National Archives and Records Administration
Archivist of the United States David Ferriero opened the National Archives and Records Administration’s (NARA) celebration of Sunshine Week, followed by two panels of experts discussing the intersection of technology and open government by outside entities (such as MuckRock, GovTrack, and the Open Technology Institute at New America) and innovative government initiatives (such as the U.S. Digital Service, NARA’s Office of Innovation, and 18F). The event was streamed live from the National Archives, and the video is available for viewing.
Three speakers addressed the future of technology as it relates to open government. First, Andrew Lih, a professor at American University, talked about Wikipedia as a learning tool, as well as related sites Wikidata and Histropedia. Archon Fung, a professor at Harvard University’s John F. Kennedy School of Government, told the audience that we have passed the stage of information-on-demand (“In a democracy, information is a right.”) and the stage of “naked government”—the presumption that information should be “out there” for citizens to use. Fung said we’re entering the next stage of “infotopia,” or democratic transparency: “People should have the [government] information they need to protect their interests, to make democracy together, to make the important decisions that affect their lives.” According to Fung, this third stage requires five changes, the most important of which is the extension of transparency beyond government to “all of the organizations that affect people’s lives,” including colleges and corporations. The final speaker (via video) was U.S. Chief Technology Officer Megan Smith.
Sen. Patrick Leahy (D-Vt.) was the afternoon’s keynote speaker. He devoted much of his talk to the need to pass the FOIA Improvement Act to bring the law into the 21st century. VICE News’ Jason Leopold reported that the Obama administration worked behind the scenes to undermine FOIA reform bills in 2014, and they were “never put up for a final vote.” President Barack Obama would sign a FOIA reform bill that passed in the Senate on March 15 (S 337) “if it reaches his desk in that form,” a POLITICO blog notes. (The House of Representatives passed a similar version of the bill in January 2016, but it is expected to consider the Senate’s version.)
In his speech, Leahy also advocated for public confirmation hearings for President Obama’s nominee to replace Justice Antonin Scalia on the Supreme Court. He closed his remarks with, “[L]et the sun shine in.”
Richard Huff, former co-director of the Department of Justice’s Office of Information and Privacy, closed the day by reviewing recent FOIA litigation. Perhaps the highlight of the event was the ability of those present to view the copy of FOIA signed by President Lyndon Johnson.
FOIA Requests (and Responses)
Sunshine Week is an appropriate time for analyzing the progress made or not made in terms of federal agencies’ responsiveness to FOIA requests. The Department of Justice issued its annual report summarizing federal agency FOIA activities, including the number of FOIA requests and appeals received, processed, and still pending. The FY2015 data shows that FOIA offices processed a record number of requests (769,903) and that a smaller backlog remains (102,828 requests, a 35.6% decrease from the number reported in FY2014).
The AP’s analysis of government data provides another view of agency responsiveness to FOIA requests: “In more than one in six cases, or 129,825 times, government searchers said they came up empty-handed last year. Such cases contributed to an alarming measurement: People who asked for records under the law received censored files or nothing in 77 percent of requests, also a record.”
Agencies are beginning to publicly announce FOIA requests. Commercial entities have gotten in on the act too, primarily focusing on a single agency. For example, Probes Reporter has been filing more than 2,500 FOIA requests with the Securities and Exchange Commission (SEC) each year since 2000. The results of those requests are made available to subscribers in the firm’s “FOIA Update” report. Another report, “FOIA Update—Nothing Found,” “identifies those companies on which we recently received information from the SEC to indicate the absence of recent investigative activity.” What if all FOIA requests completed by an agency were made public so that the rest of the world could use the material? Consider the U.K.’s mySociety project, WhatDoTheyKnow, or MuckRock’s request list as models for sharing the results of a FOIA request and allowing others to repurpose the information.
FOIA will turn 50 on July 4, 2016. Amended several times through the years, its original intent holds steadfast: Individuals have the right to access government records, unless the records are subject to one of nine exemptions (e.g., they endanger national security, violate personal privacy, reveal privileged communications, or interfere with law enforcement). It seems that given changes in society, technology, and the flow of information since 1966, Congress should consider modifying FOIA as it marks this milestone. OGIS has a list of FOIA events, and Twitter uses #FixFOIAby50.
Other Government Transparency News
The Sunlight Foundation launched the Hall of Justice, “a robust, searchable data inventory of nearly 10,000 datasets and research documents from across all 50 states, the District of Columbia and the federal government.” In other news, the foundation retired its congressional information website, OpenCongress. Users are redirected to GovTrack, which “tracks the United States Congress and helps Americans understand what is going on in their national legislature.” GovTrack has incorporated Email Congress into its site for seamless congressional research and advocacy efforts.
The Federal Advisory Committee Act (FACA) Amendments of 2016 (HR 2347) passed in the House on March 1, 2016. It amends FACA “to modify and expand requirements for federal advisory committees.” For example, “subcommittees would have to meet publicly and provide advance notice of their sessions. In addition, meeting minutes and other records would be posted online and ethics rules would be clarified,” a POLITICO blog reports.
The FBI launched eFOIPA, “a second public beta version of its online portal for processing Freedom of Information Act requests,” according to FedScoop. eFOIPA also accepts Privacy Act requests (hence the “P”). Unlike the first version, this new one does not require a government photo ID in order for a request to be considered.
The Department of Defense “asked Congress to enact a new exemption from the Freedom of Information Act for military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive,” the Federation of American Scientists (FAS) notes.