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.

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Sunshine Week: In Celebration of Open Government

The following post appears courtesy of Melanie Ann Pustay, Director of the Office of Information Policy at the Department of Justice and Lisa Ellman, Chief Counselor for the Open Government Partnership and Senior Advisor to the Chief Technology Officer at the White House. It originally appeared on The White House blog.

As President Barack Obama has stated, “Openness will strengthen our democracy, and promote efficiency and effectiveness in Government.” This week, we celebrate Sunshine Week — an appropriate time to discuss the importance of open government and freedom of information, and to take stock of how far we have come, and think about what more can be done.

sunshineIn the spirit of Sunshine Week, the White House will highlight one initiative a day which demonstrates the Obama Administration’s continued commitment to open and accessible government. Today, we will focus on progress made improving the administration of the FOIA. As Justice Louis Brandeis wrote, “sunlight is said to be the best of disinfectants.” In our democracy, FOIA, which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open government.

As President Obama declared in his landmark Memorandum on the Freedom of Information Act (FOIA) issued on his first full day in Office: “A democracy requires accountability, and accountability requires transparency.” The FOIA – which provides the public with a statutory right to request and receive information from their government – is a key way in which government transparency is realized.

Over the past four years agencies have been working hard to improve their administration of the FOIA under guidance issued by Attorney General Holder. That guidance directed agencies to apply a presumption of openness in responding to requests and to make it a priority to respond promptly. Both the President and Attorney General stressed that it is also vital for agencies to make information available proactively, without the need to make a request, so that what is “known and done by their Government” is readily available to all. These directives are taking hold across the agencies and real improvements are being made.

In Fiscal Year 2012, the government as a whole:

•Processed more FOIA requests: Agencies processed 665,924 total requests. This is a 5.5 percent increase over the total number of requests processed last fiscal year.
•Decreased the FOIA request backlog: The efforts of agencies to increase the numbers of requests processed has paid off as the government was able to reduce its backlog of pending requests by 14 percent from last year. The current backlog marks a 45 percent reduction from the backlog that existed four years ago in 2008.
•Maintained a release rate above 92 percent for the fourth straight year: Of the 464,985 requests processed by agencies for disclosure, the government released records either in full or in part in response to 93.4 percent of these requests. For half of those requests all the information was released, with nothing withheld. This marks the fourth year in a row where the number of responses to FOIA requests providing a release of information either in full or in part exceeded 92 percent of the requests processed for disclosure.
•Improved average processing times: Agencies improved the average processing times for all categories of requests.
•Disclosed more information proactively: Agencies met public demand for information by posting a wide range of material on their websites, allowing the public to easily find information of interest without the need to make a FOIA request.
All of the detailed data on agency FOIA compliance from Fiscal Year 2012 is compiled and displayed graphically on the Department of Justice’s government FOIA website FOIA.gov, providing a clear picture of government FOIA administration and progress during the last fiscal year.

These are more than just statistics. They represent the efforts of agencies across the government to answer the call to improve transparency. They demonstrate that agencies are responding to requests more quickly and releasing more information when they do. Agencies are reducing backlogs of pending requests and helping eliminate the need to even make requests by proactively providing information online. The public is the beneficiary of this progress. While there is more work to be done, this past year demonstrates that agencies are answering the President’s and Attorney General’s call for greater transparency.