Legislators claim culture of secrecy threatens open government

The Digital Accountability and Transparency Act got a boost on Capitol Hill March 13 when open-government advocates testified about the problems with transparency efforts and the legislative reforms needed to make government more open. Last year, the DATA Act passed the House but not the Senate.

In a hearing before the House Committee on Oversight and Government Reform, witnesses addressed the notion that the Obama administration’s rhetoric on open government often lacks the support of significant action. A March 10 report from the Center from Effective Government also reflected that sentiment, saying while some of the president’s transparency goals have been realized, others have seen more lip service than actual progress.

Chairman Darrell Issa (R-Calif.) described the situation as "two Obama administrations – one that talks about its commitment to transparency, but another that acts to keep information hidden from the American people."

Many agencies are wrestling to comply with posting frequently requested records online – nearly two decades after the legal requirement became law. For example, Freedom of Information Act requests have been particularly challenging. A March 12 analysis by the Associated Press showed agencies granted all or parts of records in roughly 65 percent of all requests and rejected more than one third.

Uneven transparency implementation starts at the highest echelon of the administration. Angela Canterbury, director of public policy at the Project On Government Oversight, said the president is not only trying to block classified information but seeks to hold back information he deems "otherwise confidential."

On March 12, Issa and committee ranking member Elijah Cummings, (D-Md.), released a discussion draft of Freedom of Information Act Reform legislation.

"This bill strengthens FOIA, our most important open government law, and makes clear that the government should operate with a presumption of openness and not one of secrecy," Cummings said.

The FOIA Oversight and Implementation Act of 2013 would place the burden on agencies to demonstrate why information should be withheld instead of citizens justifying its release. Agencies would also have to post online frequently requested information online.

Under the bill, the Office of Management and Budget would establish a single portal for FOIA requesters. OMB will have a year after enactment to set up a website where citizens can submit requests and check the status of their requests.

Additionally, the act would require OMB to create a Chief FOIA Officer Council, with agency chief FOIA officers as members. The council will have regular meetings to review FOIA compliance and discuss improvements. It will aim to have at least yearly public meetings where interested parties may submit statements in writing or in person.

The president also recently signed a statement that aims to clamp down on disclosures of unclassified information to Congress. The new protections for contractor and grantee employees "threaten to interfere with my constitutional duty to supervise the executive branch," Obama said, but the signing statement specifically objects to disclosures to Congress, Canterbury noted.

"You can’t do oversight and there won’t be checks and balances if the president is allowed to keep secrets from Congress," she added.

A more transparent government also means the administration must ensure information is accurate, complete and useful, said Daniel Schuman, policy counsel and director of the Advisory Committee on Transparency at the Sunlight Foundation.

The foundation’s recent Clearspending report found USASpending.gov often features inaccurate data. The analysis uncovered more than $1.55 trillion in misreported federal spending in 2011, which represents 94.5 percent of the total grant spending reported that year, according to the report.

The witnesses agreed legislation would serve as a forcing mechanism for agencies to comply with transparency directives. Without that element, Schuman said, "agencies simply don’t get the memo" and for whatever reason, act slow to respond to mandates. (Related: Cost to fulfill FOIA requests varies widely)

That type of reluctance has been particularly evident in the Justice Department. Canterbury said the agency often claims the right to withhold information and has created official policies that OK lying to FOIA requesters in certain instances.

The National Security Archive last year gave DOJ its annual Rosemary Award for worst open government performance, Canterbury noted in her testimony.

"There are real problems with DOJ, and one of the ways to deal with that is having an independent entity or authority to enforce FOIA," she said.

Initiatives such as the DATA Act and FOIA reform could also push transparency in the right direction. Schuman said the DATA Act would not just improve federal spending information but also enhance overall transparency. The bill would act as a "revolutionary transparency measure" for three reasons, he said in his testimony.

First, it would provide governmentwide systematic tracking of funds by incorporating unique identifiers for spending data. Second, a board whose sole focus is spending transparency would track spending. Finally, the act would release new data sets and allow for the automatic checking of spending information to ensure accuracy and reliability.