Exemption 10

Government needs standards for information it puts online

Posted: April 7, 2011 | Tags: FOIA, Freedom of Information, Rep. Steve Israel, Sunlight Foundation

The future of efforts to make the federal government more transparent and access to federal information easier is a bit muddy at the moment, to say the least.

Funding for such sites as data.gov and usaspending.gov would be wiped out or sharply curtailed under some of the budget proposals being considered in Congress.

But access to information online would be greatly expanded under legislation introduced this week by Rep. Steve Israel, D-N.Y., and Sen. Jon Tester, D-Mont.

Israel and Tester introduced the legislation last year, but it went nowhere. Its key requirement is that all publicly available information be posted online.

“Every day, 78 percent of American adults use the Internet. It’s become our first stop for news and research. Our government needs to catch up,” Israel said in a news release. “People across the country —from scholars to schoolchildren — should be able to see any public government information from the convenience of their computer. Public should mean online.”

Among the types of information Israel says would be available online that isn’t at the moment:

  • Annual pension plan filings showing how plans are funded, and the underlying assumptions behind their investment strategies.

  • Reports disclosing lobbying activities by government contractors and grantees made in connection with winning a grant.

  • Filings by high-level government officials of their personal financial interests.

  • Reports of when executive branch officials’ travel is paid for by third parties, and not the government.

  • Tax returns of nonprofit organizations.

  • Videos maintained by the National Archives.

One shortcoming of the Israel-Tester proposal is that it only requires Executive Branch agencies to post data. There is no reason why information about the administrative functions of the legislative and judicial branches should not be covered as well.

Agencies would have three years to comply with the law, which would be known as the Public Information Online Act (POIA). Documents generated before the bill became law would not have to be posted.

We certainly agree that having more government information easily accessible to more people is a good thing. But we have some concerns about how these policies are implemented.

There may be some in government who might see these transparency efforts as a substitute for full compliance with Freedom of Information Act. They aren’t and are unlikely to ever be. In fact, Israel says the bill includes what he calls “common sense exemptions” for trade secrets, matters of national security, personal privacy and other information that is exempt from disclosure under the Freedom of Information Act.

There, unfortunately, is no agreement on what constitutes a “common sense” exemption, so we will still need FOIA to challenge agencies when they refuse to turn over records.

Just as an example, the Federal Reserve Board recently released details about which banks were borrowing from its discount window during the height of the financial crisis. But the Fed didn’t do that voluntarily: It took a Supreme Court case to force the data into the open.

Another issue is data quality. Government data files are often full of errors. Agencies should be more diligent about making certain that what they release is complete and accurate.

A case in point here: usaspending.gov, which on the surface is a wonderful tool that is designed to provide details of government contracting, among other things. But when the Sunlight Foundation, which is leading the charge to keep the site funded, checked last year, it found that more than a trillion (yes, with a “t”) dollars wasn’t properly reported.

And, of course, there is the issue of what data is voluntarily disclosed. The Fed case is one example. Last year, with great fanfare, the Obama administration required agencies to post at least three “high-value” datasets on data.gov.

Here is the OMB’s definition (PDF) of “high-value”: “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.”

Among the data sets that qualified: The Defense Department’s FOIA logs.

What is really concerning is the ability of those in power to release data they think might cast them in a positive light and withhold information and documents they think would be harmful to them.

For example, when the Investigative Reporting Workshop began writing about who was receiving stimulus-funded grants to build wind farms, the Treasury Department was routinely making announcements of grants. After our story showed that much of the money was going to overseas-based firms and doing little to create jobs here, those news releases stopped. The administration kept releasing the information, but in a spreadsheet file buried deep on the Treasury Department website. 

To date, more than $6.8 billion -- twice the original cost estimate for the program -- has been given out to more than 2,400 recipients, but the public list of grants no longer shows individual grants, instead grouping them by recipient, and no longer shows the project the money was given to, only the corporate entity (often a shell corporation or subsidiary, with an obscure name, set up to manage a project). Without a lot knowledge of how the renewable energy industry works, the many subsidiaries a company might have and which projects they've received grants for, this public list of grants isn't particularly useful. In short, whatever small amount of transparency this program once had is slowly being obscured.

After the Sept. 11 terror attacks, the Bush administration started withholding databases on the condition of the nation’s bridges and dams, even though the data had long been available to the public. And after a lot of publicity about data.gov, the Obama administration quietly took down some datasets last year.

To prevent these and other problems, Congress should establish some principles and standards for these proactive disclosures, including:

  • Agencies should make every effort to ensure the completeness and accuracy of any data they disclose. This includes timely updates.

  • Once information has entered the public domain, it should remain there.

  • Data should be in easy-to-use formats (this is one thing that data.gov gets mostly right). To be clear, for most purposes, files that contain data should not be posted as PDFs.

  • Agencies should make the format and layout of their files consistent over time. The Federal Election Commission, one of the first agencies to post data electronically, has done a fairly good job of this. The Federal Deposit Insurance Corp. also achieves this goal.

No doubt there are other guidelines that could be implemented. And we hope that they are part of any consideration for funding and extending the helpful efforts at making government more open and transparent.

Recent Posts

No, government is not too open

March 13-19 was Sunshine Week — a nationwide celebration of access to public information. Across the country, the week was marked by panel discussions, workshops and other events about using and understanding the latest developments in freedom-of-information resources. One of those was an event at the University of Missouri in which Charles Lewis, the Workshop's executive editor, argued that government has not become too transparent.

iFOIA's new site features tracking

Since 1996 the Reporters Committee for Freedom of the Press has offered a free letter-generating service to provide users with the correct language and structure for FOIA requests. Over the past year the committee looked for ways to expand this tool to better serve reporters. In recognition of the fact that a single investigation can require hundreds of FOIA requests, they sought to make it easier for journalists to track and organize records requests.

“Reporters are always trying to remember where they’ve submitted requests, how much time has passed since they made the request and who they need to follow up with,” said Emily Grannis of the new ifOIA website.

Privacy vs. the public's right to know

Scholars and watchdog groups say the federal government — and the Supreme Court — have slowly expanded privacy rights beyond the guidelines established in FOIA. Supreme Court decisions in five FOIA cases shed light on how the government came to value privacy interests over the public’s right to know.

 Subscribe to the RSS Feed



Follow the workshop at IRWorkshop