Yesterday, I attended the First Annual Freedom of Information Day Celebration at American University’s Washington College of Law (WCL) to kick off Sunshine Week (March 16-22), which celebrates government transparency and freedom of information.

Each year Sunshine Week coincides with the birthday (March 16) of James Madison, who famously wrote in 1822:

“A popular government without popular information or the means of acquiring it, is but a prologue to a farce, or a tragedy, or perhaps both. Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power which knowledge gives.”

Yesterday morning’s keynote speaker was Prof. Robert Vaughn of WCL, who is better known as the plaintiff in the 1973 D.C. Circuit case Vaughn v. Rosen. This seminal Freedom of Information Act (FOIA) case set forth the right of a FOIA plaintiff to ask the court to order the government agency defendant to provide a list of the documents that are responsive to the plaintiff’s FOIA request but that the government claims are exempt from disclosure, and to include the agency’s specific justification for withholding each document. This list is also known as a “Vaughn Index.”
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Sunshine week, celebrated nationwide, is dedicated to open government, with events surrounding Freedom of Information and government transparency. Sunshine Week 2008 this year includes some great talks happening in Washington, D.C. and around the country, all focused on the concept of government openness. Yesterday was the National Freedom of Information Day, held on James Madison’s birthday; Madison was a supporter of government openness.

I attended the First Amendment Center’s Freedom of Information Conference on Friday, where there were great panels talking about the Freedom of Information Act (FOIA) and how publicly useful information is often unavailable. One compelling example of this is information suppressed about public infrastructure, like dams and bridges. As one conference participant asked: “What, are you going to hide a dam?”

The FOIA is an important tool for government transparency, but a growing number of Americans see the government as incresasingly secretive, according to a Sunshine Week poll. On a hopeful note, though, almost 90% of respondents said that open government was an important consideration in their presidential and congressional candidates. Maybe the candidates will get the message and we can get to fixing FOIA.

I’m looking forward to the rest of the Sunshine Week events here in D.C., especially Sunlight Foundation’s event with Lawrence Lessig, and other events in D.C.

The Washington Post reported today that Rep. Henry Waxman (D-CA), Chairman of the House Oversight and Government Reform Committee, is investigating a 473 day gap in White House e-mail storage.

The White House response suggest that they just don’t have a good system in place to preserve e-mail

This should be of great concern considering the fact that the courts ruled 13 years ago that an electronic copy of e-mail needs to be preserved. The precedent here comes from ARMSTRONG v. EXECUTIVE OFFICE OF PRESIDENT , 1 F.3d 1274 (D.C. Circuit Court of Appeals 1993, which originally dated back to 1988 when Reagan was leaving office. Journalist Scott Armstrong and the National Security Archive sued to ensure that the actual electronic versions of federal records were being stored and not just paper print outs. The courts found that a lot of information was lost in the print out and that the President and the National Archive and Records Administration had an obligation under the Federal Records Act to store the electronic copies of e-mail records.

The massive gap in the Bush Administration’s record keeping seems to directly violate this finding.

Last week Wikileaks announced that it discovered that U.S. officials at Guantanamo Bay were secretly altering various websites to promote the detention center in the news and online generally.

Being a defender of the First Amendment, CDT has always supported the right of citizens to speak anonymously in our free and democratic society. We’ve noted the practical value of this right, which encourages the sharing of valuable ideas and information that might otherwise go unexpressed due to fear of reprisal. And we certainly support the government’s participation in online discussion sites – when that participation is acknowledged. But the U.S. military’s anonymous tinkering with online information for apparent public relations purposes raises some real concerns. This also raises some tough First Amendment questions, but without a doubt it’s a very serious issue of government transparency, or lack thereof.

A couple years back, it came to light that some federal agencies had produced fake “news” stories (Video News Releases) without notice to viewers that the federal government produced them. The Government Accountability Office found that this was a violation of the law. It also reviewed at least two instances in which ostensibly independent journalists were paid to promote Administration policies. The GAO found one journalist’s contract to be a violation of the law and the other not, still the revelations sparked enough of a public outcry to inspire President Bush to terminate the use of this outrageous tactic.

One now wonders whether President Bush would approve of Gitmo officials on his watch anonymously altering Wikipedia pages. According to Wikileaks, the officials are also “systematic[ally] posting unattributed ‘self praise’ comments on news organization web sites in response to negative press” and “boosting pro-Guantanamo stories on the internet news site Digg.” While the military’s motivation to do these things is obvious, the question is whether it or any sector of the government should be able to secretly push unattributed government propaganda for consumption in the United States.

Some law already exists on this issue. Appropriations acts since 1951 have routinely included the prohibition: “No part of any appropriation contained in this or any other Act shall be used for publicity or propaganda purposes within the United States not heretofore authorized by Congress.” This is what the GAO relied on in evaluating the Video News Releases and the public relations contracts with the journalists, and the GAO has interpreted this language as prohibiting “covert propaganda” – meaning PR communications not attributed to the government. But is this enough? Some members of Congress didn’t think so. In 2005, two similar bills were introduced: the “Federal Propaganda Prohibition Act” (H.R. 373) and the “Stop Government Propaganda Act” (S. 266). Both bills died in committee.

But perhaps Congress should revisit the question. To be sure, there are some very difficult legislative drafting challenges. We would not want to impose inappropriate free speech constraints on federal employees who are not acting in their official capacity. And it may be reasonable in some narrow circumstances to allow the government to post unattributed content on websites that are clearly aimed at overseas populations. But it seems crystal clear that our government should not be permitted to manipulate online discussion forums and information sources aimed at Americans, without disclosing the governmental source of the changes or new information.

When the White House issues a press release, or a government-created Public Service Announcement is broadcast on TV, the fact that the government is the source of the information is clear, and the public can take it for what it’s worth. But secretly altering Wikipedia pages or posing as regular citizens when commenting on online news stories is something entirely different. The public debate – the marketplace of ideas, which is key to a free and democratic society – is skewed when the government talks but fails to identify itself. The problem isn’t only that taxpayer money has been used to contract for the spin services of others (as in the fake “news” videos) – but that taxpayer money is now paying the salaries of government officials who are themselves acting as the spin doctors without identifying themselves as such. This is an egregious violation of the principle of government transparency. It may be time for Congress to look again at this issue.

The E-Government Act of 2002 has been an important law for implementing government moving online. CDT also supported it in 2002. This year, the act will be up for reauthorization in senate bill S. 2321. The bill is a straightforward reauthorization of the E-Government Act, while still offering significant improvements.

This reauthorization includes language that instructs OMB to develop best practices for Privacy Impact Assessments. These are reports completed on new systems that aggregate personal information, required by the original e-Government Act. While these were a great idea, agencies were not given enough guidance and the PIAs were implemented very unevenly. The reauthorization would instruct OMB to create best practices for PIAs, and help agencies conduct them effectively. Effective and thorough privacy assessments help the agency to make decisions that protect privacy, and help the public understand what agencies are doing.

Secondly, this bill will add more robust language to make sure that government information is accessible via commercial search engines. Government Web sites disseminate information and make resources available to the public, and search engines share this mission to help users find appropriate and useful resources. In some cases, it seems that government sites are simply unaware that they can make the information they control more accessible through these search engines. Web sites now see most of their traffic coming from search engines like Google, Yahoo, Live Search, and Ask- or even the USA.gov search engine. The E-Government Act reauthorization will make sure that even more of this information is easy to find through search engines.

Overall, CDT believes that the new language for the E-Government Act reauthorization will help improve the implementation of the act as we move forward.

CDT’s OpenCRS project collects and indexes Congressional Research Service (CRS) reports and makes them available to the public free of charge. Each week, PolicyBeta features a CRS report on an important topic. For more reports, or to help contribute new reports to the OpenCRS database, visit the Web site.

This week’s report identifies the critical factors that influence the state-level e-government programs, based on surveys completed by 38 state governments.

State E-Government Strategies: Identifying Best Practices and Applications
RL34104 - July 23, 2007

And since we missed last week, we thought we’d throw in this bonus:

Freedom of Information Act (FOIA) Amendments: 110th Congress
RL32780 - July 10, 2007

CDT’s OpenCRS project collects and indexes Congressional Research Service (CRS) reports and makes them available to the public free of charge. Each week, PolicyBeta features a CRS report on an important topic. For more reports, or to help contribute new reports to the OpenCRS database, visit the Web site.

This week’s report addresses the use of “National Security Letters,” an extremely powerful tool that law enforcement can use to onbtain criminal suspects’ personal and business records. CDT Policy Director Jim Dempsey testified before Congress on the use of NSLs in March.

National Security Letters in Foreign Intelligence Investigations: A Glimpse of the Legal Background and Recent Amendments
RS22406 - March 20, 2007

CDT’s OpenCRS project makes the Congressional Research Service’s taxpayer funded reports more readily available on the Web. As we have mentioned in the past, these reports are written for Congress and help them make legislative decisions. They are now being sold by commercial vendors regularly for $29.95 a piece.

OpenCRS has been getting a lot of new reports in the our core issue areas and we thought that this would be a good tie to start featuring timely reports that would be of interest to PolicyBeta’s readers

Our inaugural CRS Report of the Week is:

Information Security and Data Breach Notification Safeguards
RL34120 - July 31, 2007

CDT Executive Director, Leslie Harris, and I had the privilege to serve on The Open House Project — nonpartisan collaborative effort launched by the Sunlight Foundation to provide suggestions to House Speaker Nancy Pelosi (D-CA) on how to make the House of Representatives more open in the Web 2.0 age.

Today, the project issued a report offering 10 common sense suggestions to Pelosi:

• Legislation Database-publish legislative data in structured formats
• Preserving Congressional Information-protect congressional information through archiving and distribution
• Congressional Committees-recognize committees as a public resource by making committee information available online
• Congressional Research Service-share non-partisan research beyond Congress
• Member Web-Use Restrictions-permit members to take full advantage of internet resources
• Citizen Journalism Access-grant House access to non-traditional journalists
• The Office of the Clerk of the House-serve as a source for digital disclosure information
• The Congressional Record-maintain the veracity of a historical document
• Congressional Video-create open video access to House proceedings
• Coordinating Web Standards-commit to technology reform as an administrative priority

If you’re still not sure that you should read the whole report, watch this video promoting the project. You’ll be convinced:

[editors note: This post from CDT Deputy Director Ari Schwartz originally appeared on the Open House Project blog.]

American taxpayers spend over $100 million a year to fund the Congressional Research Service (CRS), which generates detailed reports relevant to current political events for lawmakers. But while the reports are non-classified, and play a critical role in our political process, neither Congress nor the CRS makes them freely available to the public.

To fill that inexplicable void, private entities have begun selling CRS reports, providing lobbyists inside access at a price, while ordinary citizens (whose tax dollars fund the reports in the first place) are left out in the cold.

I hope that Speaker Pelosi will rectify this inequity and provide pubic access to all public CRS reports via the Web.

I can’t say it any better than Senators John McCain (R-Ariz.) and Senator Patrick Leahy (D-Vt.) who have co-sponsored a bill that would finally make the reports available to the public.

Said McCain: “It is not fair for the American people to have to pay a third party for out-of-date products for which they have already footed the bill.”

Adds Leahy: “CRS performs invaluable research and produces first-rate reports on hundreds of topics. American taxpayers have every right to have direct access to these wonderful resources.”

Indeed, CRS reports provide non-biased, non-partisan analysis of the myriad subjects they cover. They are well researched and generally provide a useful introduction and more detailed facts that would be a perfect resource for the curious citizen. What’s more, the reports are a major tool for lawmakers considering new legislation, and as such are of tremendous value to advocates, researchers and academics.

Not surprisingly, the reports are also phenomenally popular with the public when they are made available.

In 2005, my organization, the Center for Democracy & Technology launched the now wildly popular OpenCRS Web site. We collect CRS reports from a number of sources including collections from groups — such as the Federation of American Scientists and the National Council for Science and the Environment — and from individual citizens who obtain the copies of the reports from their elected representatives and then submit them to OpenCRS.

OpenCRS contains 11,491 CRS reports and averages over 5,000 reports downloaded per day for a total of more than 3 million report downloads in less than two years. We built OpenCRS after becoming outraged that companies were charging up to $50 per report, which (in its own warped way) is another measure of their popularity.

The creators of OpenCRS would gladly welcome the posting of all reports from an official source. This would allow us to stop spending effort on gathering and posting reports and focus instead on adding functionality for the public, and maybe even for Congress. And what’s more, as happy as we are with the success of OpenCRS it will never be an adequate substitute for an official government site providing no-cost, real-time access to all of the CRS reports as they are published.

Critics of providing direct access to CRS reports suggest that it will change the way that Members of Congress must operate. In the words of Former Chairman of the House Administration Committee Bob Ney (R-OH), the biggest critic of posting CRS reports in the past:

“Let’s say that I’m working on an issue and I’m trying to look for some research that helps me to get my point across and, all of a sudden, the Congressional Research Service sends me over something and I read it and I say, ‘Oh, no, that’s not going to help.’ Let someone else do the research. Why give your opposition free research?”

The Toledo Blade responded to Ney’s concern very aptly in its 2003 editorial:

“We would answer that question by simply pointing out to Mr. Ney that he doesn’t own the information produced at taxpayer expense, the American public does. And anyone - everyone - has a right to see it.”

Making CRS reports directly available to the public would help provide transparency and accountability to the House’s daily business and would bring an end to a system that unfairly rewards those that have connections or the right resources to get special access to reports that are the rightful property of all taxpayers.