman ISSA. No problem. 

And just before I go to Ms. Duckworth, the good news is that the 

Senate now is seeing the advantages of recipient reporting, so it is 

likely that the final passage would be a little closer to what went 

out of the House last time, or at least that is what we are discussing. 

Now we recognize the patient gentlelady from Illinois, Ms. 

Duckworth. 

Ms. DUCKWORTH. Thank you, Mr. Chairman. 

Ms. Canterbury, the Open Government Directive instructed 

agencies with large backlogs of FOIA requests to reduce those 

backlogs by 10 percent each year. Yet, only 3 out of the 11 agencies 

with more than 500 backlog requests met that goal in 2012 and 

nearly 60,000 backlog requests remain in these 11 agencies, again, 

falling short of the 10 percent goal. Why do you think agencies are 

struggling to reduce their backlogs? 

Ms. CANTERBURY. Well, I think some of the problems are bureaucratic and systems oriented, so there are some agencies that have 

really taken initiative, like at DHS, where they have prioritized 

streamlining their practices so that they have a system where they 

can prioritize requests coming in. So I think that that can work 

when there is a focus by the agency, but it takes leadership. 

Ms. DUCKWORTH. You also mentioned the importance of watchdogs and for those offices within the Government that have watchdog responsibilities to receive adequate funding. I would be interested to hear your opinion about the expected impact of the sequestration on government transparency, especially with the capability 

of the watchdogs to do their jobs if they are going to be cut. 

Ms. CANTERBURY. I would like to say catastrophic, but I hope 

not, because I hope this Congress is going to deal with the need 

to address government spending in a different way. So I hope that 

those aren’t permanent impacts. But our inspectors general, the Office of Special Counsel, both of those watchdog entities have received a large mandate to do more oversight and accountability 

work, in particular on whistleblower protections. 

So the very excellent legislation that the ranking member and 

the chairman advanced last year to protect federal workers means 

that the Office of Special Counsel has a lot more work coming its 

way and no additional funding for that work, and yet they have 

shown, under their new leadership with Special Counsel Lerner, 

that they are doing extremely effective work for the taxpayers. 

Also, the inspectors general now have responsibilities for the 

next four years to protect contractor and grantee whistleblowers 

who come forward, and we think this is going to do a huge amount 

to increase accountability in contracting and for grants. But, again, 

they receive no additional funding for that, although they did 

101 

under the Recovery Act. It is important to note that they had additional responsibilities there. 

I think all of us would agree that under recovery there was a relatively small amount of waste and fraud because of the approach 

of having an accountability board and giving inspectors general 

more authority to protect whistleblowers, so working together, but 

they had additional funding to do so under the Recovery Act, so we 

need to do that for them. 

Ms. DUCKWORTH. Thank you. 

Do any other members of the panel have any comments on adequate support or funding for whistleblower companies or agencies? 

Mr. SCHUMAN. I would just add, and this is something that the 

chairman and the ranking member testified about before, I think 

it was the Committee on House Administration, the effects of the 

sequester, of course, on Congress are also significant. The legislative support agencies are having their funding cut significantly, as 

are committee staff, and your ability to keep and retain and pay 

the sufficient number and quality of people to do the work that is 

necessary for this Congress to engage in oversight is something 

that will be significantly affected by the sequester. 

Ms. DUCKWORTH. Thank you. 

Mr. Harper? 

Mr. HARPER. This is an example where I tone down my libertarianism, but I don’t necessarily agree with my colleagues on the 

need for more funds. Thank you. 

Ms. DUCKWORTH. Well, Mr. Harper, if there is an increased need 

through FOIA backlogs or there is an increased need for greater 

oversight, how do we do that without funding and providing the resources to do the oversight? 

Mr. HARPER. Well, seeking out the path of least partisanship and 

ideology, hopefully the availability of data going to the deliberations management and results of agencies will reduce the need for 

FOIA inquiries. So I think FOIA will never go away, but I would 

like to see more proactive transparency on the part of agencies so 

that the FOIA requests go down in number and the need for resources will drop as well. 

Ms. DUCKWORTH. Ms. Canterbury? 

Ms. CANTERBURY. I agree with that, but I would also like to disagree with my friend, Mr. Harper. We have friends who I think 

consider themselves libertarians and conservatives who agree that 

there are some parts of Government where it makes sense to invest, because when you invest in those watchdog entities, you return taxpayer dollars that would have been misspent otherwise. 

A great example of this is the huge success we have seen under 

the False Claims Act. Last year, 4 billion taxpayer dollars were returned because of the whistleblower incentives and protections that 

we have under that law. So it has been demonstrated and I think 

when you look at the budget of some of our watchdogs, I mean, the 

Office of Special Council has such a meager budget compared to so 

many others; they have 100 staff, and it is just not adequate. 

Ms. DUCKWORTH. Thank you, Ms. Canterbury. 

I apologize to the chairman for going over my time. 

Chairman ISSA. No, it was well spent. I might note that every 

time the IRS does an audit, statistically it actually gains us money, 

102 

not loses us money. So to my friends, both libertarian and otherwise, that is one of the great questions, is do you cut something 

that has a net productivity; and the IGS, as you know, and we saw 

in the hearing last week, they have a net revenue gain through the 

work they do. I share your concerns that if you cut the people that 

actually reduced waste, you will get more waste and, thus, you will 

get less effective spending. 

Mr. CONNOLLY. Would the chairman yield? 

Chairman ISSA. Well, it is the gentlelady’s time. 

Ms. DUCKWORTH. I will certainly yield. 

Mr. CONNOLLY. I was just going to add to what you were saying, 

Mr. Chairman. A subcommittee on this committee has looked at 

this very question and I am very concerned about money left on the 

table that is owed the U.S. Government but for resources at IRS 

to collect it. So I echo what the chairman has said; I think it is a 

smart investment. 

Chairman ISSA. I thank both the gentlelady and the gentleman. 

We now go to the gentleman from North Carolina, who has been 

patiently waiting at the very bottom of the dais, for five minutes. 

Mr. MEADOWS. Thank you, Mr. Chairman. 

I wanted to follow up on something that was just shared. I think, 

Ms. Canterbury, you were sharing in terms of the legislation that 

is put forth, and you said it is very comprehensive in terms of what 

was put forth or recommended by the House. As we look to reconcile those, what would be the top three areas you would identify 

as areas of concern that we ought to be looking for as we identify 

those? 

Ms. CANTERBURY. Can I have six? 

Mr. MEADOWS. Sure, go ahead and have six. 

Ms. CANTERBURY. Okay, unique identifiers, data standardization, 

Treasury outlay data, real and frequent data quality assessments, 

and an independent board that will have the necessary independence and motivation to implement the DATA Act. 

Mr. MEADOWS. All right. So out of those six, which would be your 

very top priority? 

Ms. CANTERBURY. I think that some things can’t come without 

others, so to sequence, there will need to be attention paid to the 

unique identifiers and the data standardization I think to lay the 

groundwork, and then the matching of the Treasury data and other 

linkages will be far easier to do. 

Mr. MEADOWS. All right. And you mentioned in your testimony, 

you talked about routinely the 20-day rule and how the responses 

are not adequate. I think there was only 8 out of 100 agencies that 

responded with the requested information, and some of those, literally, it was a response that we have your request, that they felt 

like qualified that 20-day fulfillment. Can you characterize the 

problem over the last 10 or 15 years? Has it gotten worse? Has it 

gotten better? You spoke to that a little bit already, but, as we look 

at that, has it gotten progressively worse in terms of that response 

rate? 

Ms. CANTERBURY. I would say that it has gotten worse and gotten better depending upon the administration, but it is a continuing problem. There has never been a success under the 20-day 

limit for any administration, and part of the problem is there really 

103 

are no consequences for violating that. And as I mentioned in my 

written testimony, the agencies, and as you mentioned, like to send 

a letter and then that qualifies. If they send a letter saying, 

thanks, we got your request, we are working on it. 

And we disagree with that and our friends at the Citizens for 

Ethics and Responsibility in Washington do too; they brought a 

lawsuit against the Federal Elections Commission and the results 

of that will be very interesting. I think that agencies might actually come to Congress and ask for more time if they lose that suit. 

We would object and say that there is a way to do that in most 

circumstances and there is a way to extend under the law, as well. 

So I think moving away from the time limit would be a mistake 

but, rather, addressing what are your systems problems. 

Mr. MEADOWS. All right. And you mentioned the one thing, and 

I want to follow up on that, about penalties and enforcement, because we can pass all kinds of regulation laws and create agencies 

to do this, and without an enforcement mechanism nothing really 

changes. So there is the defer and delay kind of mentality that is 

pervasive within many agencies in Government. So what kind of 

penalty and enforcement mechanism, other than just strictly 

watchdog or overseeing, would you recommend? 

Ms. CANTERBURY. Well, I think that if the agency had to pay for 

its appeals, that might be a disincentive to delay and to deny in 

the firsthand, and then we have more than 50 percent of our appeals, the information is actually disclosed, and it should not require an appeal. It seems to for many agencies; you know you are 

going to make a request and then you will have to appeal to have 

a shot at getting the information. So if the agencies had to pay out 

of their own budgets, that might be a disincentive. 

Mr. MEADOWS. And did I pick up in your earlier testimony or response to the question that you believe that oversight of this particular request would best not be under the Department of Justice, 

just because of conflict of interest? 

Ms. CANTERBURY. That is absolutely right, sir. 

Mr. MEADOWS. Mr. Harper, you were saying earlier, in my last 

remaining questions, in terms of not needing money and the transparency of putting things on the Internet or where it is focused 

there, what percentage of requests do you think it might reduce if 

we had that kind of transparency? Or on a scale of 1 to 10, and 

let me make it easier, with 10 being the best, where would you 

rank that in terms of your recommendation there? 

Mr. HARPER. It is a very hard question to answer seriously or 

honestly because there are some different types of FOIA requests. 

But I would guess that you might be able to cut FOIA by 50 percent, something like that, if there was consistent reporting of deliberations, management, results. There would be much less need for 

FOIA requests. They would still definitely be there, though. 

Mr. MEADOWS. All right. Thank you. 

I yield back. 

Mr. DUNCAN. [Presiding.] Thank you very much. 

Mr. Clay. 

Mr. CLAY. Thank you, Mr. Chairman. 

Let me thank the witnesses for their testimony and I will start 

with Ms. Wexler. 

104 

You mentioned in your testimony that the GAO has found that 

agencies often improperly designate advisory committee members 

to avoid conflict of interest requirements. Agencies complain about 

the administrative burden imposed by these requirements. These 

requirements, however, are in place for a reason. Advisory committees provide recommendations on important issues such as drug 

safety, children’s health, and national security; and if a committee 

member has a conflict, that member could influence government 

policy for personal gain. 

What is the danger of allowing a committee member to serve 

without disclosing a conflict? 

Ms. WEXLER. Well, at the very least, the danger is that the conflict becomes part of the media reports about the deliberations, 

which we have seen happen repeatedly. So the public trust is shaken. Certainly, there have been situations. The world I know best 

is the world of FDA, where votes on drugs like Yaz and Vioxx and 

Bextra, a difference was made because of the conflicted members 

on those panels, particularly in the case of Yaz, a contraceptive 

later found to be quite harmful. So I think that there are real 

world problems with conflicted experts. 

There is also the larger problem when a vote is not necessarily 

effected. But a conflicted expert because what panels just generally 

strive for is consensus, so they operate more like juries than anything else. If you have somebody with a financial stake, with skin 

in the game, they are going to be very influential when it comes 

to making a difference, making a case for their point of view within 

these deliberations. Often, other panelists may not feel that they 

are as knowledgeable; they may look to this person, particularly if 

he has a lot of expertise, and expertise is something that comes 

with financial ties, we understand that. 

So that there are real dangers, both the real world kind and certainly in the terms of the loss of public trust. 

Mr. CLAY. And I am sure that raises the antennas of stakeholders and other committee members who know what is going on. 

The Federal Advisory Committee Act amendments, which I am reintroducing today, would require that advisory committee members 

who are appointed because of their individual expertise comply 

with financial disclosure and other ethics requirements. Do you believe this clarification will help ensure that agencies don’t allow 

members with conflicts of interest to avoid disclosing their conflicts? 

Ms. WEXLER. Well, it will certainly help with the problem of 

agencies mislabeling special Government employees who do come 

under the Ethics in Government Act and representatives who are 

considered stakeholders and, therefore, their financial disclosure is 

not required. They are presumed, in a way, to advocate for a specific agenda. So to the extent that it clarifies that agencies must 

not use this kind of classification system to evade those kind of disclosure requirements, yes, it would be helpful. 

Mr. CLAY. The FACA amendments also include a provision which 

was recommended in part by the Union of Concerned Scientists. 

That provision would require that agencies provide an opportunity 

for members of the public to suggest potential committee members. 

105 

How do you believe public participation in the selection of advisory 

committees will reduce conflicts of interests on these committees? 

Ms. WEXLER. Well, I think that it means that you are essentially 

engaging the services of the public to enrich the activities of agencies. Agencies often feel burdened about filling these slots on advisory panels, and I think sometimes justifiably so. So basically what 

you are saying is let’s consult the public about experts we may not 

know about. It would diversify the pool; you would be much more 

likely to get people without financial ties because you would just 

go to a larger arena. It is a very good idea, I think. 

Mr. CLAY. Mr. Schuman, any comments? 

Mr. SCHUMAN. I agree with that. I also think that the provision 

in there that covers the subcommittees, which is one of the major 

loopholes, as you know, since, of course, it is your legislation. For 

the subcommittees, of course, oftentimes work is pushed down to 

that level so that there is no disclosure that occurs for meeting 

minutes, for records. And, relatedly, when we have looked at the 

federal advisory committees, we found that many of them have 

simply never held a public meeting. In the entire time that they 

have existed, they have never had a single public meeting. 

One thing that we spend a fair amount of time doing is looking 

through the FACA database that contains a list of all of the committees, all the meetings they have had, whether public or private, 

and all the members, and we have integrated that into a Web site 

that we have called Influence Explorer that allows you to see how 

organizations and entities that are lobbying on an issue, that are 

giving campaign donations on an issue will also try to place people 

on advisory committees and then, of course, those committees don’t 

necessarily meet in public. So this is tremendous legislation and I 

think it is great. 

Mr. CLAY. Thank you so much, Mr. Chairman. My time is up. 

Mr. MEADOWS. [Presiding.] Thank you. 

The Chair recognizes the gentleman from Kentucky, Mr. Massie, 

for five minutes. 

Mr. MASSIE. Thank you, Mr. Chairman. 

In 2008, Bloomberg News had to file a lawsuit to force the Federal Reserve Responder Request to reveal the identities of the firms 

for which it had provided guarantees during the late 2000s, during 

the financial crisis. Nearly three years later, and after considerable 

expense to the taxpayer and use of our court system, the Federal 

Reserve finally relented and disclosed those names. Should the 

Freedom of Information Act be updated to clarify unambiguously 

that the Federal Reserve is subject to FOIA? 

And anybody is welcome to respond to that. 

Ms. CANTERBURY. Yes, I agree. And I think that there are other 

loopholes. Of course, Congress is not subject to FOIA either. 

Mr. MASSIE. Mr. Harper? 

Mr. HARPER. Yes, the Fed should be subject to FOIA. I will reserve whether Congress should be subject to FOIA because it is so 

very different from the federal executive branch. 

Mr. MASSIE. Mr. Schuman? 

Mr. SCHUMAN. I would just say that we also see, whether it is 

the Fed generally or with specific aspects of legislation, there are 

oftentimes riders that are put into bills that work their way 

106 

through Congress that create exemptions to FOIA, and we see this 

with spending by entities like the Fed or we see this with national 

security or with matters that are entirely unrelated to sensitive 

issues whatsoever, and we believe, and I think others do as well, 

that these attempts to create loopholes in FOIA are often too large 

or not appropriately vetted, and we think this is another issue that 

should go through regular channels within Congress to make sure 

these loopholes aren’t put in a way that is either unintentionally 

large or defeats the purpose of FOIA. 

Mr. MASSIE. Ms. Wexler? 

Ms. WEXLER. Yes. And I think that there are enough exemptions 

now in current FOIA law that I don’t think we would have to worry 

about inadvertently disclosing through the Federal Reserve something that really legitimately should not be disclosed. 

Mr. MASSIE. So pursuing those sort of loopholes and exemptions, 

I am concerned, is there enough visibility into federal money after 

it gets, for instance, block granted to the States or when Congress 

otherwise passes federal dollars to municipalities or even private 

organizations to spend that money, do we have enough track of 

how that money is being spent, for instance, on agricultural subsidies or subsidies for insurance? Mr. Schuman? 

Mr. SCHUMAN. The short answer is no. When you look at the 

data that is reported to the public, as our Clear Spending Report 

has found, it is unreliable. When you look at the new reporting 

that was required under the Recovery Act, what we found is it actually prompted States and localities to create transparency measures that they never had before. They started thinking about these 

issues in different kinds of ways and they actually became more 

open and accountable. 

But as things exist now, while some States do a good job, some 

States do a bad job, as a general rule you really can’t follow the 

money all the way down. You can’t see where it comes from, which 

is what Jim was talking about before in terms of how money goes 

through the legislative process in the appropriations and the obligation process, and you can’t see it all the way to the end. That 

is why you need subrecipient and subgrantee reporting, which is 

some of the provisions that the DATA Act contains. 

Mr. MASSIE. Mr. Harper? 

Mr. HARPER. I agree that there is not enough transparency in ultimate recipient information. 

Mr. MASSIE. Is or is not? 

Mr. HARPER. Is not enough transparency in ultimate recipient information. You want to be able to see all the way through the process; agency, bureau, program, project, the obligation grant, the outlay, the recipient, the subrecipient. Just to be clear, or head off a 

concern people may have, you don’t want to invade privacy. That 

is, if it is a benefits program, we are not talking about publishing 

the names of people who get Social Security checks or other public 

benefits. But when it comes to corporate entities or organizational 

units that receive outlays of Federal funds ultimately, we want 

that data. 

Mr. MASSIE. That is a good lead-in to my final question. Without 

violating privacy concerns, is there a role for more sunlight in disclosure for disclosing SSI and disability fraud, which we all know 

107 

exists but is hard to get our hands around? Is there a role, is there 

a way to expose some of that fraud without disclosing personal 

data? Mr. Harper? 

Mr. HARPER. I would say that you don’t want to give transparency to personal information of recipients of SSI disability. The 

way you would probably want to do it is through data mining. 

There are probably common forms of fraud on these systems, and 

once you learn to recognize those frauds in your data, you can look 

for them happening again. Credit cards do this. When somebody 

spends $5 at a gas station and $5,000 at the Best Buy, that is them 

testing a credit card to see if it is still live so they can go buy electronics. That kind of pattern is the thing you might be able to see 

in SSI data. 

Mr. MASSIE. Thank you very much. My time has expired. I yield 

back. 

Chairman ISSA. [Presiding.] I thank the gentleman. 

We now go to the gentleman from Illinois. 

Mr. CLAY. Can I go again? 

Chairman ISSA. No, you may not go again, not unless you want 

the gentleman from Illinois to chastise you. 

Mr. Davis. 

Mr. DAVIS. Thank you very much, Mr. Chairman. We often accede to the request of the gentleman from Missouri, but we will go 

right ahead. 

Chairman ISSA. If you have any time left over, you can give it 

to him, right? 

Mr. DAVIS. All right. 

Let me thank our witnesses for being here. I think this is a very 

important topic of discussion. 

Ms. Canterbury, under FOIA, an agency must waive or reduce 

the fees for responding to a FOIA request if a requester can show 

that disclosure of the records being sought will contribute to the 

public understanding of the operation of activities of the Government. 

The Associated Press published an article on Monday, ‘‘U.S. Citing National Security in Censoring Public Records More Than Ever 

Since President Obama’s Election.’’ The article highlights the fact 

that the CIA denied every request for fee waivers in 2012. According to the CIA’s FOIA report, it received nine requests for waivers. 

It seems kind of difficult to believe that not one of those requests 

warranted a fee waiver. Does this raise any concerns in your mind? 

Ms. CANTERBURY. It certainly does. I think that you are absolutely right that it couldn’t possibly be that only at the CIA there 

is no public interest in the disclosure. So it is part of the larger 

pattern that I mentioned in this national security state, where 

there is a real imbalance and illegitimate secrecy that is growing. 

So I think that it is important to look really carefully and I think 

for Congress to stand up and to not allow claims of national security to just blanketly cover what should be public, what Congress 

should have a right to. So I think that there needs to be far more 

oversight. 

Mr. DAVIS. FOIA also allows requesters to obtain expedited processing of a request if the requester can show a compelling need for 

a quick response. The CIA failed to grant a single request for an 

108 

expedited FOIA response in 2012, although it received 33 such requests. Do you believe that there should be additional oversight 

into the CIA’s denial of expedited urgent FOIA requests and fee 

waivers? 

Ms. CANTERBURY. Yes. I think they should be asked to show 

their justifications. I think also we have seen a problem with expedited requests. Now, these are requests when there is some urgent 

need based on health and safety issues or other concerns, so it is 

asking the agency to expedite that request, and yet, at the State 

Department, they have an average of more than 900 days in response to expedited requests. 

Mr. DAVIS. It seems as though there are some people who might 

think that the CIA should have a certain amount of exemptions because of the nature of their work and the nature of what they do. 

Do you still hold to your notion and your idea that, yes, they 

should be responding a bit more because this is information that 

the public should be aware of? 

Ms. CANTERBURY. Congressman, it seems that there is a sense of 

impunity. There certainly are legitimate secrets and there is intelligence work at the CIA which should be withheld, and there are 

adequate exemptions and exclusions under FOIA to allow for them 

to classify and keep our national secrets that are legitimate. However, fee waivers and delays in responding to requests do not comport with their practical use and proper use of the exclusions they 

have. 

Mr. DAVIS. Well, let me just say I agree with your assessment 

and I too recognize that there is information that must be kept secret in the arena of national security, but they also should be more 

forthcoming. My time has expired, so I thank you very much. 

And I yield back, Mr. Chairman. 

Chairman ISSA. And I thank the gentleman for making that 

point about justice delayed is justice denied, as we all know. 

We now go to the gentleman from Tennessee, Mr. Duncan. 

Mr. DUNCAN. Thank you very much, Mr. Chairman, and thank 

you for calling this hearing. 

Ms. Canterbury, I appreciate and agree with your testimony that 

secrecy has grown with the growth of the national security state. 

This committee has done some great work through all the various 

inspectors general, but I recall that a few months after 9/11 The 

Wall Street Journal had an editorial in which they noticed that 

every department and agency had sent up new requests based on 

security or national security, and The Wall Street Journal said a 

wise legislative policy from now on would be to give twice the 

weight and four times the scrutiny to any request that had the 

word security attached to it because we seem to excuse things that 

perhaps we shouldn’t excuse just because they throw in the words 

national security. 

Mr. Schuman, I appreciate your endorsement of my bill on the 

Presidential Library Disclosure Act. I remember President Clinton, 

on his last day in office, pardoned Mark Rich, who had fled the 

Country to evade $40 million in taxes, and it turned out that was 

done just after his ex-wife had given a $400,000 contribution to the 

Clinton presidential library. My bill would not restrict contributions in any way. 

109 

I think there was some later information about a foreign government giving a contribution also in return for some favorable treatment, but it wouldn’t restrict contributions, but it would at least 

provide for disclosure of contributions, and I think that is a very 

important thing and I think maybe we are going to take that up 

again here in a few days. It was passed by the House once, and 

passed overwhelmingly by a very large bipartisan vote. 

Ms. Wexler, let me ask you this. I heard what the chairman said 

about not using the words revolving door, and I understand his 

point that you don’t want to limit these advisory commissions and 

keep people off who maybe have some good knowledge, but it seems 

to me that far too many federal contracts, almost all of them, seem 

to be some sort of sweetheart insider deal because all the Defense 

contractors hire all these retired admirals and generals, the big 

giant drug companies hire these former high level FDA officials, 

and it seems to go on in every department and agency. 

Do you think there should be, if not along with disclosure, maybe 

a requirement that these departments and agencies should be required to also include on these panels some people that definitely 

do not have these conflicts of interest, or they should be required 

to disclose if they give a contract to somebody that is a former high 

level employee? It seems to me there needs to be some sort of restrictions or limitations on this in some way. 

Ms. WEXLER. Representative Duncan, I think the idea of mandating a certain number of non-conflicted experts on advisory panels is a wonderful idea. It runs the gamut, but too often we do have 

advisory panels doing important and substantive work, and too 

many members with financial ties to the entities that they review 

are on those panels. So I think the idea that you would sort of have 

a bar for including non-conflicted experts makes a lot of sense. 

Mr. DUNCAN. Does your group, have they done studies of federal 

contracts and how many conflicts there are in all of those federal 

contracts? 

Ms. WEXLER. No, we have not. 

Ms. CANTERBURY. Sir? 

Mr. DUNCAN. I think that would be something you should look 

into, possibly. 

Ms. CANTERBURY. We have done quite a bit of research on the 

revolving door as an issue of too much coziness between the regulated and the regulator, between those who are receiving Government money and those who are in the Government, and most recently we did a report on this issue at the Securities and Exchange 

Commission, where there is some information that is not easy to 

obtain but through FOIAs we were able to get more information 

than is available at other agencies about who was coming and 

going from the SEC. It is a particular problem with contracts. 

I think your suggestion is an excellent one. I think that showing 

the leadership there, it would be really probably not surprising to 

the American people to see how many people come in and out of 

government, so I agree with the chairman that transparency is a 

very good way to deal with that issue initially, and we have a long 

way to have adequate disclosure, but then also having some limits. 

It is reasonable. In many other contexts we have a cooling off period for Government employees, so I would suggest that we should 

110 

have that in the context of contracts and also regulated entities as 

well. 

Mr. DUNCAN. Could I ask one last thing that would just require 

a one-word answer? 

Chairman ISSA. The gentleman may have an additional 30 seconds. 

Mr. DUNCAN. Is there anyone on the panel who thinks there is 

less secrecy now than when FOIA was passed in 1966? 

[Laughter.] 

Ms. CANTERBURY. Absolutely yes, there is less secrecy than in 

1966, and part of that is a function of the technology that is available today, so a lot of the proactive disclosure that we are seeing 

is just something that was not possible in 1966, yet the concern of 

the national security state growing. 

Mr. DUNCAN. All right. Thank you. 

Thank you, Mr. Chairman. 

Chairman ISSA. I never thought I would see so much silence on 

a question like that. 

We now go to the gentlelady from New York for five minutes, 

Mrs. Maloney. 

Mrs. MALONEY. I thank all the panelists and I do want to comment on the project, Ms. Canterbury, on government oversight, 

which identified FOIA online as a best practice in the report you 

released last week entitled, Best Practices for Openness and Accountability. I was pleased to see that was a bill that I authored 

many years ago and to see that you support it, and also the work 

that we are doing with pilot projects on it. 

I wanted to follow up on Mr. Duncan’s question. Members of 

Congress and our staff, there is a two-year cooling off period. I 

thought agencies had the same law, don’t they? If you work in a 

high position in an agency, don’t you have a revolving door requirement that you cannot go right back into that industry within two 

years? That was my understanding. 

Ms. CANTERBURY. There are various restrictions, particularly 

with regard to lobbying and particularly with regard to specific interests, so if it is something that you worked on personally or substantially. So there are many different ways in which people can 

evade having to have a real cooling off period. There are also waivers that are given by ethics officers on a regular basis, and those 

waivers are not made public in many cases. 

Mrs. MALONEY. And following up on his other question about 

contracts being ‘‘rigged,’’ couldn’t you just require that everything 

be competitively bid, and the low bidder who is qualified get the 

contract? Why do you have to have these negotiated contracts that 

have, shall we say, shadows on them? 

Ms. CANTERBURY. It has been a particular problem in our contingency programs, so our work in Afghanistan and Iraq there has 

been, as you know, a real dearth of competitiveness in contracts. 

Mrs. MALONEY. Well, I tell you, I began this week by going to 

a company that was opening up in my district to combat 

cybersecurity, and cybersecurity, in my opinion, is the biggest 

threat to our homeland security, to our economic security, and we 

have to do something about it, and, Mr. Ranking Member and Mr. 

111 

Chairman, we should have some hearings on cybersecurity and 

what we can do about it. 

But, in any event, there are stories that they are hacking into 

major corporations, stealing our intellectual property, hacking into 

the military, hacking into members of Congress. Could you each 

comment on what you think we could do to protect the privacy of 

our American firms and, really, American citizens from this ongoing threat? 

Ms. CANTERBURY. Just a word of caution on cybersecurity and 

those initiatives and finding a good balance between the need to 

have, obviously, more collaboration, more information sharing, a 

better system to prevent cybersecurity threats that are significant 

to our Country and to individuals. But that must be balanced with 

a real concern for privacy, civil liberties, whistleblower protections, 

and the people’s right to know. 

So, like in other contexts that we have discussed today in the national security sphere, there is a knee-jerk reaction to then make 

secret anything that has to do with information related to secrecy, 

and the cybersecurity bills that were proposed in the last Congress, 

and the one that has just been reintroduced in the House, have an 

unacceptable level of secrecy and encroachments on rights. 

Mrs. MALONEY. Well, I just want to say we have to find the balance. The real wealth of this Nation is the ideas of our people, our 

research. We had a meeting with NASDAQ and they were telling 

us that people are not only hacking into accounts and trading people’s accounts, totally falsifying. It is out of control. 

So this is an incredible challenge for our Country and I think it 

should be something we can agree on, Mr. Chairman, that we don’t 

like this hacking and we have to stop it, and I think this is one 

thing we could pass in this Congress if we could figure it out. So 

I would like to hear your ideas on it, on how we should go forward 

and what we should be doing. 

Mr. HARPER. For my part, I agree with Ms. Canterbury’s point 

about the privacy concerns that are evident in much of the legislation we have seen last year. For me, cybersecurity is really thousands of different problems that will be handled by hundreds of 

thousands of different actors over decades. We will never get to 

perfect security, just like we don’t have perfect physical security. 

So what I think Congress could best do is really actually assign 

responsibility to the entities that can handle cybersecurity problems. So I don’t think that the Federal Government should actually 

provide security for the private sector. When a business has failed 

to secure its own assets and it loses those assets, that is an illustration of poor management on the part of that business and that 

business should pay the cost. 

In general, with so much of our cyber infrastructure held in the 

private sector, it should be the responsibility of the private sector 

to secure those assets and it should pay the costs when it fails. Obviously, the Government has a good deal of information, being a 

large entity itself and a buyer of technology, so it has a role and 

it can foster cybersecurity and good cybersecurity practices, but I 

would place the onus on the private sector to secure its assets. 

Mrs. MALONEY. Well, may I have an additional 30 seconds? 

Chairman ISSA. Of course. 

112 

Mrs. MALONEY. And time for the other two to answer? 

Private firms want to secure their assets, and I am not saying 

that Government should. They should secure them; they just don’t 

know how to do it. We don’t have the technology to help our private 

sector or our Pentagon or our individual citizens to secure their information. 

Anyway, I would like to hear other ideas. Thank you so much; 

it is very helpful. 

Mr. SCHUMAN. Just very briefly. So our colleague, Tom Blanton, 

often talks about the idea of the way we try to protect national security now is that we have a lot of secrets and we try to build a 

wall around them. But with so many things, it is very difficult to 

protect. What we need to do is figure out what is critical and protect that, and the other things that are less critical, it is not worth 

devoting the resources to and it runs into these problems. 

In terms of how to help the private sector, some of it is the same 

way. We look at government and we have government systems 

technologies that are 30 or 40 years old, where the system infrastructure isn’t capable; where we have inflexible hiring practices, 

so it is difficult to bring in people who are capable and competent 

to handle these issues. 

Within Government we need to look at hiring, we need to look 

at being able to retain the best and the brightest. When it comes 

to the private sector we need to look at providing models, providing 

examples, showing private sector folks part of the way in which 

they need to protect themselves. It is not something Government 

can do for them. 

Mrs. MALONEY. I have talked to some members of the military. 

They tell me the private sector is way ahead of us, meaning Government; that the private sector is doing a better job than we are. 

That was at a meeting where they were learning from the private 

sector how to better secure our situation and our information. 

Thank you. 

And Ms. Wexler? 

Ms. WEXLER. You know, I agree with Mr. Harper and I agree 

with all of the panelists. I think this is a very important problem. 

It is going to take more than one way of solving it. Certainly, the 

private sector does have a responsibility to protect its own assets, 

but there is nothing wrong with the Government learning from the 

private sector as they develop innovative new ways to protect, nor 

is there anything wrong with the Government developing technology that can then be used by the private sector for the purposes 

of protection, but always with the idea that civil liberties and privacy are also respected. 

Mrs. MALONEY. Thank you. I yield back. 

Chairman ISSA. I thank the gentlelady. 

We now go to the gentleman from Illinois, Mr. DeSantis. 

Mr. DESANTIS. Florida. 

Chairman ISSA. Oh, I am sorry. 

Mr. DESANTIS. Appreciate it, Mr. Chairman. We are enjoying 

some better weather now. 

Chairman ISSA. We have been doing real well with Illinois on 

this side, but, yes, the gentleman from Florida. 

113 

Mr. DESANTIS. We have a better record with our teams in the 

World Series than Chicago does. 

Mr. Harper, from Cato’s perspective, are you guys interested in 

transparency for transparency’s sake? Well, I guess that is obviously good, but do you believe that more transparency will help actually reduce the size and scope of Government? 

Mr. HARPER. I do. It is my belief that it will. When people see 

where the dollars are going, they will realize this can be better 

handled in our States, it can be better handled in our localities, or 

we can just handle it ourselves. 

Now, I characterize the transparency issue as sort of a bet between myself, libertarians, conservatives, and liberals and progressives because if transparency causes government programs to work 

better and it actually rings waste, fraud, and abuse out of programs, that is fine. I will take a better running government over 

a government that is large and failing. 

So that is how I view transparency as a pan-ideological issue. I 

do think that it will result in things that we want as advocates of 

limited government. But if I am wrong, I think I still win. 

Mr. DESANTIS. Absolutely. In terms of the CFPB with DoddFrank, have you looked at how effective FOIA or some of these 

other mechanisms will be? Because it seems like a lot of the financial information can be exempt. And then this is an institution that 

purports to not really be accountable to Congress and they have a 

different source of funding. I am just worried that this is an agency 

that is not going to be held accountable. 

Ms. CANTERBURY. We have done some work looking at the Consumer Financial Protection Bureau, and they have actually been a 

model for openness in different initiatives that they have had. They 

made meetings that they were having with outside interests, 

whether they were regulated interests or public interest groups like 

ours, they made all of those meetings public; they created a credit 

card complaints database that has been lauded as very helpful to 

consumers. So we really appreciated the amount of openness that 

they have there. 

We also have been concerned that they were required, essentially, to adopt the same confidentiality procedures and rules that 

you mentioned that are used by the other financial regulators in 

order to receive information, and this was something that we were 

made aware of when they were standing up the agency, and we 

have raised concerns about the extraordinary claims of confidentiality that are in financial regulated information. I think that it 

is an area of an overreach. There is really another system that is 

outside of FOIA and outside of classified information, so that if a 

company simply says I would like for this to be confidential, they 

are granted it. 

Mr. DESANTIS. Great. 

Mr. Harper, in your testimony you talked about the grant-making reform, how there was, like, a counter-argument about peer review, and you said that the transparency was more important. 

When I read that, and I hadn’t been that familiar with this, to me, 

I didn’t see that that was even a decent argument, but I probably 

don’t know enough about it. So what is this argument about more 

114 

transparency in the grant-making process will have negative effects 

on independent peer review? 

Mr. HARPER. Well, the argument, and it is not my argument, but 

it is one I will try to give credit to. The argument is that peer review is often done anonymously, so colleagues who have professional relationships will review each other’s papers, but do so anonymously so that they can speak their minds about the quality of 

research without threatening the professional relationship. 

So I take it that the argument is that if there is transparency 

as to who is doing reviews, then you are sort of upsetting longstanding traditions with regard to peer review. So that is a real 

issue; it is definitely something to think through. There might be 

a solution. I don’t know the field that well, but there might be a 

solution where they use an identifier so that we can know that the 

same person did 500 reviews in a year, to take an exaggerated 

case, but nobody knows exactly who that was. 

So I think there are probably ways of solving that problem. So 

it is a genuine thing to talk through, the balance between transparency and anonymity. 

Mr. DESANTIS. And then just, finally, you mentioned the need for 

an organizational chart for the Federal Government. Do we know 

how many actual offices and agencies exist within the Federal Government? I guess where are we falling short? Why hasn’t this been 

done so far? 

Mr. HARPER. It is boggling to me that there isn’t a machine readable Federal Government organization chart. We should be able to 

see what agencies exist, what bureaus exist, what programs, and 

what projects so that we can tie legislation to all those things when 

you in Congress are trying to effect something; so that we can tie 

spending to those things so we can know this happened because of 

a certain program in a certain bureau in a certain agency. That 

doesn’t exist. 

There are at least four different representations of how the Government is organized. Each is different; each is published in PDF, 

so I can’t use a computer on it. Now, the best we have is from NST, 

which produced a pretty darn good organization chart that just 

goes to the bureau level, just the simplest stuff, agencies and bureaus. That is what we are using for our legislative markup now, 

but there should be a complete Federal Government organization 

chart. 

Mr. DESANTIS. Absolutely. Thank you. 

Chairman ISSA. Would the gentleman yield? 

Mr. DESANTIS. Yes. 

Chairman ISSA. There is a story that I think says a lot from the 

private sector. Until a few years ago, taxi drivers would hear on 

a radio that there was somebody who wanted to be picked up at 

a certain address, and the most aggressive taxi driver would get it 

by saying I am right around the corner. As taxi companies began 

putting GPS systems in the taxis, they could figure out who was 

actually the closest and it dramatically changed the response to the 

consumer. 

I think, to a certain extent, the Government’s willingness to have 

us actually be able to see what they are doing, versus the printed 

115 

org charts that say what they say they are going to do, would probably be equally illustrative. 

Ms. CANTERBURY. I hope that improves safety on the roads, too. 

Chairman ISSA. I think it has. As a taxi town where you just 

walk out and get one, we are not as aware of what it is like when 

you have to call for a taxi, but some of us are. 

With that, would the gentleman from Virginia seek to be recognized? 

Mr. CONNOLLY. I would. 

Chairman ISSA. I recognize you. 

Mr. CONNOLLY. Thank you, Mr. Chairman. I knew you would. 

Thank you so much and thanks for holding this hearing, because 

I think it is a really important one. 

Let me pick up on my colleague’s comments, the last questioner, 

on grants, because obviously the desire to have more transparency 

in the award of grants and to make sure that it is an open and 

competitive process is a legitimate concern. This committee considered some legislation previously called the Grant Act designed to 

do that, but I think it had some unintended consequences. 

Ms. Wexler, have you looked at that Act and does it, I think unintentionally, raise some flags for the academic community and for 

the competitive process itself? 

Ms. WEXLER. Yes, that is true, and we understand the goal here, 

and the goal is commendable. Let me use the only analogy I can. 

When I have written a book; I have submitted my book proposal 

to the publisher, who has accepted the book. I do not want my book 

proposal to be part of the public record because it is the recipe I 

have for writing a book that is uniquely mine, that was a product 

of my imagination and my work. 

So I think what we want to make sure is that even for those 

grant proposals that are accepted by the NSF, by the National 

Science Foundation, that in the interest of transparency we don’t 

violate someone’s rights to intellectual property. I think that would 

discourage innovation and it would not work. 

I think it is very important, and I think we can manage this and 

work with this so that, I think you have suggested, abstracts would 

be available. As you know, there is an abstract database that the 

NSF has and it is pretty comprehensive. You look at those abstracts and they tell you quite a bit. I don’t think we are ever going 

to get in a situation where the American public looks at a bunch 

of abstracts or even full proposals from the NSF and says, you 

know, this one is great and you should really not do this one. 

However, I do think that Congress has a legitimate oversight role 

here, and we would welcome working with you on ways to figure 

this out to ensure the intellectual property rights of those who submit proposals, as well as make sure that there is enough transparency for Congress to have the legitimate oversight role that it 

should have. As for the same thing of the identity of peer reviewers, that we be very careful about ensuring that no one particular 

grant is linked to any particular peer reviewer. Again, it is the 

whole notion of that person thinking that that identity will be revealed, may go easy on that applicant; may go hard, depending on 

their personal relationship. 

116 

I think what we are most interested in is what Mr. Harper mentioned, really, the patterns. Are particular institutions being overly 

represented on peer review panels in general? Are particular professions over-representative; particular regions? 

Mr. CONNOLLY. I am going to have to interrupt you because my 

time is short. 

Ms. WEXLER. I am sorry. 

Mr. CONNOLLY. But thank you, Ms. Wexler. I share your concern. 

I also hope we could work it out so that actually we can get at the 

goal here, which is transparency, more openness to ensure this fair 

competition without compromising proprietary information, intellectual property, and, frankly, without always showing some of our 

proprietary research to other watching eyes with whom we may not 

want to share that kind of scientific research. 

The Supreme Court had a ruling last year, the Milner decision, 

or in 2011, that significantly narrowed the scope of Exemption 2 

in FOIA. Some in the IG community, particularly, have raised concerns that that decision may hinder certain critical operations, for 

example, with respect to FISMA. And the chairman has reintroduced a FISMA reauthorization I am proud to support, along with 

the ranking member, Mr. Cummings, and they have expressed 

some concerns that that would preclude the sharing of 

vulnerabilities in the Federal IT system among agencies. 

Ms. Canterbury and Mr. Schuman, I wonder if you want to comment real quickly. 

Ms. CANTERBURY. We don’t always disagree; we often agree with 

the IG, but in this case we disagree. We think that they have the 

exemptions that they need to withhold the information that they 

must when they are doing the reports under FISMA. We have had 

conversations with them about this. 

Mr. CONNOLLY. So you are not worried about Milner? 

Ms. CANTERBURY. Not with respect to their FISMA reports. 

There have been recent reports issued by inspectors general in response to FISMA which they were able to make redactions and also 

provide mostly public information. 

Mr. CONNOLLY. If the chairman would just indulge just one brief, 

brief followup. 

Anyone concerned about Milner? 

[No audible response.] 

Mr. CONNOLLY. No one. All right. 

Thank you, Mr. Chairman. 

Chairman ISSA. Thank you. 

We now go to the gentleman from Michigan, Mr. Amash. 

Mr. AMASH. Thank you, Mr. Chairman, and thanks to our panel 

for being here today. 

Ms. Canterbury, you brought up the cybersecurity bills and you 

mentioned CSPA. I don’t know if you mentioned the name CSPA, 

but CSPA is the cybersecurity bill that was recently introduced. I 

view it as a tremendous threat to our Fourth Amendment protections because it is the Government subsidizing privacy violations, 

and it does this by providing immunity from liability for businesses 

and other organizations to share your personal data with the Government. And I wanted to ask you to elaborate and give your perspective, and anyone else on the panel as well. 

117 

Ms. CANTERBURY. So I am not as familiar with the immunity aspects of the bill, that is not a particular area of expertise for my 

organization or for me, but our concern has been that there are 

overly broad and extensive statutory exemptions to FOIA and that 

those were not necessary but were perhaps just being provided to 

create assurances that really should be had by these entities under 

the law in any case. We are also very concerned that there be some 

sort of equity for the public’s right to know, for civil liberties, for 

whistleblower protections so that there aren’t encroachments on 

those rights with these new proposals. 

Mr. HARPER. I have not read the new CSPA, though I read every 

single cybersecurity bill in the last Congress. I tried to swear off 

the reading of cybersecurity bills, but it looks like I will have to get 

back into it. 

What really, really stuck in my craw about nearly all of those 

bills is that in the area of information sharing they said, notwithstanding any other law, information sharing may happen. Well, 

that means that the Privacy Act of 1974 is out the window. That 

means that the E–Government Act is out the window. That means 

that your contract law, your State contract is out the window. That 

means tort law is out the window. The health information law is 

out the window; financial privacy law is out the window. 

So if the phrase notwithstanding any other law appears in the 

new CSPA, it is as bad as the old CSPA. And it is really offensive 

to me that because there might be some regulatory impediments to 

information sharing, Congress would come along and sweep aside 

all the law that exists, including all the laws that protect our privacy. So it stands out to me, CSPA does, as a real offense to privacy and to, frankly, good law making. 

Mr. SCHUMAN. This isn’t an area of focus for The Sunlight Foundation. 

Mr. AMASH. Sticking to the topic of legislative transparency, I 

served in the State legislature in Michigan before I came to Congress and one of the things that I noticed when I arrived here was 

how lousy the bills were in the way they were written. Everything 

was cross-referenced as, you know, on page 7, line 6 of whatever 

act, insert such and such. 

So when I was in the State house, the way it worked was when 

you have a bill that amends existing law, you actually put the law 

in front of you and you cross things out and you insert things. It 

is like a Track Changes in Word. So I introduced recently the 

Readable Legislation Act, it is H.R. 760, and I wanted to get your 

perspectives on this, whoever might have an opinion on it, because 

I think it is very important that legislators know what they are 

voting on, they can read the bills and then the public can actually 

follow what we are doing. I think it would make us a lot more efficient as a Government. 

Mr. HARPER. I have read the bill, and I could read it through and 

through and understand what it said, and that is important, and 

I think that is the essential goal of your legislation. And for the 

WashingtonWatch.com audience, a site that I run in my spare 

time, I actually showed an example, I took another piece of law, 

which is just a cut and paste law, it says section such and such 

is amended so and so, and I did a redline version of it and said 

118 

this is what the law would look like under Mr. Amash’s bill. Read 

the bill is a stand-in for a lot of demands of the public to understand what is going on in Washington, but taking it literally and 

having Congress write bills that are literally readable is an important and simple amendment to your process, so I recommend it. 

Ms. CANTERBURY. I agree with that; it is a very sensible approach and we support it. 

Mr. SCHUMAN. The Sunlight Foundation actually wrote a little 

article called The Read The Read The Bill Bill, something like that. 

It was a terrible name but it emphasized the point that it is important to understand the legislation. And it is not just how bills 

would change the law, of course, but it is how amendments would 

change bills and how amendments would change other amendments, and starting to draw the connections, because it is not just 

how a bill would change the law, and it is very complex with the 

way that Congress engages in this, but it is also what are the bills 

that are identical or are virtually identical that existed in the same 

Congress or in previous Congresses, what are the other ideas that 

are along these lines that have happened. 

The more that you can wrap these things together, if we can say 

the axis to Congressionally Mandated Reports Act in the 113th 

Congress is identical or virtually identical to the one from the 

112th that had this hearing, all of a sudden you can create contextual awareness in a way that is not possible. And what you are trying to do with this legislation is spot on. 

Ms. WEXLER. And I too support and have the experience of being 

a lobbyist in the New York State legislature and being shocked to 

see that I couldn’t figure out the bills that I was reading here. I 

also believe that Congress is supposed to be under the mandate of 

the plain writing law, so we are supposed to be already reading 

bills that are a little bit easier to understand. 

Mr. AMASH. Thanks. 

Mr. Chairman, I will be very brief. Mr. Schuman? 

Mr. SCHUMAN. I will be very brief. There is also a related rule 

in the House that already exists, and there is one in the Senate, 

it is the Ramsey rule in the House, which is that reports that come 

out of committees are supposed to have basically Track Changes so 

you can see what has changed. This rule isn’t always followed, not 

because folks don’t want to, but because it is actually technologically difficult to do this. What you are proposing is extending 

it broader to all bills that are introduced and, again, it is an incredibly helpful thing to do. 

Mr. AMASH. Thanks for your comments. I can say, again, from 

my experience, it makes a big difference to have the context of the 

bills. It makes us much more efficient as legislators and it allows 

our people at home to really follow what we are doing in a way 

that doesn’t exist right now. So thank you so much and I yield 

back. 

Chairman ISSA. I thank the gentleman. 

We now recognize the patient gentleman from Georgia, Mr. 

Woodall. 

Mr. WOODALL. I thank you for the courtesy, Mr. Chairman, but 

I don’t have any questions. 

119 

Chairman ISSA. Okay, then I will recognize myself for a closing 

quick round. 

This has been very, very important to me to try to hear some of 

the comments, particularly from questions including Mr. Amash’s 

just now. 

Ms. Wexler, I want to make sure I understood in context. Grant 

applicants, that is an industry; I mean, people pay a lot of money 

to write good grants. You weren’t suggesting that the prevailing 

grant is proprietary intellectual property, were you? I wanted to 

understand that. 

Ms. WEXLER. I was suggesting that there are certain types of 

grants, proposals, for example, proposals submitted to the National 

Science Foundation, that do reflect the intellectual property of the 

applicant. I am not saying that that is the universe of all grants 

by any means. 

Chairman ISSA. Because if I can put it in layman’s terms, if I ask 

for a job and I submit you my resume, other than my Social Security number, wouldn’t you say that my resume, if the Government 

hires you, to a great extent should be available? In other words, an 

honest review by those who would be critical of what was in there 

or, if you will, the right of the public to say, geez, how did this person get hired? Wow, they wrote a clever resume, one that might get 

me hired the next time. Wouldn’t we be stepping up the game if 

we made at least the prevailing applications with appropriate 

redactions, but limited, always available? 

Ms. WEXLER. I think the redactions would be difficult to do and 

would require on the part of something like the NSF to put a lot 

more manpower into it. What we don’t want is to in any way violate people’s own ideas and intellectual property before they are 

hatched. 

Chairman ISSA. And I agree with you. You said before they are 

hatched, and maybe for everyone there I am making the assumption that we have granted the application, Federal funding has 

flowed to that entity. At what point would any of you believe that 

substantially all of that material belongs to the public for purposes 

of honestly figuring out whether or not we are spending that 

money properly? Ms. Canterbury? Because it is an important balancing act. We can all see it if I am applying, for example, to provide computers for the IRS, a current investigation of our committee. But when you get into science, often it becomes a little 

murkier. Do you see it as that difficult? 

Ms. CANTERBURY. No. I think we can solve this. I think that we 

do it within the context of proprietary commercial information that 

is not scientific. I think we can do it for science too. I think that 

Ms. Wexler had some good recommendations. I also think we 

should err and appreciate that the chairman and ranking member 

err on the side of transparency, but that you are also open to fixing 

areas where privacy or competition might be used against the entity that would be applying. 

Chairman ISSA. And the current redactions are initiated first by 

the applicant, so I appreciate it is burdensome, but I don’t think 

it is particularly burdensome for the applicant to know what they 

believe is most necessary to protect. So the first argument does appear as though it is not burdensome on the agency. 

120 

Mr. Harper? 

Mr. HARPER. Well, I guess I don’t feel expert enough in this area 

to comment on specifics, but what you are talking about is striking 

a balance and a balance that deals with values: privacy, intellectual property on the one hand and transparency, the administration of taxpayer funds on the other; and I guess there are delicate 

balances to be struck here. I, like Ms. Canterbury, agree that, as 

you might expect on this panel, we would favor the transparency 

side of things. 

Basically, everything we are talking about in grant making, this 

is taxpayer money, so to the extent anyone thinks that there is a 

right to have taxpayer money, no. We can make it part of the deal 

that you have to share this information if you want to be a part 

of the grant. 

Chairman ISSA. And one of the reasons that I am so concerned 

is that often what happens in IT development, in any other part 

of Federal dollars being spent is people come with proprietary information that was previously developed at the taxpayers’ expense. 

They then proceed to get a new grant or contract at taxpayers’ expense in which they then have yet another proprietary group that 

they can go and do it again. 

And the cycle of entities using taxpayer dollars to develop the 

ability to get taxpayer dollars, at some point you look and say, well, 

wait a second, the term crony capitalism is used all over the place, 

but I am very concerned sometimes with the pharmaceutical companies, sometimes with universities that we can in fact find ourselves constantly creating barriers to entry because you can only 

get through this barrier if you have already gotten the Government’s money. And that is part of my concern. 

I want to do a couple more quick questions. 

Would you all agree that when it comes to, for example, an attack or a mining activity from China, North Korea, Syria, Iran, 

that in fact this is not the private sector’s take care of yourself responsibility, but a classic, fundamental, constitutional responsibility of the Government to secure and defend for both our private 

and our commercial activities? 

In other words, in cybersecurity we all understand we have certain responsibilities, but my understanding is some of the most aggressive and most egregious piercing are done by some of the most 

advanced techniques not available to the normal hacker in a basement in Silicon Valley. Wouldn’t you all agree that that is uniquely 

the Federal Government’s primary responsibility, just as it would 

be if someone was coming with muskets to our border? 

Mr. Harper, let’s go back to muskets and the border, if you will. 

Mr. HARPER. Yes. So I think certainly when cyber attacks originate from overseas there is a Government role, but it is more along 

the lines of diplomacy. And I don’t mean going and being friendly; 

I mean leaning hard on governments that are sponsoring or themselves committing cyber attacks or producing cyber weapons. We 

will have more to say on this. 

I have commissioned a paper from a guy who is younger and 

smarter than me to really handle the cybersecurity issue, but one 

of the unique problems or one of several unique problems in the 

cybersecurity area is attribution; you don’t necessarily know where 

121 

it came from. Once a form of attack originates, it can be propagated 

across the globe very quickly, so you don’t know who is really responsible in the first instance. 

The response, as it should be in so many areas, should be phlegmatic. By that I mean measured, careful, calibrated, equivalent to 

the form of attack. So the thing that I think we should worry about 

most is the U.S. Government bringing all of its force in response 

to cyber attack, because cyber attack is relatively limited; it has 

limited ability to do physical damage. It can do real economic damage. 

There are definitely concerns here. Nothing I should say would 

be to dismiss the concerns, but we shouldn’t respond to economic 

harms to our Country with physical harms to other countries. Let’s 

not escalate and talk of cyber war. That phrase I don’t like because 

it suggests escalating to physical war from the cyber snooping, the 

cyber espionage that is certainly going on. 

Chairman ISSA. Well, as somebody who has an opinion on this, 

I will express it quickly. You don’t go to kinetic war over cyber war, 

but you do respond in like, potentially. 

Ms. Canterbury, one question that I have for you, just as with 

the FOIA wanting to have an ombudsman, when we are looking at 

cybersecurity, do we need to have an ombudsman that is not behind the cloak of the Director of National Intelligence or the CIA 

when we are looking at balancing the commercial protection in 

cyber and the government protection? 

Do you, or any of you, see the inherent conflict of if we essentially say cyber will be taken care of by the very people who, quite 

frankly, probably are doing cyber attacks and spying on our adversaries using some of the same techniques, or do we need to have 

somebody who is not part of that game deciding whether or not the 

Bank of America or Chase Manhattan is protected by what we 

know or tipped off to what we know before there is an economic 

loss to we, the consumer? 

Ms. CANTERBURY. So I am not a cybersecurity expert. 

Chairman ISSA. You better get up to speed. It sounds like it is 

the new issue. 

Ms. CANTERBURY. Well, except to say that it might not surprise 

you that my organization agrees that, in most cases, having independent oversight is going to produce better policies and a better 

public interest response. 

Chairman ISSA. Anyone else? 

[No response.] 

Chairman ISSA. Okay. 

Mr. Cummings? 

Mr. CUMMINGS. Mr. Chairman, I just want to thank the witnesses for being here today. Your testimony has been extremely 

helpful. Thank you for shedding light on our legislation. We appreciate that. 

With that, Mr. Chairman, I yield back. 

Chairman ISSA. Thank you. 

I will allow five legislative days in which to have additional comments made. 

Ms. Canterbury, you get the last word. 

122 

Ms. CANTERBURY. Well, I just wanted to make a minor clarification. Congressman Connolly has already departed, but I wanted 

him to know that in our community, in response to Milner and the 

Supreme Court, the case that he cited, we have talked a lot about 

the impacts on FOIA, that court case, and we might agree that 

there is very, very limited information, specifically passwords to security systems, in the Government that may be a gray area. But 

I just wanted to clarify that. 

Chairman ISSA. Okay. 

Ms. CANTERBURY. For the record. 

Chairman ISSA. I appreciate that. You know, my Social Security 

number is probably more gettable than my passwords, and I am 

hoping it stays that way. 

I want to thank all of our witnesses. You have been excellent. 

Again, if you want to revise or extend, the record will be held open 

for five days. 

With that, we are adjourned. 

[Whereupon, at 12:09 p.m., the committee was adjourned.] 

123 


Insert offset folio 81 here 80143.081

DELIVERING ON 

OPEN GOVERNMENT 

MARCH 2013 

EFFECTIVE 

GOVERNMENT 
124 


Insert offset folio 82 here 80143.082

Authors 

Sean Moulton, Director of Open Government Policy 

Gavin Baker, Open Government Policy Analyst 

Contributors 

Katherine McFate, President and CEO 

Anastasia Postnikova, Open Government Policy Intern 

Acknowledgements 

Ihe Center for Effective Government's work on open government issues is made possible by 

the generous support of the Bauman Foundation, C.S. Fund, Ford Foundation, Open Society 

Foundatjons, Rockefeller Brothers Fund, Scherman Foundation, Stewart R. Mott Foundation, and 

the individuals and other organizations who contribute to our work. 

About the Center for Effective Government 

Our mission is to build an open, accountable government that invests in the common good. 

protects people and the environment, and advances the national priorities defined by an active, 

informed citizenry. 

To ensure government is effective and responsive to the priorities of the American people, 

we conduct policy research and develop policy proposals; create tools to encourage citizen 

participation and government accountability; and build broad-based coalitions to advance these 

values. To ensure the American people understand the vital role of government, we produce and 

disseminate educational tools and communications materials. 

Individuals and organizations wishing to quote, post, reprint, or otherwise redistribute this 

report, in whole or in part, are permitted to do so if they provide attribution to the Center 

for Effective Government as the original publisher. To contribute to the Center for Effective 

Government, please visit http://community.foreffectivegov.org/donate. 
125 


Insert offset folio 83 here 80143.083

DELI ERING ON 

OPEN GOVERNMENT 
126 


Insert offset folio 84 here 80143.084

2 

Executive Summary 

Introduction 

Create an Environment that 

Supports Open Government 

Accessible, Reliable Public Information 

National Security and Secrecy 

3 

6 

11 

21 

30 

Recommendations 39 

Timeline of Key Open Government Actions 48 
127 


Insert offset folio 85 here 80143.085

The Obama administration has dedicated more effort to strengthening government transparency 

than previous administrations, The president entered office offering a grand vision for more 

open and participatory government, and this administration used its first term to construct a 

policy foundation that can make that vision a reality, issuing an impressive number of directives, 

executive orders, plans, and other actions aimed at bolstering government openness, \Vith the 

notable, glaring exception of national security, the open government policy platform the Obama 

administration built is strong, However, the actual implementation of open government policies 

within federal agencies has been inconsistent and, in some agencies, weak. 

This report examines progress made during President Obama's first term toward open 

government goals outlined in a comprehensive set of recommendations that the open government 

community issued in November 2008, titled Moving Toward a 21st Century Right-ta-Know 

Agenda,l We examine activity in the three main areas of the 2008 report: creating an environment 

within government that is supportive of transparency, improving public use of government 

information, and redUcing the secrecy related to national security issues, 

The administration's strongest performance was in its use of technology to make information 

more available to the public and more user-friendly, Officials encouraged agencies to use more 

social media, lannched new websites, created mobile apps, and overhauled older online tools, 

More detailed information about federal spending was made available to the public, Agencies 

are now required to transition to electronic records management, although they have been given 

a long timeframe for the shift, Administration policy raised the bar for delivering information 

under the Freedom ofInformation Act (FOIA), These were long overdue steps that will 

modernize how government communicates to and shares information with the public. 

However, despite policy guidance from the White House, the implementation of open 

government reforms at the agency level has been uneven, and few agencies appear to have 

embraced the practice of open government enthusiastically, Some agencies produced very 

vague open government plans for themselves, Many have not followed the White House's lead 

in making information about basic operations open to the public or even posting visitor logs. 

Several produced weak policies to protect the integrity of scientific information and the rights of 

government scientists to share their work. Protections for whistleblowers were strengthened, but 

the administration has also taken an aggressive approach to prosecuting leaks, 

I Moving Toward a 21st Century Right-ta-Know Agenda: Recommendations to President-elect Obama and Congress, November 2008. ~ 

fQrdfeqiyegov Qw/fik~f" I ,trtknnpdf 

3 
128 


Insert offset folio 86 here 80143.086

<: 

m 

;0 

Z 

(jl 

o 

z 

o 

-0 

m 

Z 

m 

~ ;0 

C::Z 

~~ "',Z g.-i 

2. 

4 

The administration's most glaring open government shortcomings involve national security 

secrecy_ 'The Obama adlninistration has relied on state secrets or secret laws as heavily as the 

previous administration, to the disappointment of open government advocates and civil liberties 

defenders, Good policies were established on declassifying documents, but without changing 

the process for declassifying documents or significantly increasing staff, it will take years to get 

through the time-consuming process of reviewing all classified documents, The new framework 

for controlled unclassified information (CUI) contains critical reforms but remains at an early 

stage of implementation, 

While the Obama administration deserves praise for the important work it has done to build a 

platform for open government in its first term, the job is unfinished, 

To secure its legacy as "the most transparent administration in history:' the Obama 

administration must encourage agencies to establish environments that embrace openness; 

improve the accessibility and reliability of public information; and dramatically transform its 

policies on national security secrecy In each area, we offer detailed recommendations that build 

on the accomplishments and efforts of the first term and address the highest -priority issues for 

the second. 

Specifically, we recommend that in its second term, the Obama administration: 

Create an environment that supports open government 

1. The administration should assign a senior official in the White House to oversee the 

implementation of open government policies and ensure that individnal has the authority 

to carry out the attendant responsibilities of implementation. 

2. Agency heads should develop and make public implementation plans for key open 

government poliCies and assign a senior official the responsibility for overseeing the 

implementation of the agency plan. Additionally, the interagency Open Government 

Working Group should serve as a central forum to explore ways to improve overall 

implementation of open government policies. 

3. Congress should playa more active role in supporting open government practices by passing 

legislation to codify open government reforms, such as the DATA Act and reforms of 

FOIA and declassification, Relevant committees should improve oversight of current open 

government policies and implementation. Transparency needs to be established by law. 
129 


Insert offset folio 87 here 80143.087

Improve the accessibility and reliability of public information 

4. Agencies should modernize their IT systems to create and manage information digitally, and 

the administration should establish benchmark requirements for electronic records that all 

agencies must achieve over the next four years. 

5. The administration should launch an aggressive effort to improve agency compliance with its 

guidance on fulfilling Freedom ofInformation Act (FOIA) requests - speeding up processing, 

reducing backlogs, and increasing disclosure. The Justice Department should work with 

agencies to avoid FOlA litigation whenever possible and argue positions that are consistent 

with the president's transparency principles when in court. 

6. The administration should make proactive disclosure of public information the norm and 

establish minimum standards for disclosure that all agencies should adhere to, such as 

releasing communications with Congress and posting FOlA request logs. Additionally, 

agencies should continue to expand the datasets posted online and release inventories of data 

holdings. 

Reduce national security secrecy 

7. The administration should establish a White House steering committee on classification 

reform, initiate an oversight review of agency classification guides, and pursue policy and 

statutory reforms to streamline the declassification process. 

8. The administration should revise its state secrets policy to require independent court reviews 

of secret evidence and work with Congress to permanently reform the state secrets privilege 

through legislation. Additionally, the Department of Justice should issue a public report on 

Inspector General investigations into complaints of wrongdoing that were dismissed because 

of state secrets claims. 

9. The Justice Department should renounce the use of criminal prosecution for media leaks and 

protect the First Amendment rights of employees. 

10. The administration should order an end to secret legal opinions, memos, and directives that 

are used to shield controversial decisions from oversight and legal challenge. 

5 
130 


Insert offset folio 88 here 80143.088

6 

President Barack Obama, remarks, Jan. 21, 20092 

INTRODUCTION 

Four years ago, when Barack Obama assumed the office of the President of the United States, 

he signaled his commitment to make his administration "the most transparent in history:" In 

his inaugural address, he pledged his administration would "do our business in the light of day 

- because only then can we restore the vital trust between a people and their governmenf'4 On 

his first full day in office, the president issued a Presidential Memoranda calling for increased 

transparency throughout the federal government, another calling for greater disclosure under 

the Freedom ofInformation Act, and an executive order strengthening access to presidential 

records. Never before had an incoming president made open government such a high priority. 

Expectations for transparency in the new administration rose to greater heights. 

To realize these commitments, White House officials and agency personnel have invested 

thousands of hours laying a policy framework for transparency. In the months following the 

inaugural address, the White House established new policies tightening the standards for 

2 "President Obama Delivers Remarks at Swearing-In Ceremony: Jan. 21, 2009. https:l!www.fas.orgtsgp/news/2QQ91P1IQbamaQ121Q9.htrol . 

.3 Macon Phillips, «Change has come to WhiteHouse.gov;' Thr: White House BlDg, Jan. 20, 2009. http)/VvJYKWhitehouse.govfbJoglchange has 

fOroe to whitehollse--gov. 

4 President Samek Ohama's Inaugural Address, The White House, ian. 21, 2009. hUl-'l'Uwy.'WwbitehQuse goy/the PITs$. office/preSident 

Barack Qbama~ Inaugural Address. 
131 


Insert offset folio 89 here 80143.089

classified information and speeding declassification, protecting the transparency and credibility of 

scientific information, and reforming the system of controlled unclassified information. 

1he White House sought to lead by example by putting its visitor logs online and making them 

searchable. The money spent under the Recovery Act was characterized by unprecedented 

transparency. The Obama administration aggressively adopted Internet technologies, launching 

new websites and redesigning others, engaging citizens on social media, and making public 

databases more accessible. As a result, cloud computing, social media tools, and "apps" are now 

common parlance and in common use throughout government. During the Hurricane Sandy 

crisis, agencies successfully used these new tools to push out storm warnings, updates on its 

predicted path, and instructions on how to prepare for its impact. 

However, at the agency level, implementation of the policies that the president established 

has been uneven. In response to a VI'hite House mandate, some agencies developed detailed 

blueprints for strengthening open government, while others failed to make concrete 

commitments. Some have embraced a shift to electronic records and have plans on how to 

manage electronic information, while others lag. Some developed strong policies to protect 

scientific information from political interference, while others mustered only vague guidelines. 

But across-the-board improvements have been rare due to inconsistent enforcement, staff 

turnover, congressional inaction, and uncertain funding. We have not seen a new "culture of 

openness" firmly embedded in the executive branch. 

In the national security arena, the open government community and civil liberties advocates 

have been especially disappointed. The White House adopted minor reforms on the state 

secrets privilege, which allows the government to seek dismissal oflawsuits that could reveal 

sensitive security information, and failed to include better court review of state secrets claims. 

The administration has continued to use secret "laws" to make controversial decisions without 

oversight, to disallow legal challenge, and to withhold key decisions and memoranda that have 

the force oflaw from public scrutiny. 

To secure its legacy as a champion of transparency, the administration will need to do more to 

ensure that agencies actually implement the transparency policies it established, address gaps left 

in its policy reforms, and improve its record on national security-related secrecy. 

The Challenge of Implementation 

Establishing open government poliCies takes work. While it may sound like a straightforward 

task to make more information available to the public, successful open government reforms 

require breaking long-ingrained habits and changing agency norms and practices. Open 

government requires a good policy foundation, active leadership, and staff engagement. New 

7 
132 


Insert offset folio 90 here 80143.090

8 

technologies and operating practices may require new investments of resources, as welL Some 

of these reform elements may reqnire the support of other agencies and branches of government. 

And, since every agency has its own discrete mission to carry out, open government refonns must 

be enacted as new leadership seeks to improve its performance overall. 

In its first four years, the Obama administration provided a strong vision for open government 

and invested resources and staff to advance its goals. Specifically, the administration initiated a 

set of activities designed to shift the culture of the federal government. The Open Government 

Directive established a new requirement that every agency develop and maintain an Open 

Government Plan tailored to its mission and audience. An interagency working group has met 

regularly to discuss progress made and challenges encountered on open government issues. 

White House staff was assigned to shepherd the process. The White House issued executive 

orders on presidential records, classified information, and controlled unclassified information, 

as well as presidential memoranda on FOJA implementation, managing government records, 

and digital government. These actions signaled to individuals within federal agencies and to the 

public that transparency was a high priority for the administration. 

But implementing reforms takes time, oversight, and effort. While we typically think of 

transparency as an element of effective government, it is clear that effective governance is required 

to achieve transparency. In fact, improvements in transparency depend on the same factors that 

effective public administration in any context requires: commitment from top leadership; responsive 

staff; incentives for performance; meaningful accountability measures; adequate resources; and an 

environment that supports ongoing experimentation and learning. Delays in confirming qualified 

agency leaders have slowed implementation of presidential directives in some agencies, and the 

budget uncertainty of the past two years has created an additional hurdle to the successful execution 

of open government reforms. The hyper-partisan character of political relations in Washington 

since the 2010 elections has also made it difficult to advance transparency legislation. 

This Assessment 

This report assesses the progress made on the major open government recommendations 

collaboratively developed by transparency advocates and delivered to President-elect Barack 

Obama and Congress in November 2008. Those recommendations, compiled in a report titled 

Moving Toward a 21st Century Right-ta-Know Agenda, were developed over a two-year period 

with input from mOfe than 100 groups and individuals and were endorsed by more than 300 

organizations and individuals from across the political spectrum. 5 A senior White House official 

called the recommendations an unofficial "blueprint for the Obama administration:' 

5 Moving Toward a 21st Century Right-to-Know Agenda: Recommendations to President·elect Obama and Congress, November 2008. ~ 

fQreffectivegovorg/fib!') 1 strtkreq pdf. 
133 


Insert offset folio 91 here 80143.091

The report organized most of the rec0111mendations into three main areas:6 

Creating an Environment that Supports Open Government recommended policies and 

practices that would encourage a culture of openness within executive agencies and create 

incentives for agency staff to embrace transparency reforms. 

Improving the Accessibility and Reliability of Government Information focused on using 

interactive technologies to make information more easily accessible to the public and on 

using the best formats and tools to make data management more efficient and reliable. 

Reducing Secl"ecy in National Security outlined the need for more public oversight of 

defense and intelligence decisions, without undermining legitimate national security 

concerns. 

This report examines activity in these three main areas, using the "bar" of the 2008 

recommendations, without assessing specifics on every recommendation.' Interviews were 

conducted with various open government advocates (see list on page 50). However, those 

interviewed and quoted in the report have not endorsed the substance of this report; judgments 

are those of the staff at the Center for Effective Government. 

As its second term begins, the Obama administration has the opportunity to re-commit itself to 

the vision the president offered when he took office in 2009. The administration has established 

a policy foundation for improved transparency and accountability. An update to guidance on 

implementing the Freedom of Information Act instructed agencies to disclose whenever possible 

to improve the processing of information requests. All agencies have developed formal scientific 

integrity policies to protect scientific information from political interference. Significant progress 

has been made to use websites, online tools, and social media to communicate with the public 

more effectively. And recently passed improvements to whistleblower protections will make it 

easier for federal employees to disclose problems without fear of retribution. 

But actual implementation of many of the policies established has lagged in key agencies, so the 

final section of this report recommends ways the administration can build on the progress of the 

first four years and reclaim missed opportunities. 

6 An additional chapter laid out recommendations for the first 100 days of the administration, which ,",-ere assessed separately. OMB Watch 

(now Center for Effective Government), Obarna at 100 Days - 21st Century Right-fa-Know Agenda, April 2009. hnp.Jlwwwforeffeqiyegm'org( 

fi:le,/obamaatIOOdavsrtk.pdf. 

7 A previous report assessed progress on each recommendation at the midpoint of President Obama's first term. OMB Watch (now Center for 

Effective Government), Assessing Progress Toward a 21st Century Right to Know, March 2011. http·UwwwfQrelfectivegoyon;121stnkrecsas§cssment. 

9 
134 


Insert offset folio 92 here 80143.092

10 

If these recommendations are put in place, we believe we will see a fundamental and lasting 

change in how government operates, ensuring the president's commitment to be "the most open 

and transparent administration in history" becomes a lasting legacy of his time in office. 
135 


Insert offset folio 93 here 80143.093

CREATE AN ENVIRONMENT THAT 

SUPPORTS OPEN 

GOVERNMENT 

Creating an environment in federal agencies that encourages openness is a tough goal. No one 

likes to have their work scrutinized by external parties. so it is not surprising that public officials 

do not naturally embrace openness and the resulting accountability it brings. Improvements 

in transparency depend on the same factors that any effective reform effort requires. including 

commitment from top leadership. responsive staff. incentives for performance and consequences 

for poor performance. adequate resources. and an environment that supports ongoing 

experimentation and learning. 

While the president's commitment to open government has been unwavering. at the agency level. 

staff responsiveness. incentives. and resources have often been lacking. 

11 
136 


Insert offset folio 94 here 80143.094

12 

Leadership Vision 

President Obama brought together many of the necessary components for change. The president 

offered a powerful vision for open government and challenged agencies to think creatively, 

particularly about the use of technology. The administration also signaled its commitment 

to transparency by playing a leadership role in creating the international Open Government 

Partnership. 

Strong policy improvements were put in place for FOlA, classification/declassification, scientific 

integrity, whistleblower protections, and general open government. The White House set an 

example with visitor logs. Rather than continue to fight a lawsuit started during the Bush 

administration around certain presidential records, Obama settled it and created a searchable 

website of logs of visitors to the White House - the first time the White House ever disclosed 

such information. In March 2011, the White House directed agencies to post staff directories, 

testimony, and reports to Congress. 8 However, a review of 29 agencies conducted in July 2011 

found that only six were posting all the information required by the directive. 9 

"We came to Washington to change the way business was 

done, and part of that was making ourselves accountable to 

the American people by opening up our government." 

President Barack Obama, Statement on Sunshine Week, 

March 16,201010 

During the first two years of the first term, several high.level White House staff were engaged 

on transparency reforms. For instance, Norman Eisen served as Special Counsel for Ethics 

and Government Reform and worked closely with transparency advocates to develop the 

administration's open government agenda. His senior position and his commitment of a 

significant amount of his time to government reform issues seem to have played a critical 

role in the policy successes evident during that period. However, subsequent staff departures 

from the White House have left no one clearly in charge of implementing the president's open 

government directives. Instead, a few staff have worked intermittently on open government while 

handling multiple other responsibilities. There appears to be no clear alignment of authority and 

responsibility for implementing open government reforms among White House staff. 

B Steve Croley, U1he Freedom of Information Act: Building on Steady Progress:' the WhIte House Blog, March 14, 2011. httW!lwww.whitrhQusl.' 

goyiblogf2Q 11/0 ?l14/freedom-jnformation .act .by ild jng -steady-progress. 

9 't\gendes Not MeetmgAdmmistratlOn's Sunshme Week Commitments," OpenTht>Government.org, July 8, 2011. http·Uwww 

openthegoyernment org/nodel3! 61. 

10 "Statement from the President on Sunshine Week>~ The White House, Office of the Press Secretary, March 16, 2010. bttp·lIwwwwhitehQUse 

gQv/the-pn:;ss-office/statcmenl-pre~jdent-sun$hine-weclc. 
137 


Insert offset folio 95 here 80143.095

Agencies also experienced confusion over leadership and authority on open government issues. 

Many agencies included some hierarchy of the officials responsible for transparency in their open 

government plans, but not all clarified staff responsibilities. Additionally, we have seen senior 

officials assign responsibility for open government issues to lower-level staff who do not always 

have the authority to establish strong agency-wide policies or force changes in the activities of 

agency divisions. 

An interagency Open Government Working Group convened by the White House meets 

regularly, but there are no records of the issues addressed or the agencies and officials attending. 

While the need for some degree of non-public dialogue is understandable, it is disappointing that 

a working group on open government hasn't figured out a way to inform the public about its work 

and accomplishments. 

Implementation Struggles 

There is a noticeable gap between the 

White House's policies and agencies' 

implementation thereof. Ultimately, 

the administration will be judged on 

the transparency it delivered, not the 

transparency it envisioned or promised -

and there is widespread agreement that the 

delivery has lagged. 

To its credit, the administration has taken 

some steps to ensure its transparency 

policies are enacted. The administration 

required agencies to create open 

government plans encouraging them 

"We are only seeing a few agencies 

enthusiastic about the Open 

Government Directive. Maybe it's 

because there aren't penalties for 

failure, nor rewards for initiative and 

excellence. Participation is voluntary, 

and there isn't a real infrastructure 

across the government to ensure 

openness is a priority:' commented 

Danielle Brian, executive director of 

the Project On Government Oversight 

(POGO). 

to take ownership of the openness initiative and to reflect critically on transparency in agency 

operations. To foster leadership, the administration directed each agency to appoint a senior-level 

representative to an interagency Open Government Working Group. To bolster accountability, 

Chief FOIA Officers in all the agencies were assigned new reporting requirements on agency 

implementation efforts. It isn't clear why these efforts proved insufficient to generate consistent 

implementation across the federal government. 

Some agencies embraced the challenge of developing Open Government Plans and offered bold 

and innovative changes. For instance, the National Aeronautics and Space Administration's 

(NASA) plan scored the highest in a review by open government advocates and was noted as 

13 
138 


Insert offset folio 96 here 80143.096

14 

"exceptional for its level of detail for each 

project and initiative:'ll NASAS open 

government plan included more than 80 

specific milestones, with deadlines for three 

months, six months, one year, and two years 

:\ASA's plan included more than 80 

specific milestones for innovative 

projects. 

for most project areas. The plan also featured innovative projects such as an online status 

dashboard, increasing access to scientific data, and crowdsourcing greater public involvement in 

research." Other agencies only scratched the surface with overly general terms and few details 

or timeframes. The Department of Justice's plan, which scored lowest in the review, offered 

practically no significant expansions in transparency or innovative open government projects, 

instead focusing primarily on FOIA and preexisting public relations efforts. 

Likewise, agency performance has been mixed on implementing the Obama administration's 

FOIA policies. For instance, the 2009 Open Government Directive instructed agencies with a 

significant backlog of FOIA requests to reduce their backlogs by 10 percent each year. But ofthe 

II cabinet agencies with more than 500 backlogged requests in fiscal year (FY) 2009, only three 

met the 10 percent reduction goal each year: the Departments of Health and Human Services, the 

Interior, and the Treasury. Three other agencies met the goal in two years out of three, while the 

remaining five agencies met their goal in only one year. There was no year in which every agency 

met the assigned goal. As of the end of FY 2012, nearly 60,000 backlogged requests remained in 

these II agencies - a total reduction of 8.8 percent compared to FY 2009.13 

I! Eva/uatingOpen Government. OpenTheGovernment.org, https~l!sites google com/site/npenggyrplans/home, 

12 "NASA Open Government Plan;' National Aeronautics and Space Administration. http"!VfWW nasa goy/openlp1an/, 

! 3 I1!t.a. from agency annual FOIA reports. See hH;pHwww instice goy/aip/reports htmL 
139 


Insert offset folio 97 here 80143.097

Resources were also a frequent problem for agency implementation of open government policies. 

Despite the fact that these efforts often result in saved money and were popular with the public, 

agencies typically have to invest some resources upfront. Tight and unpredictable budgets 

contributed to agency reluctance to make the investment in key open government activities. This 

has meant that bigger, broader reforms were scaled back or not considered. 

Congressional Oversight 

The slow pace of secrecy reform within the executive branch has been aided and abetted by a 

lack of robust oversight from Congress. The legislative branch of government - co-equal under 

the Constitution - has largely failed to provide substantive oversight for openness efforts and to 

challenge secrecy claims. 

Congress has numerous tools at its disposal that can help identify problems, improve agency 

implementation, and even highlight best practices. The most common tools used by Congress 

include committee hearings, formal letters of inquiry to agencies, and requests for the 

15 
140 


Insert offset folio 98 here 80143.098

16 

Government Accountability Office to review policies and practices. Yet Congress has conducted 

little visible oversight in the past four years on a number of key transparency issues. The effects 

of several new administration policies such as the Open Government Directive and subsequent 

open government plans by agencies, executive orders on classification and controlled unclassified 

information, the scientific integrity memo, and the state secrets policy - have gone largely 

unexamined. While there has been some oversight of FOIA implementation," this has been the 

exception. Congress should do more to utilize the oversight tools at its disposal to determine how 

well these policies are serving the public's interests. 

The lack of overSight is especially 

evident in areas of national security and 

secrecy. Instead of encouraging greater 

transparency and accountability, members 

of Congress have actually supported 

continued secrecy. For instance, in 2011, 

the Senate Intelligence Committee proposed 

punishing unauthorized disclosures of 

classified information by seizing any 

federal government pensions the individual 

may possess. Such a policy, which was 

"ender those it was not 

realistic to expect the executiye 

to restrain itself;' said Steyen 

Aftergood, director of the Federation 

of American Scientists' Project on 

Government Secrecy. "It's hard for 

government agencies to be more 

transparent than Congress wants 

them to be:' 

not requested by intelligence agencies, could have a tremendous chilling effect on potential 

whistleblowers. The provision was stripped out of the 2013 Intelligence Authorization Act before 

it was passed in December 2012.15 

At the same time, the administration has not been fully welcoming of congressional oversight 

in the rare instances when it has occurred on open government issues. Congressional staff 

continue to complain about the difficulty of getting executive officials to testify before committees 

and that agencies are slow to respond to congressional requests for overSight information. The 

Justice Department's testimony in a 2012 House hearing on using technology to improve FOIA 

implementation did as much to muddy the waters as it did to elucidate the issue. The department 

downplayed the accomplishment of other agencies in developing the FOIAOnline portal and 

claimed that because other agencies had FOIA webpages, there were already many such portals. 

When the House Judiciary Committee held hearings on the state secrets privilege in June 2009, 

the administration declined to provide witnesses despite the committee's request. Rep. Jerrold 

Nadler (D-NY), then chair of the House Subcommittee on the Constitution, Civil Rights, and 

Civil Liberties, expressed disappOintment in the lack of administration participation and said, "It 

14 See e,g. «Congress Asking the Right Questions on FOIA," Center for Effective Government, Feb. 12,2013. httj,rllwmv.fjwcftectivegqyorgl 

congress-asking-righl-ques!ions-foja. 

15 Steven AftergQod, ~Senate Passes Intelligence Bill Without Anti-Leak Measures; Secrecy News, Dec. 31, 2012. bttp$'/Iwyr)vfas Qrgtb10gl 

~ecrecyl2Q12l12PQ13 intdauth.html. 
141 


Insert offset folio 99 here 80143.099

should be possible to send someone to provide us with the Administration's views and to answer 

our questions to the extent that they are able."16 

In contrast with the George W Bush administration's political manipulation and suppression 

of science, President Obama issued a March 2009 memo embracing the principles of scientific 

integrity. Specifically, the memo directed officials not to suppress scientific findings and to adopt 

appropriate procedures to ensure scientific integrity. Advocates have not reported significant or 

consistent attempts to manipulate scientific findings in the Obama administration's first term. 

However) media access to government scientists remains an issue. 

Despite presidential instructions to complete scientific integrity gUidelines within three months, 

it took the Office of Science and Technology Policy (OSTP) more than 18 months to produce 

guidance for agencies. When it was released, the OSTP guidance was vague. OSTP's principles 

failed to speCifically state scientists' rights to express personal views or to review the final version 

of scientific documents to which they contributed, did not require agencies to inform employees 

of their whistleblower rights or to post their communications poliCies online, and did not clearly 

define the role of public affairs officers. The OSTP memo also did little to improve the ability of 

journalists to speak with government experts, stating that "federal scientists may speak to the 

media ... with appropriate coordination with their immediate supervisor and their public affairs 

office:'l7 

Despite the new policy, journalists complain 

that in many agencies, access to government 

scientists is quite limited. Reporters are not 

allowed to talk to scientists without a public 

affairs officer in the agency being present. 

The result is continued or worsened delays 

and bureaucratic hurdles in getting access 

"We continue to get calls from 

reporters on an ongoing basis, saying 

they can't get in;' said Francesca 

Grifo, senior scientist at the Union of 

Concerned Scientists. 

to experts and documents, which makes uncovering stories more difficult. "This particular 

administration is very, very diSciplined when it comes to information control;' said Lucy Dalglish, 

dean of journalism at the University of Maryland. 

Agency poliCies on scientific integrity vary widely. The National Oceanic and Atmospheric 

Administration's (NOAA) draft policy stood out from other agencies with specific protections and 

l6 "State Secret Protection Act of 2009; Hearing before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House 

Committee on the Judiciary, June 4, 2005. http·/ljudjcjary.hou,egov!hearings/prjntersIlJlIhI1J 1-)4 S0070 PDF. 

17 John P. Holdren, "Scientific Integrity," memorandum, Office of Science and Technology Policy, Dec. 17,2010. http·UymwwhltehQ!lScgoy! 

sitesidefau1tffiles/micrositeslostl}/scientific-integrity-memo-l ~ 17'01Q pdf. 

17 
142 


Insert offset folio 100 here 80143.100

18 

detailed procedures for reporting and investigating possible instances of scientific interference. 

By contrast, the EPA:s draft policy did not contain enforceable requirements to protect against 

scientific interference or detail any investigation procedures. The process for the development of 

agency scientific integrity policies was ad hoc and lacked a requirement to engage with the public 

Whistleblowers make the public aware oflawbreaking, waste, or threats to health and safety. 

Protecting public servants who report problems from profeSSional retribution helps establish 

a culture of transparency in government that places accountability and the public good above 

problem avoidance or image maintenance. However, despite the important role whistleblowers 

play in making sure that lawmakers and the public are informed of wrongdoing, the legal 

provisions put in place to protect them from retribution became riddled with loopholes from ba( 

court rulings over the years." 

A recent survey by the Merit Systems Protection Board, an independent agency that reviews 

whistleblower appeals, suggests that while fewer federal employees are witnessing wrongdoing 

and many employees do report such problems, retribution against whistleblowers still occurs. 

The board surveyed more than 42,000 federal employees in 2010 and found that about 11 

percent reported witnessing any "wasteful or illegal actlvities:' Of these, about two-thirds said 

they reported these activities, about one in five of whom said that they suffered some kind of 

reprisal from blowing the whistle. And a higher percentage of these reported being fired for 

whistleblowing in 2010 than in 1992." 

During its first term, the Obama administration worked regularly to support legislative efforts 

to improve whistleblower protections. The president Signed into law various improvements 

in whistleblower protections that were included in several bills, ranging from the Recovery 

Act to the health care reform law.20 Then in November 2012, after years of hard work by 

advocacy groups, Congress passed and President Obama signed the Whistleblower Protection 

Enhancement Act." The new law made major upgrades to the protections for federal 

whistleblowers by closing loopholes, clarifying protections, and strengthening the agencies 

charged with protecting whistleblowers. Though intelligence and national security workers 

18 Report on the Whistleblower Protection Enhancement Act (P.L. 112.199), Senate Committee on Homeland Security and Governmental 

Affairs, April 19, 2012. http'flwwwero goyjfdsys/pkg/CRPT -J Psrptl S5/pdflCRpT. II ")srptl55 pdf. 

19 Blowing The Whistle: Barriers to Federal Employees Making Disclosures, U.S. Merit Systems Protection Board, November 2011. ~ 

msph goyloclsearrhlyjewdocs aSpX?dOCDUmber-6625Q;?&Yersjon!;;o66447:;&ap.plicalioo-ACROBAT. 

20 Whisdeblower protections were included in the American Recovery and Remvestment Act (P.L. 111-5, Sec 1553); Fraud Enforcement and 

Recovery Act 0[2009 (P.L 111·21, Sec 4); Patient Protection and Affordable Care Act of 2010 (P.L. 111-148, Sec. 101040)(2)); and FDA Food 

Safety Modernization Act (P.L. 1 i 1-353, Sec. 402). 

21 P.L.1l2-199. 
143 


Insert offset folio 101 here 80143.101

were excluded from the new law's protections, President Obama issued a directive in October to 

improve protections for these public employees." 

In addition, Congress extended 

whistleblower protections to an estimated 

12 million private employees of federal 

contractors and grantees, ensuring that 

these companies and organizations cannot 

fire or punish private employees who report 

misconduct among businesses receiving 

Laws signed in late 2012 and early 

2013 upgraded the protections for 

federal whistleblowers and extended 

protections to 12 million private 

employees of federal contractors. 

public funds. These provisions were included in the National Defense Authorization Act, which 

President Obama signed in early January 2013 23 However, the president surprisingly issued 

a signing statement on the law that claimed the provisions could interfere with the executive 

branch's ability to manage officials and asserted that the administration would interpret the 

protections so that agencies could "supervise, control and correct employees' communications 

with Congress:'" The practical effect of the signing statement is unclear, but whistleblower 

advocates took it as inauspicious2 ; 

Another contradiction to the administration's efforts to improve whistleblower protections 

was the unprecedented number of investigations and excessive prosecutions of leaks, which 

could have a chilling effect on authorized disclosures. The administration has brought six cases 

against government (or military) employees for leaks under the Espionage Act, compared to 

only three known previous cases since its enactment in 1917." For example, after telling a 

reporter about warrantless wiretaps by the National Security Agency, Thomas Drake, a former 

official at the agency, was charged under the Espionage Act. Drake faced up to 35 years in jail for 

possessing, but never sharing, a handful of classified documents - several of which were either 

marked declassified or had been declassified. After years of investigation and prosecution, the 

administration's case collapsed, and they instead struck a deal with Drake to plead guilty to a 

misdemeanor. 

22 Baraek Obama, Presidential Policy Directive 19, ''Protc(:ting Whistleblowers with Access to Classified Information:' The White House, Oct. 

10, 2012. http)/www.washjuglonpost com/r/lO) Q- 2019/Washing1:ooPostI2Q\ 2/1 DlllINaUooal-Politiq/Graphks/whi5tleblowerIC pdf. 

23 PL1l2-239. 

24 "Statement by the the President on H.R. 431 O,~ The White House, Office of the Press Secretary, Jan. 3, 20] 3. httO'lIwww whitehouse goyfthePITSs-otficef2Q\ 3(01 fOjfstatrment_presidept_hr_431 Q. 

25 See e.g. Suzanne Dershowitz, "Lawmakers Sound Alarm on Ohama's NDAA Signing Statement:' Project On Government OverSight, Jan. 17, 

2013. http·IIWWWjvo\morgfblog/2013!01 /201 3Ql 171awmakers-sound·alarm-on hlml. 

26 Cora Currier, "Sealing Loose Lips: Charting Ohama's Crackdown on Leaks;' ProPublica, March 9, 2012. https)fyrurwpropphlica orglspedall 

sealing·!Qose.Jips-charting-Qbamah-rackdQwn-(ln-natjonal"~e curlty-leaks. 

19 
144 


Insert offset folio 102 here 80143.102

o "It's never appropriate to treat a whistleblower who is trying to perform a service to his country in 

PJ the same way that you would treat a traitor;' said Elizabeth Goitein, co-director of the Liberty and 

~ National Security Program at the Brennan Center for Justice. ;0 

Z 

o 

o 

z 

o 

-0 

m 

Z 

;0 

~ C::Z :: :s: 

2'm 

~~ Q 

::.. 

20 
145 


Insert offset folio 103 here 80143.103

ACCESSIBLE, RELIABLE 

PUBLIC INFORMATION 

In its first term, the Obama administration has shown exceptional enthusiasm in using new 

technologies to communicate with the public. Agencies have unveiled user-friendly websites, 

broadened data availability, and grown significantly bolder in their use of social media. 

The administration has also taken steps to better manage technology in ways that improve 

the longer-term outlook for transparency. As a result of its reforms and commitments, 

the administration has conSiderably raised expectations for the usability of government 

information. 

Openness can only be meaningfully judged against the standards of the day. The Internet 

revolution has made it easier than ever to access, analyze, and understand information. The 

public expects high standards of usability in technology, and intuitive tools like visualizations 

have become widespread. The benefits of these improvements for better dialog and decision 

making have become more evident. 

21 
146 


Insert offset folio 104 here 80143.104

22 

In just four years, the online face of the u.s. government has undergone dramatic change. To 

some degree, this has been driven by broader social trends, as reliance on the Internet has become 

ubiquitous. However, the administration had options in how to respond to the technological 

shift, and it has clearly chosen to embrace it. On President Obama's first full day in office, he 

issued a memo directing agencies to "harness new technologies to put information about their 

operations and decisions online and readily available to the public:'" 'The past four years have 

seen that rhetoric increasingly becoming reality. 

''Agencies should harness new technologies to put information 

about their operations and decisions online alld readily 

available to the public." 

PreSident Barack Obama, "Transparency and Open 

Government;' Jan. 21, 200928 

To help transform government's use of technology, the administration created two new federal 

officers, a Chieflnformation Officer (CIO) and a Chief Technology Officer (CTO), both of whom 

have played important roles in driving transparency efforts forward. The administration also 

proposed increasing resources for IT (through growth in the Electronic Government Fund) while 

emphasizing the need to get more value out of technology spending - a necessary step in making 

transparency innovations fiscally feasible. 

These investments yielded important 

benefits. An early project, the IT Dashboard, 

tracked underperforming and over-budget 

IT projects within agencies, which led to 

the cancelation of some $3 billion in failing 

technology projects. PaymentAccuracy. 

gov identifies possibly improper federal 

payments that cost billions of dollars each 

year. Challenge.gov established a low-cost 

platform to help agencies bring the public 

into agencies' deliberations on how to solve 

government problems. 

"111inking about information 

differently, as something that is not 

just the public's right to ask for, but 

that agencies have an obligation on 

their own to make it more accessible 

to the public - I think that is a huge 

step:' said Anne Weismann, chief 

counsel for Citizens for Responsibility 

and Ethics in Washington (CREW). 

27 Bamek Ohama, "Transparency and Open Government;' memorandum, The White House, Jan. 21, 2009. hltpHwww.whitehousegoy/the 

mess offh'e/TransparencyandOpcnGpvernment. 

28 Ibid, 
147 


Insert offset folio 105 here 80143.105

Improving access to government data 

has been a particular accomplishment 

of this administration. In May 2009, the 

administration launched Data.gov to 

provide a central repository for agencies 

to make data available to users and to 

facilitate interactions among data users 

The Data.gov website features more 

than 350,000 datasets, 1,200 data 

tools, and more than 130 mobile 

applications from agencies across the 

federal government. 

and providers. 29 The Data.gov program became the centerpiece of the administration's efforts to 

encourage agencies to make data more widely available to the public. The website now features 

more than 350,000 datasets, 1,200 data tools, and more than 130 mobile applications from 

agencies across the federal government. The website has organized data on different topics into 

16 issue-area "communities;' including ethics, health, law, and energy. But agencies have lagged 

at releasing inventories of their datasets, which prevents users from knowing what important 

datasets might still be missing from Data.gov. 

There has also been progress on building a government-wide infrastructure for the Freedom 

ofInformation Act (FOIA) process. Several agencies collaborated to develop FOIAOnline, 

which launched in October 2012.30 The multi-agency portal, long a goal of open government 

campaigners, allows the public to submit and track ForA requests, receive responses, and search 

others' requests through a Single website. The platform is also expected to improve the efficiency 

of agency processing of requests. 

The administration has also improved the tracking of rulemaking within the executive 

branch that determines how laws are implemented. The Obama administration has improved 

Regulations.gov, the government-wide e-rulemaking portal, to make the site more userfriendly. The site received an aesthetic redesign, upgrades to its search capabilities, easier 

docket navigation, and better access to regulatory data. In addition, President Obama issued 

a memorandum directing agencies to publish more data abont their regulatory enforcement 

activities.3l Nevertheless, rulemaking dockets are still complex to navigate, and important 

information such as cost-benefit analyses can be difficult for even experienced users to find." 

Many agencies and the White House have begun to make wider use of social media, such as 

Twitter and Facebook. As Hurricane Sandy approached the East Coast, the Federal Emergency 

29 "Data.govto Bring Unprecedented Access to Government Information:' press release, Office of Management and Budget, May 21,2009. 

http·{/w·wy.'whitehQ!!se gov/orub/news 05} 1 09 data. 

30 "National Archives Joins Federal Agencies to Launch New Freedom of Information Act (FOIA) Online System:' press release, National 

Archives and Records Administration, Oct. 1,2012, http'l/ww .... ·archjyes goy/presslpress-releases(lQ13lnr13-0J htm!. 

3l Barack Obama, "Regulatory Compliance," memorandum, The White House, Jan. 18,2011. httRflwww·whjtehQu~e.gQvlthe-pn'ssoffice!2QllI01/18fgresjdenlial-meworanda.regulatqrv"cowpliance. 

32 "Highlighting the Benefits in Cost-Benefit Analysis;' OMB Watch, Sept. 11, ::!012. http·!!wm.[ordfcctivegqyorgfhighljgbting_the.lx;nefiu_ 

in-cost-benefit-analysis. 

23 
148 


Insert offset folio 106 here 80143.106

24 

Management Agency (FEMA), the National 

,Neather Service, and other federal agencies 

used Facebook and Twitter feeds to keep the 

public informed and help them prepare for the 

storm.33 The administration has taken several 

steps to facilitate the use of social media, including 

publishing gUidance in several areas to facilitate 

agency adoption and signing government-wide 

contracts with several popular services. 

One of the latest steps the administration took to 

improve government websites and online tools 

was the Digital Government Strategy, released 

in May 2012.34 1he document is an ambitious 

and forward-looking plan with the potential to make government more transparent, efficient, 

and accessible. The strategy requires agencies "to adopt new standards for making applicable 

Government information open and machine-readable by default:' lhe strategy requires agencies 

to develop new mobile applications, to make high-value datasets easier for programmers to tap 

into for new uses, and to improve interoperability between agencies. In addition, the strategy 

created a new support office, the Digital Services Innovation Center, and an advisory group to 

assist and guide agencies' modernization efforts. 

Records management is an ongoing challenge for every administration due to the sheer amount 

of information collected and processed at the federal level. Dozens of federal agencies, comprised 

of an estimated 2.8 million federal employees, exist," each generating information every day 

- reports, databases, e-mails, and so on. Add to that the tens of thousands of companies filing 

regulatory information, as well as communications with the public, and records management 

quickly becomes a daunting task. Properly implemented, electronic information collection 

and records management will make information more accurate, faster to find, and easier to 

share eventually. Yet despite the importance and benefits of modernizing records management, 

33 Jacqueline Baylon, "Hurricane Sandy: Authorities use social media to keep people informed:' Denver Post, Oct. 29, 20l2. ht!l?'Uwww 

~/di&itaJ"first-medja!ci 2188081Sfhurrkane-sandy-s(1cial-meuia. Also sec "Hurricane Sandy Highlights Role of Government 

Information in Our Everyday Lives>~ Center for Effective Government, Nov. 5, 2012. httppwwwfQretfectiyegQyorg/sandy-highlight~-mle-Qf.gQvinfo.in.Qur-everyday·liyes. 

34 Steven VanRoekel, ~Roadmap for a Digital Government;' Office a/Management and Budget B/ag, May 23, 2012. httpPwwwwhjtehousegoy/ 

h!orI2012fOSf21,froadmap-digital-Mvernment. Also see "Ohama Plans to Further Harness Technology for Transparency:' Center for Effective 

Government, May 30, 2012. http-flwwwforeifectivepvorg/nQde/12QS9. 

35 Emplo}ment, Hours, and Earnings from the Current Employment Statistics survey (National), Bureau of Labor Statistics. Feb. 25, 2013. 

http·/ldata.hkgoylt!mesrriqICES909100()001. 
149 


Insert offset folio 107 here 80143.107

agencies have struggled to shift from paper records or rudimentary electronic formats to modern 

records management. 

To address this issue, the administration 

has made substantial progress in creating 

a plan and specific requirements that 

would move all agencies to modern and 

consistent management of records. In 

September 2011, the administration 

pledged to modernize the management of 

government records and move toward "a 

111ere has been "a sea change in the 

attention of the government ... to the 

problem of not just managing but 

preserving electronic records;' said 

Patrice McDermott, executive director 

of OpenTheGovernment.org. 

digital era, government-wide records management framework that promotes accountahility and 

performance:'" In November 2011, a presidential memorandum directed agencies to create and 

report their plans for improving records management and to identity any obstacles to effectively 

managing information." 

In August 2012, the administration issued the Managing Government Records directive, which 

requires agencies to shift to electronic record keeping and develop tools to manage and preserve 

e-mail records electronically. Unfortunately, the directive included long timeframes for change: 

agencies were given until the end of 2016 to manage e-mail records electronically and until the 

end of 2019 to manage key records in electronic format. Overall, the directive is expected to 

have a genuine positive impact on records management at agencies, but many would like to see 

implementation deadlines shortened. 

Even with these policy improvements, records management problems continue to occur. The 

correspondence of public officials can reveal why decisions are made and how policies are refined, 

including the possibility of inappropriate dealings with special interests. Yet government officials 

have been criticized for using personal e-mail accounts for official matters. Though regulations 

allow such non-agency e-mail so long as records are preserved," the concern remains that 

these records will not be tracked, searched, or retained. After a problem with personal e-mail 

accounts" in 20ID, the Office of Science and Technology Policy (OSTP) issued a new policy 

requiring officials to conduct communications through government accounts and to forward 

36 lhe Open Government Partnership: National Action Plan for the United States Of America, lhe White House, Sept. 20, 201 L ~ 

whitehouse goy/sites/d!'faultffi!es{us natjonal action plan final" pdf 

37 BanKk Ohama, "Managing Government Records," memorandum, lhe White House, Nov. 28, 201 L http)/wwwwhitehQIlS€ goy/the pressoffice/2Qj 1111128/presidential-memorandum-managing-gmwpment-rrcorrls. Also see "OMB Watch Praises Presidential Memo aD Modernizing 

Records Management;' press release, OMB Watch, NoV. 28, 2011. http·/!Y-iy{wfQrelIectivegovorg/oodeI11924. 

38 36 CFR 1236.22. 

39 David Perera, "Rep. Issa presses Wltite House on Gmail:' FierceGovernmentIT, April 14, 2010. hnp·/lwwwfiercegQvetnroeotit cowhtoryfrepissa-presses-white-house-gmailf2010-Q4-14. 

25 
150 


Insert offset folio 108 here 80143.108

v 

p 

<: 

m 

::v 

Z 

Gl 

a 

2 

a 

v 

en 

2 

~ m 

::v C:Z 

:::s: :.:?m 

"'.2 S--1 

Q 

Q, 

26 

work-related e-mails on personal accounts to government accounts,40 Similarly, despite the \Vhite 

House blocking external e-mail systems,'! a June 2010 New York Times article reported that 

"[sJome lobbyists say that they routinely get e-mail messages from White House staff members' 

personal accounts rather than from their official White House accounts:'" In November 2012, 

it was revealed that US. Environmental Protection Agency Administrator Lisa Jackson used an 

alias account under the name "Richard Windsor:' While the agency claims the use of such aliases 

is normal practice to allow for easier internal communications, it could impede complete and 

effective responses to requests for communication records. There have been several inquiries 

about this practice from Congress, and in December 2012, the EPA Inspector General launched 

an investigation.43 

Freedom of Information (FO/A) 

The Freedom of Information Act (FOIA) has long been considered one of the most fundamental 

tools to ensure open government at the federal level. Requesting government information 

through a FOIA request is the primary way the public accesses records that aren't proactively 

made available through agency websites. However, long delays in agency responses (sometimes 

years) due to large backlogs of requests are common. There are also concerns that some agencies 

overuse exemptions from the law to excessively withhold documents from disclosure. These 

problems have led persistent requestors to pursue lawsuits to force disclosure. This can make 

obtaining government information more costly for both agencies and the public, and it means 

that when the requested information is finally released, it may no longer be timely. 

In its first term, the Obama administration demanded faster FOIA processing and tried to 

improve the process for obtaining access to government records. ':Agencies should act promptly 

and in a spirit of cooperation" when processing FOIA requests, according to a presidential 

memorandum issued on Obama's first full day in office." "Each agency must be fully accountable 

for its administration of the FOIA;' wrote Attorney General Eric Holder in his 2009 memo, which 

40 John P. Holdren, "Reminder: Compliance with the Federal Records Act and the President's Ethics Pledge; Office of Science and Technology 

Policy, May 10,2010. hm,./lasse!S.fien:emarkets.cQm/publiclsilqlgo .... jt1ostp-emp!Qyees pdt 

41 Brook Colangelo, ~Letter to Meredith Fuchs and Anne Weismann;' Executive Office of the President, Jan. 15,2010. http·I/y.)'iWgwu 

ed\Jl nSilrrblylnewsl2Q! 0011 'ial\VH lelter.pdf 

42 Eric Lichtblau, ''Across From White House, Coffee With LobbyiSts;' The New York Times, June 24, 2010. http-!IwY'ry.'pytjmescom12QiQ(Qfi!"S/ 

us(po!jtiq/2'icarihQu.htmL 

43 Based on a court order, the agency is releaSing thousands of e-mails from the Richard Windsor account. See Juliet Eilperin, "EPA IG 

audits administrator's private e·mail account:' The Washington Post, December 18, 2012. http'lfartides wi!~hingtQDpost cOIDI20l2·12· !Sf 

natiQnalr35908210 I e-mail-accqynl-audB-mnsparenry. 

44 Barack Obama, "Freedom ofInformation Act;' memorandum, The White House, Jan. 21, 2009. http'f!wwwwhitchQuscgoy/the press officc/ 

FreedomofinformationAct. 
151 


Insert offset folio 109 here 80143.109

also established new reporting requirements about how agencies are implementing the law." In 

2009, the Open Government Directive tasked agencies with significant backlogs of FOrA requests 

to reduce them by 10 percent annually.''' Another 2010 memo directed agencies to "assess 

whether you are devoting adequate resources to responding to FOIA requests:'47 

Despite these admonitions, overall performance on FOIA in the first term was mixed. For 

instance, the Obama administration had processed more FOrA requests in fiscal year 2011 

than in any year since 2005, and the use of exemptions to deny requests dropped, especially the 

discretionary exemptions. However, agencies' combined backlog grew by 19 percent because of 

an even larger surge in FOIA requests. 

The Justice Department's approach to FOrA litigation has been problematic. For instance, in 

Milner v. Department of the Navy, Justice Department lawyers argued that information about 

the safety of explosives stored on a Navy base in Washington State could be withheld under 

FOrA's Exemption 2, which covers information "related solely to the internal personnel rules 

and practices of an agency:' That "odd reading" of the law, wrote Justice Elena Kagan in 2011 

in the U.S. Supreme Court's 8-I ruling against the government, "would produce a sweeping 

exemption, posing the risk that FOrA would become less a disclosure than 'a withholding statute:" 

In 2011 oral arguments before the Court in Federal Communications Commission v. AT&T, the 

government argued that it does "not embrace [the] principle" that FOrA exemptions should be 

narrowly construed - contrary to Supreme Court precedent and the longstanding view of open 

government experts. 48 

The federal government spends over $1 trillion each year on salaries, contracts, grants, rent, 

disaster assistance, and more. Transparency around this spending is essential to increased 

accountability. We need to ensure the federal government, and those chosen to perform work 

for it, are acting in the public interest and maximizing value. Although the administration 

has encouraged the use of new technologies to increase the transparency of federal spending, 

challenges with data qUality and the scope of spending data disclosed remain. 

45 Eric Holder, "The Freedom of Infonnation Act (FOIA); memorandum, Office of the Attorney General, March 19, 2009. http'llwwwhlSlip' 

gQv/ag/fQia~memowmarch2QQ9 pdf. In 2012, the Justice Department also directed agendes to begin reporting key data quarterly rather than 

annually; see Melanie Ann Pustay, "New Quarterly FOIA Reporting Beginning January2013," The FOlA Post, Dec. 4, 2012. http'/fbIQgsjllStjcegoY! 

oip/archjve51952. 

46 Peter R. Orszag, "Open Government Directive;' memorandum, Office of Managemen{ and Budget, Dec. 8, 2009. http://wwwwhjteholl$e.goy/ 

open/documents!open-goyernment-djrectjye. 

47 Rahm Emanuel and Bob Bauer, «Freedom of Information Act," memQrandum, The White House, March 16, 2010. http'/fwyywarchiyeseQ,,! 

ogis!memos/(oja-memo-Q3-16.1 Q pdf. 

48 Federal Communications Commission, et al,. v. AT6-T. et ai., Oral arguments before the U.S. Supreme Court, Jan. 19, 201 L btllr ffwwwgWI! 

Cdll/ _nsarchjy/news!20120214fFCC%20v% ?QATT%20Q9-1279 pdf. 

27 
152 


Insert offset folio 110 here 80143.110

28 

One of President Obama's first tasks was developing and implementing the American Recovery 

and Reinvestment Act," also known as the stimulus bill. The president promised that "every 

American will be able to go online and see where and how we're spending every dime" of stimulus 

money.;o The law included requirements to post online more detailed information about grants 

and contracts. Within months, the administration set up Recovery.gov, an impressive website that 

contains information about who received stimulus funding and what they are doing with those 

funds. Interactive mapping, informative graphs, spending summaries, and agency profiles were 

added over time. 

In 2010, the Obama administration upgraded USAspending.gov, the website for information 

about government-wide spending, with several new features that provided users with greater 

search capabilities, interactive summaries, and tools to analyze trends over time. However, 

many of the transparency innovations from the Recovery Act have not yet been applied to 

USAspending.gov. For example, USAspending.gov borrowed an idea from Recovery.gov and 

began posting information on sub-contractors and sub-grantees of federal spending, but failed to 

connect information about the sub-contractors and sub-grantees to data about the prime awards. 

USAspending.gov also has not yet replicated the usability and clarity of the Recovery.gov website. 

There have been other notable attempts to improve spending data. The 2009 Open Government 

Directive established a process aimed at improving the accuracy of spending data. 51 President 

Obama established the Government Accountability and Transparency Board in June 2011 and 

called for recommendations on how to better collect and display government spending. 52 The 

board provided its recommendations in December 20 I L While some suggestions are being 

explored, no plan to implement them government-wide has yet been proposed. Although 

significant problems with spending data quality remain, the administration announced in 

February 2013 that it would issue further guidance on improving the data." 

Additionally, other Significant improvements in spending transparency have faltered when 

proposed. For instance, several agencies proposed the possibility of posting copies of federal 

49 P.L lll-S. 

50 "Opening Remarks of President Barack Obama-As Prepared For Delivery; The White HOllse, Office of the Press Secretary, Feb. 9, 2009. 

http·!fwy,'Wwhitehouse gov/the-press-officelopening-remarks-pres!dent-bawk-ohama-pwpared_delivery. 

51 Peter R. Orszag, ~Open Government Directive;' memorandum, Office of Management and Budget, Dec. 8, 2009. http·thlrwwwhitehQmqoy/ 

openfdocumcnts/open-Imyernmeut-dirrctivr. 

52 Barack Ohama, Executive Order 13576, uDelivering an EffiCient, Effective, and Accountable Government:' The White House, iune 13, 2011 

http'ltwwwwhitehollg; gov/the_prm_officeI2OJ l/Q6/1 3/exer1l1ive_order_ddiycrjng_efficlcm_etfeC\ive_and_accmlntahle governmen, 

artlclest>Ol 

53 Camille 

~/Q2! 

Tuutti, 

131()mb-guidance-

"OMB guidance 

usaspending.aspx, 

promised to ensure USASpending accuracy;' Federal Computer Week, Feb. 13, 2013. ~ 
153 


Insert offset folio 111 here 80143.111

contract documents online" but withdrew the idea a few months later. 55 1be administration 

also never announced a position on the DATA Act, a bill designed to strengthen spending 

transparency, which passed the House in April 2012.56 

54 «Federal Acquisition Regulation: FAR Case 2009·004, Enhancing Contract Transparency:' Department of Defense (DOD), General 

Services Administration (GSA), and National Aeronautics and Space Administration (NASA), May 13, 2010, 75 FR 26916. hltns-f/fedrralregisfrr 

gQyia!2QJQ·J118J. 

55 "Federal Acquisition Regulation; Enhancing Contract Transparency;" Department of Defense {DOD), General Services Administration 

(GSA), and National Aeronautics and Space Administraiion (NASA), Feb. lO, 2011, 76 FR 7322. https-llfederalregi'lergQv/il!2fl!1_2200. 

56 H.R. 2146 in t.l.JC 112'" Congress. 

29 
154 


Insert offset folio 112 here 80143.112

ONE HUNDRED THIRTEENTH CONGRESS 

\Congres'5 of tbe 'ldnitcb ~tatc5 

:T!Jous'c of l.\cprc!Ocntatiilc!O 

COMMITTEE ON OVERSIGHT AND GOVERNMEhT REFORfv1 

2157 RAYS:.J"iN Hous;:: OFFICE BUILDiNG 

WASH1"lGTON, DC 20515-6143 

Opening Statement 

Rep. Elijah E. Cummiugs, Ranking Member 

Hi~AH t Cl)MMI"CS, fMo8YLAND 

P .. \~!KIr,,~ MINflR 'fY IMy,,,,,:n 

Hearing on "Addressing Transparency in the Federal Bureaucracy: 

Moving Toward a More Open Government" 

March 13,2013 

Thank you, Mr, Chairman. for holding this hearing, This is Sunshine Week, when we 

celebrate the importance of transparency and openness in government. Sunshine Week is also an 

appropriate time to conduct oversight and evaluate the state of transparency in our government, 

On his first day in office, President Obama made clear that open government would be a 

priority in his Administration, The President issued a memo on transparency that formed the 

basis for the Open Government Initiative, a comprehensive set of efforts to increase public 

access to government information, 

Also on his first day in office, the President issued a memo on the Freedom of 

lnfonnation Act, reversing the Bush Administration's presumption against disclosure and 

instituting a presumption in favor of disclosure, And the Attorney General issued a memo 

informing agencies that the Justice Department wouJd not defend FOIA deniaJs in court unless 

agencies have a reasonable belief that there will be foreseeable harm from disclosure, 

I think it is fair to say that the President jump-started transparency efforts in the 

Executive Branch, and there have been significant successes in the last four years. However, 

there are still areas in need of improvement, and we can always do betier. 

I ask unanimous consent to place in the record a report issued this week by the Center for 

Effective Government titled, "Delivering on Open Government: The Obama Administration's 

Unfmished Legacy," This report finds as follows: 

"To secure its legacy as a champion of transparency, the administration will need to do 

more to ensure that agencies actually implement the transparency policies it established, 

address gaps left in its policy reforms, and improve its record on national security-related 

secrecy." 
155 


Insert offset folio 113 here 80143.113

In addition, one of the criticisms in the report is aimed at Congress. The report finds that 

the "slow pace of secrecy reform within the executive branch has been aided and abetted by a 

lack of robust oversight from Congress." 

I agree that bipartisan oversight is critical to holding agencies accountable. That is why 

Chairman Issa and I recently worked together to send a letter to the Justice Department asking 

for information about several issues of concern regarding FOIA implementation. 

In addition, Congress can make it easier for the American people to obtain access to 

government records. This week, the Chairman and I are releasing a draft bill called the FOIA 

Oversight and Implementation Act In the spirit of transparency, we have made it available on 

the Committee's website, and we welcome feedback before we formally introduce it This bill 

would codify in law what the President has done administratively: it would establish a legal 

presumption under FOrA in favor of disclosure. It would also create a pilot project to give ForA 

requesters a single place to make requests and access records electronically. 

r appreciate the Chairman's bipartisan work on this bill, and I hope we will take swift 

action to get it on its way to becoming law. I am also pleased to be cosponsoring a bill that 

Representative Clay is introducing this week to improve the transparency and accountability of 

federal advisory committees. 

I look forward to hearing from the witnesses here today about these proposals and any 

other ideas you might have for shining light on our government's operations. 
156 


Insert offset folio 114 here 80143.114

Expo%>ing Corrupti",n, ExPloring Solutions. 

March 20, 2013 

To: Chairman Danell E. Issa and Ranking Member Elijah Cummings, House Committee on 

Oversight and Government Refonn 

From: Angela Canterbury. Public Policy Director 

Re: Request to Supplement Angela Canterbury's Testimony in the March 3, 2013 

Hearing Record 

Respectfully, I'd like to clarify something from my oral testimony and provide some additional 

recommendations sought by members of the Committee during the hearing, particularly in 

response to Representative Meadows' concerns about the consistent violations of the 20-day 

deadline for responding to Freedom of Information Act (FOIA) requests. 

First, there are some consequences, though perhaps not real and substantial, in the law for 

violating the 20-day rule for disclosure. The "OPEN Government Act of2001" prohibits 

agencies from charging fees if they do not respond within 20 days in most cases, But, 

unfortunately, many agencies are not following the law in this respect, and most agencies have 

not updated their regulations to reflect this change in the law. As wc discussed, many agencies 

are asserting that they are meeting the 20-day deadline by simply acknowledging receipt of the 

request. This is also the opinion that DO] has adopted in litigation-though we strongly 

disagree. Compliance with the law means producing requested materials within the deadline 

with some legal exceptions. During the hearing, I mentioned that agencies ought to pay for 

court appeals out of their own budgets. However, I must coneet and clarify that the FOIA has 

required this since the 2007 amendments.! Instead, to increase consequences for agencies that 

withhold until forced to disclose in an appeal, Congress might consider requiring agencies pay 

additional penalties and damages out of their budgets to requesters who prevail in appeals. 

There is another financial penalty that has been part ofFOIA since 2007, but it is not yet 

working welL An agency cannot assess search fees if its response to a requester is untimely, 

unless unusual or exceptional circumstances apply to the processing of the request. Moreover, 

when a non-commercial requester is a news media representative or an educational or noncommercial scientific institution (a "scholarly requester"), an agency cannot assess duplication 

fees for an untimely response except where unusual or exceptional circlllllstances apply. 

Agencies often flout this penalty. Some agencies still insist on requesters' agreement to pay 

search and duplication fees long after FOlA's time limits have expired. They do so without 

telling FOIA requesters about FOIA's financial penalty provision and in circumstances that are 

neither unusual nor exceptional, as those tenns are defined in FO IA. 

! 5 U.S.c. § 552(a)(4)(A)(viii). 
157 


Insert offset folio 115 here 80143.115

Moreover, many requesters are not aware of FOIA's financial penalty provision, so they do not 

know to rely on it when dealing with agency fee demands or when administratively appealing 

fee waiver denials. According to a recent audit by the National Security Archive, 56 agencies 

have not updated their FOIA regulations since the Open Government Act of 2007, when 

Congress added the financial penalty provision. 2 As a result, requesters cannot look to those 

agencies' regulations for information about the financial penalty provision or when it applies. 

The reforms proposed in H.R. 1211, the FOIA Oversight and Implementation Act of2013 

would provide opportunities to do so by mandating the agencies update their regulations and a 

study of how to fix FOIA. There are ways to encourage enforcement which should be explored. 

Other recormnendations Congress should consider requiring: 

(l) Any agency attempting to assess search or duplication fees based on a 

determination that occurs more than 20 days after submission of a FOIA request to 

provide in correspondence to the requester the basis for the agency's authority to 

assess such fees, that is, explain why the agency believes it is not precluded by 

FOIA's financial penalty provision from assessing the fees; 

(2) Agencies that fail to provide the disclosure in suggestion (I) above to waive search 

fees, and in the case of news media or scholarly requesters, duplication fees, 

regardless whether unusual or exceptional circumstances apply; and 

(3) Agencies to report the number oftimes they assess search fees (and in the case of 

news media or scholarly requesters, duplication fees) based on a FOIA 

determination that occurs more than 20 days after a request was submitted. 

Congress should also consider requiring agencies to report those same fee 

assessments if they are based on a determination that occurs more than 30 days 

after a FOIA request was submitted; such reporting would capture assessments that 

rely on "exceptional circumstances," as provided by 5 U.S.C. § 552(a)(4)(A)(vii). 

Under current law, an agency must make a determination on a FOIA request within 20 working 

days (or 30 working days, in the event of unusual circumstances). If the agency fails to provide 

a timely determination, the FOIA requester may file a lawsuit to compel disclosure. FOIA's 

provision for an irmnediate right to seek judicial review in the face of agency delay is a critical 

tool to prod agencies to respond to FOIA requests. 

As I mentioned in my written testimony, the D.C. Circuit is considering in an ongoing case 

about what constitutes an adequate determination under FOIA. 3 We believe that under current 

law, an agency must provide a substantive response to a FOIA requester within FOIA's time 

limits: The agency must tell the requester whether it will grant or deny the request, provide 

2 National Security Archive, Outdated Agency Regs Undermine Freedom of Information, 

http://www.gwu.edul-nsarchivINSAEBBINSAEBB405/. 

3 Citizens/or Responsibility and Ethics in Washington v. Federal Elections Commission, 

No. 12-5004 (D.C. Cir. filed Jan. 9, 2012). 

2 
158 

Æ 


Insert offset folio 116 here 80143.116

reasons for its decision, and notify the requester of his right to administrative appeal if the 

request is denied in full or in part. However, the Department of Justice filed a brief asserting 

that an agency need not provide this kind of substantive response to a FOIA requester within 

ForA's time limits. Rather, under DOl's view, an agency satisfies FOIA ifit tells a requester 

that it will provide at least some records at an indeterminate future time beyond FOIA's time 

limits. If the Department of Justice's position prevails in court, an amendment to FOIA will be 

required to make clear that agencies must provide substantive responses to requesters within 

the statutory time limits. However, is not necessary to amend the law at this time because it is 

clear that a substantive response is required. I urge you to be watchful of this decision, and 

take legislative action only if necessary. 

3