Gary D. Bass, Ph.D.
Executive Director of the Bauman Foundation Affiliated Professor at Georgetown University's McCourt School of Public Policy Field: Federal budgetary, program management, regulatory, and information policy issues Co-founder of OMB Watch (now called the Center for Effective Government) Email Interview April 4, 2014 |
- Do you think the Freedom of Information Act functions as it should theoretically?
Yes, FOIA is the country’s bedrock law on openness. - Are there any changes that you would like to see made to the Freedom of Information Act? How would you like FOIA to evolve in the future to ensure a healthy balance between citizens’ rights and government responsibilities?
The Freedom of Information Act is inadequate for today’s 24 hour-7 day a week Internet world. Under FOIA, the burden is on the public to request information (and wait for a response); there are far too many loopholes to allow agencies to withhold information; and the law is designed for the paper world functioning in an electronic era. These policies need radical overhaul.
The government’s responsibility under FOIA is to respond to requests for information, not to initiate the publication or dissemination of information. This needs to be reversed so that government initiates the disclosure of information. FOIA will still be needed, just not as the vehicle of first recourse for obtaining government information as it is today. Instead, FOIA should become the safety net, along with whistleblower protections, to ensure a transparent government. In this context, FOIA needs some improvements that Congress and the president should tackle. Some examples include:
- Reduce backlogs of FOIA requests;
- Limit discretionary exemptions;
- Align the Department of Justice’s policies and procedures, including litigation strategy, with the president’s FOIA policy on openness;
- Make clear that FOIA’s guiding principle is the presumption of openness and end the ping pong policymaking from administration to administration of moving from a policy of “where possible disclose” to “where possible withhold” information; and
- Strengthen the ombudsman role at the Office of Government Information Service and provide additional authority to identify and resolve FOIA disputes between requesters and agencies
To move to this proactive disclosure model, several steps can be taken now. The president can put in place a new open government policy that creates an affirmative obligation for government agencies to proactively disclose information. While some government information must remain secret, the burden to justify withholding information should be a government responsibility, should be set at a high standard, and should be fully disclosed and explained in terms all can understand. Any time the government proceeds to collect information, it should presume that the information will be disclosed in a timely and searchable manner – and planning for disclosure and archiving of information should begin with the initial plans for collecting the information.
To put substance behind the rhetoric of this policy, the president could establish standards for classes of information that all federal agencies must disclose. This standard would be a floor that agencies would be encouraged to go beyond. At a minimum it should include:
- General information about the agency that helps the public better understand how to contact key agency personnel and types of activities top level employees are engaged in, such as organizational charts, list of employees and how to contact them, logs of visitors meeting with top level officials, and calendars of top level officials;
- Policies guiding agency actions that will help the public better understand how decision-making and operations occur within an agency;
- Unclassified communications and reports prepared by an agency, such as communications to Congress and reports of an agency Inspector General; and
- Other records and data that will help the public hold government agencies accountable, such as logs of requests for records filed under FOIA and information about who is participating in federal advisory committees and what is being done by such committees. - Why do you think the Freedom of Information Act is significant?
If information is the currency of democracy, as Thomas Jefferson supposedly said, then government transparency is the people’s Fort Knox, providing the means for a more open government and access to information that builds a robust democracy. When government operates in a more open manner, it rekindles a spirit of “We, the people” as envisioned in the preamble to the U.S. Constitution. In a period when trust in government is at an all-time low, transparency may be a tool to rebuild that trust.
Transparency serves many audiences and many purposes: it fosters greater accountability; it helps with service delivery by knowing where best to deploy services and promoting improved performance; it empowers those with the least clout in society; and it helps build an informed electorate thereby strengthening our democracy. Government transparency may be defined as the public’s right to know about actions of its government and power elites as well as access to tools that foster greater participation in democratic actions. Transparency is one element – albeit an essential one – of an open government.
Since FOIA is an essential element of this country’s transparency framework, it is central to this vision of an open, transparent and accountable government. - How effective have FOI laws been in the past and today?
FOIA implementation has been criticized both in the past and in the present. Most analyses of the data are quite critical of the way FOIA operates. For example, memos from former Attorney General John Ashcroft & White House Chief of Staff Andrew Card in 2001 and 2002, respectively, encouraged agencies to use Exemptions 2 (Internal Agency Rules), 4 (Proprietary Information, Trade Secrets), and 5 (Interagency Memoranda) in handling "sensitive" information. The impact of these memos telling agencies to use these “discretionary” exemptions to withhold information where possible was stark. In comparing the four year before the memos to the fours after the memos, there is a jump of 239% in use of Exemption 2, 46% in Exemption 4, and 72% in Exemption 5. On the good news side, the use of these exemptions has dropped during the Obama administration.
Backlogs have also been a problem. In the four year span of 1998 to 2002, backlogs were 14.4% of requests processed. It began to jump in the 2003 to 2007 period to 27.1% with 2007 being the second highest (33%) since data collection began in 1998. The good news is that the number has dropped. In 2013, the backlog has dropped to 13.6%.
A number of organizations have published recent reports showing weaknesses in FOIA administration during the Obama administration. The Associated Press has noted that in 2013, the use of exemptions to bar release of requested files went up 22% over the previous year, and that agencies denied or redacted large portions of files in 36% of the 704,394 requests submitted.
The numbers may not always reflect the improvements or weaknesses in FOIA. For example, under the Obama administration there has been less of a struggle to get some information than during the Bush years. On the other hand, that has not extended to national security information. There has been a substantial increase during the Obama administration in citing national security concerns as reason for withholding information – 8,496 times in 2013 which is more than double the rate in Obama's first year in office. - How is FOIA significant compared to other legislature for openness and transparency?
As stated above, FOIA is the backbone for the country’s policies on openness. At the same time there are many other laws and actions that have had a powerful impact on shaping the notion of an open government.
In the aftermath of the Watergate scandal and the resignation of President Nixon, Congress stepped up efforts to make government more open. FOIA was one of several laws passed. Other laws included the Federal Advisory Committee Act and the Sunshine in Government Act. These laws established the modern framework we have on open meetings and records.
As described below, the creation of the Toxics Release Inventory (TRI) in the late 1980s was a powerful example of making data available to the public through what would become the Internet. Since then there have been numerous laws imposing various right to know requirements, ranging from public companies filing financial information to information about how safe is your drinking water. Another important moment was when then-Senator Barack Obama, a liberal, and Sen. Tom Coburn, a conservative, teamed up to get a law passed in 2007 that required government spending to be available in a searchable format on the Internet. That led to the creation of USAspending.gov and today’s push for greater transparency. In fact, when President Obama was promoting a stimulus package to kick start the economy in 2009, he said at his first news conference on Feb. 9, 2009, that “…every American will be able to go online and see where and how we're spending every dime.” He lived up to his pledge with the creation of Recovery.gov. The disclosure model was so powerful that the Government Accountability Office, a congressional watchdog agency, could not find any fraud in the massive amounts of money that was spent in a short period of time. GAO concluded that the transparency efforts were central to this efficiency. - Do citizens have the right to information?
Yes. As described above, the public’s right to know is an essential component of the democratic framework of our society. Beyond the affirmative disclosure requirements mentioned above, there are other top level policy reforms needed to make sure the public gets information that helps improve our democracy. For example, strengthening disclosure of information about special interest influences and ethics of those working in government; administrative governance, including rulemakings and paperwork requirements; and federal spending, including tax expenditures, should be tackled.
In light of the Supreme Court’s action in the Citizens United and McCutcheon decisions dealing with campaign contributions, Congress must add more timely disclosure requirements. Since the Citizens United decision we have seen a rapid growth in independent expenditures where people of enormous wealth are giving money to groups independent of campaigns to influence the elections. Some of this money is “dark money,” passing through certain types of nonprofit organizations that allow the contributor to be anonymous. And the April decision in McCutcheon, which eliminates overall limits of contributing more than $123,000 to candidates and party committees per election cycle, opens the door to even more money being injected into campaigns. While much of the new money resulting from McCutcheon will be disclosed, it will not be done on a timely basis unless Congress acts.
The president also needs to make sure that information withheld from public disclosure warrants secrecy. This includes ensuring the classification process is sharply reduced in scale, duration, and complexity. The problem is that too many items are unnecessarily categorized as a secret.
Finally, a public right to know agenda also places a premium on privacy protections. Hence, privacy rights are part of a broader transparency plan. - What inspired you to found the Center for Effective Government?
The creation of OMB Watch (now called Center for Effective Government) in 1983 was a team effort and was a confluence of several factors. First, I had finished my doctorate in 1980, moved to Washington, DC, and got a job with the U.S. Council for the International Year of Disabled Persons which was established to observe the United Nations international year. My background was focused on helping people in need – those with disabilities, low-income families, etc. At that job, I met the father of the Head Start program, Jule Sugarman, who wrote a paper explaining the impact on disability programs of budget proposals from the newly elected president, Ronald Reagan.
After reading the Sugarman paper, he and I left the U.S. Council and teamed up to travel around the country to help state and community based organizations understand the impact of federal budget cuts on human needs programs, expanding on his paper. Nonprofits around the country were clamoring for more information about federal budget actions, particularly distilled information so that they could understand the impacts and know what they should do.
Third, and even more critical to forming OMB Watch, was a proposal by the Heritage Foundation to “defund the left” by restricting nonprofit federal grantees from engaging in policy advocacy even if done with private funds. President Reagan’s Office of Management and Budget (OMB) attempted to implement this proposal but met with strong resistance from a broad-based coalition of nonprofits. OMB proposed a technical change to an arcane accounting rule (called Circular A-122). In took numerous experts to analyze the proposal and explain its impact to nonprofits around the country. A number of people in that coalition, including myself, wondered what other arcane or technical policies from OMB also had significant impact on the nonprofit sector – and several of us suggested the formation of OMB Watch to keep an eye on the budget and rules that could impact the nonprofit sector.
I was 29 years old at the time and really didn’t fully understand the challenges in starting an organization. But I was driven by values embedded in a belief in social justice and that government should play a helpful role in protecting the public from social, economic, and environmental harms. So driven by a belief in social change and advocacy, we started OMB Watch.
Shortly after forming OMB Watch, we broadened the scope of the organization from tracking the federal budget and issues like Circular A-122 to monitoring how OMB was using its (then) new regulatory powers to undo environmental, workplace, and public health protections. We also added a component to promote the “public’s right to know.” By 1987, with passage of the first law – commonly called the Toxics Right to Know – to mandate disclosure through “computer telecommunications” of toxic chemicals released to the air, water and land by companies, OMB Watch got involved in shaping how EPA implemented this seminal law. Dissatisfied with EPA’s plans, OMB Watch obtained the data from EPA and put it online through RTK NET (www.rtknet.org) so that the public could find out what toxic chemicals and how much of them were being released into their communities.
Promoting the public’s right to know remained a central part of OMB Watch’s mission. We believed transparency was a tool to empower people and to hold government (and powerful corporations) accountable. In other words, transparency was never our end goal; instead transparency was the means by which we pursued other goals.
So the very early years were focused on watchdogging OMB. But by 1987, we were already looking beyond OMB. As the years rolled along, our focus was more about citizen participation and government accountability – and since OMB plays a central role in the underlying policies of government we continued to monitor the agency, but we did much more. When I left the organization in 2011, the new executive director, Katherine McFate, decided after 30 years that the organization needed a new name that better reflected what it does – hence, Center for Effective Government.