Preserving Access to Government Scientific Data under the Trump Administration

MFSThe inaugural March for Science was organized to coincide with Earth Day on April 22, 2017.  Tens of thousands of people rallied in Washington, DC and over 600 other locations across the globe. The organizers were motivated by what they saw as the Trump administration’s hostility to science on a variety of issues. These ranged from Trump’s own statements denying climate change, to the anti-science posture of officials appointed to key federal agencies such as the Environmental Protection Agency (EPA) and Energy Department, to proposed funding cutbacks at the National Institutes of Health.

From the time Trump was elected president, scientists and their allies have had serious concerns about how this would affect the federal government’s policies on science. One of their deepest fears is losing access to the vast amount of scientific data maintained by the federal government and made available to the public. The Obama presidency was committed to open data.  Under the Obama administration, “increasing access to scientific data and research findings generated by Federal agencies or resulting from Federally funded research” was viewed as a policy priority.  This policy has been reversed since Trump took office.

For example, Victoria Herrmann, an Arctic researcher, reported that the U.S. National Strategy for the Arctic, Implementation Plan for the Strategy, and reports about progress, disappeared from government websites the day after Trump’s inauguration. She stated that the months that followed have been “transformed into a slow, incessant march of deleting datasets, webpages and policies about the Arctic.” Other reports indicate that while outright deletion remains relatively uncommon, the new administration is making data harder to find, and will soon be cutting funding to the point where collecting data becomes difficult for federal agencies.

In response to these concerns, scientists, programmers, librarians, academics, and others have gathered in locations across North America at “data rescue” events organized by groups such as Data Refuge and the Environmental Data and Governance Initiative (EDGI).  EDGIThese gatherings are essentially hackathons during which participants endeavor to download, save, and archive scientific data maintained by the government.  Event organizers face continuing technical and logistical challenges, including: developing broadly-applicable tools that can be used to extract data from a variety of government websites, confirming the integrity of the data, securing sufficient long-term storage, documenting the chain of custody, and developing procedures to facilitate future public access. 

Amidst the ongoing data rescue efforts, it was widely reported that in the event of a government shutdown, on April 28, 2017 the EPA would take down their Open Data portal that provides data on climate change, pollution, and public health. The EPA subsequently responded that the portal would not be updated, but would not go dark in the event of a shutdown. This episode nonetheless raised an important question: can federal government agencies like the EPA simply delete data or deny public access to the data they maintain?

On this issue, federal agencies are constrained by statutory and administrative regulations. The Paperwork Reduction Act states that government agencies must “provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products.” 44 U.S.C. § 3506(d)(3).  The Federal Records Act (FRA) further limits how federal agencies can dispose of data. The FRA broadly defines records to include “all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, Nara-Logofunctions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them.”  44 U.S.C. § 3301(a)(1)(A). The statute requires permanent records, i.e. those of continuing value, to be preserved and deposited in the National Archives and Records Administration (NARA). NARA has provided administrative guidance on how scientific, environmental, and technical data can be appraised and preserved. Notably, on December 22, 2016, NARA sent all federal agencies a memorandum on preservation of federal records that stated: “In many cases, websites contain databases or datasets. We remind agencies that such data, or the systems in which they reside, must be scheduled as Federal records.”

It is still an open question as to whether these laws have any teeth. Patrice McDermott, the author of Who Needs to Know? The State of Public Access to Federal Government Information (2007), recently stated that while the Federal Records Act makes it an offense to knowingly and arbitrarily destroy government records, “No one — NO ONE, period! – has ever been prosecuted for doing it.”  Moreover, in Kissinger v. Reporters Committee, 445 U.S. 136 (1980), the U.S. Supreme Court held that the Federal Records Act was created to benefit the federal government and its agencies, ruling that the statute contains neither an express nor an implied private right of action.  

The battle over science policy and scientific data also rages on in the political arena. Rep. Betty McCollum (D-MN) has introduced H.R. 1232: “Save America’s Science Act” to require Federal agencies to maintain and preserve their data assets — even as other proposed bills make their way through Congress which purport to promote transparency in scientific research but would gut the efforts of the EPA if passed, according to critics.  

Data rescue events continue to be organized across the country, and it remains to be seen how effective they will be in scaling up the extraction and archiving of data.  These efforts have, at the very least, brought visibility to the importance of ensuring public access to the treasure trove of scientific data maintained by the federal government.

National Library Week & Federal Depository Libraries

Library Week

April 9 – 15, 2017 is National Library Week, which is an annual observance sponsored by the American Library Association, and libraries throughout the country to celebrate libraries and librarians, and to promote the use of libraries.  One of the strong foundations of American libraries is a program run under the auspices of the United States Government Publishing Office called the Federal Depository Library Program, of which Brooklyn Law School Library is a member.

Depository Library Program

The Depository Library Act of 1962 created the present-day Federal Depository Library Program, increasing to two the number of depository libraries permitted in each congressional district, adding libraries from independent federal agencies, and authorizing the establishment of regional depositories. There are currently over 1200 depository libraries.  Brooklyn Law School Library became a depository library in 1974. In 1976 all law school libraries were eligible to become federal depository libraries. The BLS Library currently selects about twelve percent of the documents available through the depository program.  We select items in print, in microfiche, and electronically.

The mission of the Federal Depository Library Program  (FDLP) is to provide free, easily accessible and permanent access to federal government information.  Though FDLP libraries receive publications free of charge, they are responsible for processing the government documents they receive and making them available to members of the general public.  FDLP libraries must provide bibliographic control of the documents they receive, normally through their library catalog, and either integrate print copies of the documents into their library classification system or the Superintendent of Documents Classification System.  FDLP libraries are surveyed biennially to ensure that they are in compliance with the depository program and there are stringent procedures for libraries to remove depository items from their collections.

While all FDLP libraries may choose the classes of materials they want to receive, there is a basic collection that are all required to have.  This core collection is made up of mostly legal materials that all law students should be familiar with.  Some of the titles that we have in the BLS Library through the depository program are:

  • Code of Federal Regulations
  • Congressional Directory
  • Congressional Record (daily edition)
  • Constitution of the United States of America: Analysis and Interpretation
  • Federal Register
  • Public Laws of the United States
  • Public Papers of the Presidents of the United States
  • United States Code
  • United States Government Manual
  • United States Reports
  • United States Statutes at Large
  • Budget of the United States Government
  • Statistical Abstract of the United States

Celebrate Libraries next week and Depository Libraries every week by taking advantage of the BLS Library depository collection.

Congressional Research Service Reports

CRS

The Library of Congress is the world’s largest library with millions of books, photographs, recordings and other documents including newspapers, manuscripts, and maps.  The Library is home to both the U.S. Copyright Office and the Congressional Research Service, which is the research arm of the United States Congress.  The Congressional Research Service works directly and primarily for the members of Congress, their committees and staff.

The Congressional Research Service (CRS) answers hundreds of thousands of questions annually; it anticipates Congressional inquiries and provides timely, objective, interdisciplinary information in response.  The CRS attempts to address emerging issues and developing problems in anticipation of Congressional needs.

The CRS employs approximately 600 people, including lawyers, librarians, social and physical scientists, etc. and is divided into six interdisciplinary research divisions and then into subject specialties.

Responses to Congressional requests may be made in the form of memoranda, customized reports and briefings, presentations, seminars, etc.  However, the most prominent work product of the CRS are the Congressional Research Service Reports.  These are encyclopedic reports on topics with potential legislative action.  Hundreds of these reports are issued annually and thousands have been issued since the Congressional Research Service was founded in 1914, when it was originally called the Legislative Reference Service.

Congressional Research Reports are available electronically to members of Congress, Congressional committees, and the CRS sister agencies:  the Congressional Budget Office and the Government Accountability Office, but there is no official access.

Brooklyn Law School Library subscribes to a monthly listing of CRS Reports from Penny Hill Press. Each month’s listing, arranged by subject, is available at the Library reference desk.  A brief description of each report is given and the Library can obtain the full report for a faculty member or student.

Recently a national grassroots group called DemandProgress launched a website containing new Congressional Research Service Reports:  http://everycrsreport.com

There are 8,400 reports on the site with more added each week. The reports are received directly from Congress and there is no charge for access.  You may browse the site by topic or search by keyword.  Topics of some recent CRS Reports include:

The First Day of a New Congress:  A Guide to Proceedings on the Senate Floor

Legal Services Corporation: Background and Funding

Terrorist Material Support: An Overview of 18 U.S.C. 2339A and 2339B

Women in Congress: 1917-2016.

 

 

 

 

 

Dozen New Executive Orders and Memoranda

The first dozen executive actions and memoranda issued by the new president are (starting with the most recent):

Border wall. In this order, President Trump states it is the policy of the United States to immediately construct a wall on the southern border. The order directs agencies to begin planning and identify funding for the project, including sending requests to Congress. It also directs agencies to construct or contract out for more detention facilities at or near the Mexican border. This order also directs the hiring of an additional 5,000 border patrol agents, subject to funding. And it requires that all agencies identify any U.S. aid funds that have gone to Mexico in the past five years. (We are still awaiting an online link and will post when it appears.)

Deportations and sanctuary cities. This is also a longer order with several major pieces (as above, no public link yet). The president has directed agencies to step up deportation of those in the country illegally. First, he prioritizes seven groups of people for deportation. It is anyone: convicted of a crime, charged with a crime, who has committed a chargeable offense, has misrepresented themselves to the government, has abused a welfare program, who is under deportation order and who may “in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” Second, the order also directs the hiring of 10,000 more Immigration and Customs Enforcement agents, though it states that is subject to funding. Third, it states the U.S. policy is now to allow local law enforcement officers to act as immigration officers whenever possible. Fourth, it orders the Attorney General and Secretary of Homeland Security to block federal grants from so-called “sanctuary” cities which do not enforce some immigration laws.

Review manufacturing regulations. In this memorandum, the president ordered the Commerce Secretary to begin a 60-day review of regulations for American manufacturers, with the aim of finding ways to speed up permitting and all federal processes for them.

American steel in pipelines. President Trump directed the Commerce Secretary to come up with a plan to ensure that all pipelines built or repaired in the United States be constructed with American-made materials “to the maximum extent possible.”

Speeding up environmental reviews for all priority infrastructure. President Trump ordered that agencies and the chairman of the White House Council on Environmental Quality work together to set up faster deadlines and environmental approval for “high priority” infrastructure projects. It gives significant power and responsibility to the White House Council on Environmental Quality chairman, who will decide within 30 days if a proposed project is “high priority.” (The president has not yet nominated a new CEQ chairman.)

Speeding approval of Dakota Access and Keystone Oil Pipelines. President Trump ordered that permits for the Dakota Access Pipeline be approved in an expedited manner, “including easements or rights-of-way to cross Federal areas.” (Army denial of an easement was a previous victory for pipeline opponents.) In his Keystone memorandum, Mr. Trump invited TransCanada to resubmit its application for a pipeline permit, and he directed the State Department to issue a final decision on that application within 60 days.

Federal hiring freeze. The president has told agencies they cannot fill any vacant positions nor open new ones, with two exceptions: military personnel and critical public safety positions.

TPP. This memorandum withdraws the United States from all Trans-Pacific Partnership negotiations and from signing the trade deal.

Abortion. President Trump has ordered that federal dollars cannot go to organizations that provide abortion services.

Regulation freeze. The president has frozen all regulations now in process (but not approved) until they are approved by him or an agency after he took office. This means any regulation signed by former President Barack Obama in his final weeks in office — including some that deal with energy efficiency standards — are on hold until they’re reviewed by Trump’s administration.

ACA rollback. Mr. Trump has allowed all agency heads to waive requirements of the Affordable Care Act to the “maximum extent permitted by law.”

President Grants Clemency to 231 Inmates, a One-Day Record

from Whitehouse.gov blog

Today, President Obama granted clemency to 231 deserving individuals — the most individual acts of clemency granted in a single day by any president in this nation’s history. With today’s 153 commutations, the President has now commuted the sentences of 1,176 individuals, including 395 life sentences. The President also granted pardons to 78 individuals, bringing his total number of pardons to 148. Today’s acts of clemency — and the mercy the President has shown his 1,324 clemency recipients — exemplify his belief that America is a nation of second chances.

chart_121916_commutations

The 231 individuals granted clemency today have all demonstrated that they are ready to make use — or have already made use — of a second chance. While each clemency recipient’s story is unique, the common thread of rehabilitation underlies all of them. For the pardon recipient, it is the story of an individual who has led a productive and law-abiding post-conviction life, including by contributing to the community in a meaningful way. For the commutation recipient, it is the story of an individual who has made the most of his or her time in prison, by participating in educational courses, vocational training, and drug treatment. These are the stories that demonstrate the successes that can be achieved — by both individuals and society — in a nation of second chances.

New GAO Transition App Allows Users to See Changes Needed Across Federal Government

from GAOgao

To help make the upcoming presidential and congressional transitions as informed as possible, the U.S. Government Accountability Office (GAO) has launched a new mobile app that provides users easy access to the watchdog agency’s priority recommendations for improving government operations.

GAO has organized its work to help President-elect Donald Trump and the next Congress tackle critical challenges facing the nation, fix agency-specific problems, and scrutinize government areas with the potential for large savings,” said Gene Dodaro, Comptroller General of the United States and head of the GAO. “With our extensive experience analyzing government programs and agencies, GAO is well positioned to help bring policymakers up to speed on a wide range of pressing issues.”

Dodaro also pointed out that GAO realizes both new Presidential and Congressional personnel will have to move quickly from the campaign trail to governing. “Consequently, we’ve tried to make sure the app as directly as possible lays out quick lists of the major changes needed and allows users to navigate right to GAO’s reports for all the details.”

The app is available free of charge in the App Store® or Google Play

New Law Creates Commission on Native Children

native_american_childrenLast week President Obama signed the Alyce Spotted Bear and Walter Soboleff Commission on Native Children Act  into law.  The Commission created by this act, is tasked with the important work of undertaking a comprehensive study of Federal, State, local, and tribal programs that serve Native children, and making recommendations on how those programs could be improved.

This Commission will be housed in an office in the Department of Justice and consist of three individuals appointed by the President and eight individuals appointed by congressional leaders.

Over the past 8 years, my Administration has been committed to working closely with tribes to strengthen our nation-to-nation relationships and to forge a brighter future for all our children. During my own visits to Indian Country, I have been inspired by the talent and enthusiasm of young people who want nothing more than to make a positive difference in their communities. From the Indian Child Welfare Act to working to return control of Indian education to tribal nations, I am proud of the progress we have made over the past 8 years. I applaud the Congress, and in particular Senator Heitkamp, for the efforts that made this new law possible.

–  Barack Obama