Congress moves to make transparency initiatives permanent

Lawmakers from both parties are pursuing efforts that would require agencies to post public information online by default, moves that would preserve for posterity elements of the Obama administration's open government agenda.

Rep. Steve Israel, D-N.Y., introduced on Tuesday the 2010 Public Online Information Act (H.R.4858), which would require all executive branch records to be searchable on the Internet inside a governmentwide electronic card catalog. Agencies would have to post all future public records to the Web within three years.

Later this month, some members of the House Oversight and Government Reform Committee plan to announce the formation of a bipartisan congressional transparency caucus that will pursue legislation to make government information more easily accessible online. Proposals are expected to include a stipulation that downloadable content that agencies post online should be located on a permanent Web site and a requirement that government data be released in formats any application can read and share with other software.

Many of these proposals exist in federal guidance issued by the Obama administration, including a Freedom of Information memo that requires agencies to follow a presumption of disclosure, a revised executive order on classifying national security information and an open government directive. But such policies are easy to scale back or even remove when a new president takes office. Codifying government data policies would allow these initiatives to survive a change in administration.

Government transparency professionals acknowledge there are similarities between the executive and legislative branch efforts, but add the congressional initiatives are more forward-looking.

"POIA is prospective," said Ellen Miller, executive director of the Sunlight Foundation, an open government group, who joined Israel in announcing the bill on Tuesday. "The open government directive is more of a retrofitting."

The directive set deadlines for specific steps that agencies must take to improve transparency, interaction with the public and collaboration with the private sector. The first assignment required federal managers to post online three data sets that had never been publicly available on the Internet.

But the directive does not overlook the challenge of changing how information is disclosed. It encourages agencies "to the extent practical" to proactively use modern technology to distribute information, rather than only releasing it in response to a Freedom of Information Act request.

Converting an untested policy such as the directive into law may be premature, said Andrew Rasiej, founder of the Personal Democracy Forum, an online community that analyzes the intersection between politics and the Internet. The directive was issued in December 2009.

"Now that it's been out, in order to prove compliance, the agencies have to show the public is interacting," said Rasiej, who suggested the idea for POIA to Israel. "It may be open source software that should be used" or some other technology solution to foster participation. He compared the purpose of the directive to a blueprint. Agencies need to spend time conceiving a workable architecture for open government before anyone makes it law.

Gary Bass, executive director of OMB Watch, a government watchdog group, said his organization could not support the POIA bill in its present form because the scope of content exempted from being posted online is unclear. One provision allows the federal chief information officer or the chief information officer at a regulatory agency to grant "narrow, case-by-case exceptions" if an agency can demonstrate "a clear and convincing reason for the record to not be made available on the Internet," and the harm resulting from disclosure outweighs the public's interest in obtaining the record online.

"If it's a discretionary call by the agencies, you're going to have a patchwork quilt" of exemptions, he said.

Bass also questioned why the bill does not state that in addition to making all public records searchable, agencies should ensure the content of each record is searchable. The open government directive specifies that agencies publish information in open formats so the data can be retrieved, downloaded, indexed and searched with commonly used Web tools.

In general, Bass gave POIA a grade of A-plus and said OMB Watch supports the principles behind it. But he wants Congress to hold a hearing to clarify the language. "We think that through the [legislative] process it can be fixed quite easily," he said. "We can work out these other little disagreements as the bill moves through."

Israel's office said the bill was drafted to allow for certain common-sense exceptions such as protecting trade secrets or national security. The bill does not call for material inside the records to be searchable because "technology changes quickly," Israel spokeswoman Lindsay Hamilton said. She noted there is a line in the bill that requires the use of "current information technology capabilities" for formatting and distributing records.

Sean Moulton, director of federal information policy at OMB Watch, said Congress' positive efforts to mandate government openness are not really intended to lock in Obama administration improvements. "Of course, having both the administration and Congress talking about transparency at the same time presents some unique opportunities to make major progress on the issue," he added.

White House officials said the president will continue to pursue policies that open the government to the American people, and they welcome congressional support. But the administration expects the president's directive will have a long-term impact.

"The open government directive is essential to changing the culture of government and embracing the tenets of transparency and accountability," said Tom Gavin, a spokesman at the Office of Management and Budget. "We believe that it will result in lasting change across the government to the benefit of the American people. It will result in greater transparency, participation and collaboration across the federal agencies."