Steven Aftergood at Secrecy News reminds us that Friday July 4th is the 42^nd anniversary of Lyndon Johnson signing the Freedom of Information Act into law.  Interesting, but frankly, FOIA hasn’t aged well.  Meant to be “Democracy’s X-Ray,” allowing journalists and other citizens to ferret out waste, fraud, abuse and corruption the reality is that FOIA plays into the notion that government shouldn’t automatically provide information. I think it should.

This spring, I wrote an essay The Merciful Death of the Freedom of Information Act and the Birth of True Government Transparency: A Short History that was published in Rebooting Democracy, a compendium of some 44 essays, was released last month at the Personal Democracy Forum conference.  In the essay I keyed off a Jeff Jarvis blog post where he called for the abolition of FOIA. “Why should we be asking for information about and from our government?” he wrote. “The government should have to ask to keep things from us…Government information-every act of government on our behalf-should be free by default.” Digital technology and web-based tools now allow business transactions to be digitally captured, stored, and opened to search and analysis, he argued. This was not possible when the information was stored on paper in file cabinets.

But to get there, there has to be a sea change in the attitude of government. I think we are moving in the right direction but it will take time. But citizens are getting used to getting more information via the Internet and it makes them want more.

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Rebooting Democracy, a compendium of some 44 essays, was released earlier this week at the Personal Democracy Forum conference. It virtually - and for real (there was actually a real book produced. You can download it too) — seethes with the hopes and possibilities of re energizing, reorganizing, and reorienting our government for the Internet Age. It focuses on some fundamental questions: Is it possible to redesign our government with open doors and see-through walls? How can we leverage the exponential power of many-to-many deliberation for the common good?  It’s a really terrific collection with a remarkable group of authors.  My contribution is about what real government transparency means as FOIA dies.

The Merciful Death of the Freedom of Information Act and the Birth of True Government Transparency: A Short History

Looking back, maybe it was inevitable. Perhaps the well-intentioned yet fatally compromised Freedom of Information Act (FOIA) was doomed from the start, well before it died this year, in 2015. And yet, while FOIA was dying, true government openness was emerging to take its place.

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When President Bush signed the Open Government Act of 2007 on New Years Eve, the first reform of the Freedom of Information Act (FOIA) in a decade, one might have been tempted to believe the administration was reevaluating its embrace of hyper secrecy and warming to more openness and transparency. No such luck.

Over the weekend, Think Progress reported how the administration is now attempting to "neuter" the new law, which Congress wrote to open up government to more accountability. The law sets up the Office of Government Information Services (OGIS), designed as an ombudsman to provide independent oversight and settle disputes over FOIA requests. The law authorized funds to address backlogs in the requests and resolve the requests in a timely manner.

But the administration’s 2009 budget outline proposes shifting funds for the OGIS, estimated to be about $6 million, from the National Archives to the Department of Justice, where it would essentially die. Sens. Pat Leahy and John Cornyn, sponsors of the new law, are united in opposition to Bush’s efforts. Think Progress cites a Congress Daily (subscription required) report that quotes a Leahy aide as saying if the funds were shifted to Justice, the Office of Management and Budget "would effectively eliminate the office, because it appears no similar operation would be created there." National Archives officials are relatively independent of political pressure, the staffer said. Justice, on the other hand, is "hostile to efforts to improve FOIA responsiveness, in part because it represents agencies sued by FOIA requesters," Think Progress writes.

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In all the festivities surrounding the New Year’s holiday, you might have missed President Bush signing the Open Government Act of 2007 on Monday without comment, the first reform of the Freedom of Information Act in a decade. David Ardia, director of the Citizen Media Law Project at Harvard Law School’s Berkman Center for Internet and Society and the Center for Citizen Media, hails the act for expanding the definition of who is representative of the news media. "This change would significantly benefit bloggers and non-traditional journalists by making them eligible for reduced processing and duplication fees that are available (to members of the media)."

The Associated Press reports that the new law "is aimed at reversing an order by former Attorney General John Ashcroft in the wake of the Sept. 11 attacks, in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security."

(Updated: The Associated Press reported on the new law; the First Amendment Center did not issue a statement as previously reported.)

Ardia also lists other reforms brought by the legislation:

• Broadening the scope of information that can be requested by including government contracting information held by private contractors;
• Assigning public tracking numbers to all requests;
• Denying agencies that exceed the 20-day deadline for responses the right to charge requesters for search or copying costs;
• Making it easier to collect attorneys’ fees for those who must sue to force compliance with their FOIA requests; and
• Establishing an office at the National Archives to accept citizen complaints, issue opinions on requests, and foster best practices within the government.

Steven Aftergood, writing at Secrecy News, voices a tempered view of the reform, saying that the act "does not touch the root of government secrecy, namely the decision to withhold information." The reform does not impact "any of the more than one hundred statutory exemptions from disclosure under the FOIA," he writes, "and it does not address the proper scope or application of the classification system." That’s a task for another day, he adds.

David Corn at MoJo Blog agrees, saying that the reform will likely only mean more timely denials of information. "Well, at least I won’t have to wait so long to be turned down," he writes.

At least the new law doesn’t appear to make things worse. That, in and of itself, is an improvement.

Update: Patrice McDermott, Director of OpenTheGovernment.org writes that the Associated Press reports that the new law "is aimed at reversing an order by former Attorney General John Ashcroft in the wake of the Sept. 11 attacks, in which he instructed agencies to lean against releasing information when there was uncertainty about how doing so would affect national security."

The law does NOT do this. Steve noted this in his blog and I had noted it to the FOI-L(istserv). The House version passed last March had this provision, but no Senate version ever did.

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Our friends at CREW are providing a fantastic resource for reporters, bloggers, citizens and government document junkies–GovernmentDocs.org: An online compendium of scanned images of documents acquired from government agencies through the Freedom of Information Act by (right now) a handful of nonprofit groups (including the correspondence logs that Anu’s been acquiring for our RealTime project). Documents that once would have been filed away can have second and third lives online, where they can be read, annotated, tagged, and otherwise scrutinized by anyone who signs up to create an account.

CREW also uses OCR technology to make the images word-searchable; the results aren’t always perfect but they do make the documents easier to navigate.

CREW’s release is online here, and, full disclosure: Sunlight Foundation supported the creation of the site.

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…but lots of times just not available through FOIA. The Sunshine in Government Initiative, a coalition of media groups that promotes accessibility, accountability and openness in government policies, has launched the FOIA Files, a repository of descriptions of news and investigative articles that relied on the Freedom of Information Act to pry loose information from the government. It’s searchable by agency, date, congressional district and state, and by whether or not the news organization that did the story had to go to court to get the records it sought.

I couldn’t help noticing a fair number of entries like this one:

The Macon (Ga.) Telegraph, in a report about the public’s frequent unawareness of the presence of dangerous chemicals in their neighborhoods, found that the Environmental Protection Agency refused to provide even redacted copies of risk management plan summaries for five counties in and around Macon. The newspaper requested the summaries under FOIA and the EPA acknowledged they are public, but refused to release them because they contain information about worst-case scenarios.

Following FOIA seems to be regarded as optional by a lot of government agencies.

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President Lyndon Johnson signed the landmark Freedom of Information Act law on July 4, 1966. In doing so he declared: "A democracy works best when the people have all the information that the security of the nation will permit." Indeed, when members of the public have diligently pursued information under the FOIA, they have identified government waste and mismanagement and exposed significant controversies about government programs.

Now the 41st birthday of the Freedom of Information Act (FOIA) is upon us and a coalition of groups is urging the Congress to pass a bill — currently (and ironically) locked behind a closed door — that would reform the FOIA and make it work better for the public. The OPEN Government Act (S. 849) would enact common-sense reforms to the FOIA and put in place incentives for federal agencies to process FOIA requests from the public in a timely manner. The bill is supported by a large and diverse coalition.

Let's make this 4th of July "Information Independence Day."

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Sometimes senators admit that they are holding a particular piece of legislation. In this case, Sen. Jon Kyl (R-AZ) admitted that he is the one blocking passage of the OPEN Government Act, a FOIA improving bill cosponsored by Sens. Pat Leahy (D-VT) and John Cornyn (R-TX). Kyl states that the bill would require the Justice Department to release sensitive data related to law enforcement and that the "uncharacteristically strong" opposition to the bill from Justice is reason enough to block the bill. According to the AP, the Justice Department is concerned about "a section that would eliminate exemptions allowing the government to deny access to privileged or law-enforcement sensitive information." Sen. Leahy assailed the hold that Kyl is using to block the bill, "This is a good government bill that Democrats and Republicans alike can and should work together to enact. It should be passed without further delay." The same goes for the Senate Campaign Disparity Act (S. 223). If Kyl can fess up to holding an open government bill then Mitch McConnell can cough up the names of the anonymous senators blocking S. 223 from passing.

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We’ve been following the progress of a couple of bills making their way through Congress. H.R. 1309 puts a little more teeth in our Freedom of Information Act–the main lever that the press and the public has for prying documents out of the executive branch (and see here for useful FOIA tips maintained by Investigative Reporters & Editors), while S. 223 would, for the first time, require campaign committees of Senate candidates to file their contribution and expenditure information electronically with the Federal Election Commission rather than sending in stacks of paper (both House and Presidential candidates file electronically).

There are other measures that are worth noting as well (with votes on all scheduled in the House for today and tomorrow). For me, the most interesting is H.R. 1254, which would force presidential library foundations to make their donor lists public. It is unseemly enough to have a foundation seeking millions of dollars from donors–corporate and individual, U.S. and foreign–to build what is essentially a monument to a former president; that they can do so anonymously, while that president is still in office, is a recipe for corruption (The name Marc Rich immediatley springs to mind for some reason…)

H.R. 1255 establishes procedures for releasing presidential records, and overturning the 2001 executive order from President George W. Bush that sharply restricted (and in many cases out-and-out eliminated) public access to these government documents. I’d actually like to see a government records act that goes a little further–former government officials generally have not only much better but also lengthy periods of exclusive access to their records. In 1992, Steve Weinberg wrote a book (along with my old shop, the Center for Public Integrity, called For Their Eyes Only: How Presidential Appointees Treat Public Documents As Personal Property that documented the ways in which presidential appointees “take classified documents with them after leaving public service, use the materials to write lucrative memoirs, and then seal off these documents for decades from historians, journalists, and other researchers.” It’s not just presidential papers to which the public needs better access.

H.R. 985 expands whistleblower protections–protecting agency employees who report waste, fraud, abuse, illegalities and other malfeasance to members of Congress or Inspectors General from administration retribution.

Finally, H.R. 1362 addresses shortcomings in the government’s relationships with private contractors. Rep. Henry Waxman, who chairs the House Oversight Committee, has a summary of the bill’s provisions here. Just a quick observation on this–I’d like to have seen a provision that would try to determine why, for so many contracts for which there is open bidding, only one bidder shows up (which seems to me to be almost as bad as no-bid contracts, and as much of a problem). In 2005, the last year for which we have complete data, ten percent of contracts–worth nearly $40 billion–were awarded under that scenario, according to our friends at FedSpending.org.

All these bills would add to our ability to know what government is up to and keep it accountable–not a bad couple of day’s work for the House if they pass them…

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This story, about the problems that the Coast Guard and its contractor, Integrated Coast Guard Systems (a joint venture of Northrop Grumman and Lockheed Martin), are having with their Deepwater program, got me thinking–and about something other than this report on the program by the Inspector General of the Dept. of Homeland Security.

Under federal law (it’s title 31 U.S.C. section 1352, for those of you keeping score at home), contractors and subcontractors, for-profits and non-profits, universities and state and local governments that lobby the federal government for contracts, grants, cooperative guarantees, loans, loan guarantees or loan insurance have to file a form, called SF-LLL, when they lobby the federal government for that contract, grant, cooperative guarantee, and so on. The instructions that come with the form say, “The filing of a form is required for each payment or agreement to make payment to any lobbying entity for influencing or attempting to influence an officer or employee of any agency, a Member of Congress,an officer or employee of Congress, or an employee of a Member of Congress in connection with a covered Federal action.”

That’s a mouthful, but what it means, I believe, is that a company that’s lobbying, say, the Senate Appropriations Subcommittee on Homeland Security for an earmark would have to file an SF-LLL along with its contract proposal to the Department of Homeland Security, and then again every time it makes a payment to its lobbying firm. That’s pretty useful information to have, because the presence or absence of an SF-LLL allows us to distinguish between which contracts, grants and so on are awarded solely through regular procurement procedures, and which recipients of federal funds hired lobbyists seeking House or Senate members, or their staffers, or administration officials, to intervene on their behalf.

It would be helpful to have a nice big pile of SF-LLLs as a reference when looking at federal contracting and grantmaking data. Even more helpful, of course, would be to have that information integrated into the data on sites like FedSpending.org and the Open Secrets lobbying database. However, I suspect that we’re a long way away from having that kind of transparency.

Form SF-LLL says, in a box on the lower left hand side of the page, that “This information is open to public inspection.” I’m curious to see how hard it is to inspect an SF-LLL. Below is a copy of my first serious effort to do so–a request made under the Freedom of Information Act for any SF-LLLs filed in connection with the first Deepwater contract, HSCG23-02-C-2DW001, which Integrated Coast Guard Systems won in 2002. On page seven of this 2002 lobbying disclosure form (that is, the kind filed with the House and Senate), Northrop Grumman notes it lobbied on Deepwater, as does Lockheed Martin on page 19 of this 2002 lobbying disclosure. It does not seem unreasonable to assume that their lobbying would have involved the actual awarding of the Deepwater contract referred to above, but of course I could be mistaken (and hopefully, we’ll find out the answer soon from the Coast Guard).

Over the next couple of days, I’m going to send out some more FOIAs asking for SF-LLLs for different contracts issued by various agencies. Sometimes, like in the Deepwater example here, I’ll focus on a single contract. In others, I’ll see if I can find a broader approach. I’m also going to make some calls around town to lobbyists, to government agencies, to congressional staffs and others to try to trace the history of form SF-LLL (which is actually quite fascnating–and quite relevant to what we’re trying to accomplish here at Sunlight. More on that in a bit).

Here’s the text of the FOIA, sent to the Coast Guard electronically just a few minutes ago:

Donald Taylor
FOIA Officer
U.S. Coast Guard
Commandant (CG-611)
2100 2nd St., S.W.
Washington, DC 20593-0001

Dear Mr. Taylor:

Pursuant to the Freedom of Information Act, 5 U.S.C. § 552, I requesting copies of the following documents:

Any and all forms SF-LLL (as required by 31 U.S.C. § 1352) filed by or on behalf of Northrop Grumman Corp. or Lockheed Martin Corp. in connection with the contract award number HSCG23-02-C-2DW001 made to Integrated Coast Guard Systems, Duns number 0364758330000.

I respectfully request a waiver of all costs associated with fulfilling this submission pursuant to 5 U.S.C. § 552(a)(4)(A)(iii). Disclosure of the requested records will further the “public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest” of the requester, the Sunlight Foundation.

Founded in 2006, the Sunlight Foundation is a 501(c)3, nonpartisan organization dedicated to furthering transparency in government. Sunlight disseminates information about its activities to thousands of concerned citizens, policymakers, and the media via its Web site http://www.sunlightfoundation.com.

Please feel free to call or email me if this request requires further clarification. Thank you for your prompt attention to this matter.

Sincerely,

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