Agricultural producers in the United States receive billions of dollars in federal subsidies, crop insurance, conservation payments, and other grants. Defying fundamental principles of transparency and openness in a democracy, the U.S. Department of Agriculture (USDA) is authorized to keep secret much of the basic information that farmers provide to qualify for this public funding. Congress granted this unprecedented loophole in the nation’s sunshine laws by inserting section 1619 into the 2002 Farm Bill and later amending it in the 2008 Farm Bill. This section provides an exemption to the Freedom of Information Act (FOIA) that covers the information farmers give USDA about their properties. Farmers submit their business names and locations, geographic coordinates, types of crop produced and animals raised, and farming practices (such as irrigation practices and fertilizer or pesticide use) and are assured secrecy: federal, state, and local governments cannot generally access the information, much less anyone in the private sector.
Because this basic information is kept secret, watchdog groups cannot determine whether federal funds are warranted or whether farmers are using it correctly. Agencies enforcing health, safety, and environmental laws are denied data that would make their routine oversight of the industry’s compliance efficient and effective. The result is that the taxpaying public pays repeatedly to support agricultural production: once when the original grant or subsidy is paid (and possibly misused), again to support the efforts of other federal agencies to re-create the data that USDA already has, and again when enforcement efforts fail and agricultural pollution contaminates the soil, water, and air.
Today CPR releases a new briefing paper, Going Dark Down on the Farm: How Legalized Secrecy Gives Agribusiness a Federally Funded Free Ride, identifying the problem of agricultural secrecy and its repercussions for transparency, public health, and the environment. CPR President Rena Steinzor and I contend in the paper that shielding USDA programs from independent evaluation is a policy that simply is not justifiable because it costs the taxpayer much more money than it should. In an era when budgets are tight, the economy is troubled, and the environment is in jeopardy, the public has a right to know how public funding is being spent and whether that investment is protecting public health and the environment as intended.
Unfortunately, the language from Section 1619 has been retained in the Senate-passed version of the 2012 Farm Bill, as well as the version passed by the House Agriculture Committee. The Senate version expands information-sharing to a state agency, political subdivision, or local government agency that “is charged with implementing an agriculture or conservation program under State law.” That’s a small bit of progress, but not what’s needed: Congress should repeal Section 1619 in entirety.Full text
EPA announced Wednesday that staff from the Office of Chemical Safety and Pollution Prevention are making good on a promise to give the public increased access to health and safety studies about the toxic chemicals that pervade our lives. I applaud EPA for their work. Until Congress reforms TSCA to free EPA’s hand in regulating toxic chemicals, we have to rely too much on an imperfect alternative system, where public interest groups use publicly available data to inform the public about risks and campaign for chemical limits at the state level (see, e.g., BPA). . Broad access to the health and safety studies that EPA has just released, along with the TSCA Inventory and Chemical Access Data Tool, ensures that public interest groups and consumer advocates will have plenty of evidence to back their campaigns.
EPA’s data release is part of an ongoing effort to reassess whether certain information, once claimed to be confidential business information by the company submitting it to the agency, still deserves the protections that go along with the CBI designation. Under various sections of TSCA, chemical companies must submit health and safety studies about their chemicals to EPA. For instance, under § 8(e), companies must submit any study "which reasonably supports the conclusion that [a] substance or mixture presents a substantial risk of injury to health or the environment." Skimming over EPA's list of recently released studies, it looks like many were 8(e) submissions.
The reason EPA is cleaning house, so to speak, is that, in many instances, companies would stamp data in the study or the company’s name or even the identity of the chemical as "CBI." So even though EPA dutifully put copies of 8(e) submissions on their website, the studies weren’t much use to outside researchers or advocates because they were missing key information. This week's release is a big step in the right direction.Full text
EPA today announced (pdf) that it will begin a general practice of reviewing – and likely rejecting – confidentiality claims regarding chemical identities and supporting data in health and safety studies submitted to the agency under TSCA. The news is long overdue, but very welcome.
One of Congress’s primary goals in drafting TSCA was to create regulatory mechanisms through which EPA would gather information about the human health and environmental effects of toxic chemicals. Recognizing the societal benefits of broad disclosure of that information, Congress created an exemption for “health and safety studies” from TSCA § 14’s general prohibition on EPA’s disclosure of information submitted to the agency and claimed to be trade secrets or confidential business information (CBI). Health and safety information, in other words, was too important to be hidden from the public.
But despite the plain language of the statute, EPA for years simply turned a blind eye when health and safety studies were submitted under the Act’s information disclosure requirements and stamped as CBI. In fact, EPA even developed a process through which companies could claim that elements of a health and safety study – including chemical identities and supporting data – pass as CBI.Full text
As the Obama Administration ought to know by now, open government isn't easy. There are a lot of constituent elements in the wall that separates the American people and their government. Getting open government right requires planning and dedication. Moreover, resource and legal constraints can thwart even the best-intentioned efforts by government agencies to operate in a more open fashion.
Earlier this month, the Obama administration announced a number of new developments related to its Open Government Initiative, suggesting that the Administration is taking seriously many of the important barriers to open government.
First, all of the Cabinet agencies released their open government plans, detailing steps they'll take to make “transparency, citizen participation, and collaboration part of the way they work.” The EPA's plan says it will make more of the data it uses available to the public. For example, the agency has committed to publishing a “Green Vehicle Guide,” a searchable database that brings together information on the emissions and fuel economy of all makes and models of cars that have been manufactured since 2001.
The plan also describes more abstract, but no less important measures that the agency intends to take, such as “creating and institutionalizing a culture of open government” among its personnel. For example, EPA is instituting policies that encourage the use of social media for increasing public participation and collaboration in agency decisionmaking. These kinds of culture changes may not reap immediate open government benefits, but they promise to sustain EPA’s commitment to increased open government efforts in the years to come.Full text
Ten years ago, after NHTSA received reports of numerous deaths and injuries linked to Firestone tires and Ford Explorers, Congress passed the TREAD Act, bolstering the authority of the National Highway Traffic Safety Administration (NHTSA) to identify possible defects in vehicles and tires by collecting information (“early warning data”) from auto and tire manufacturers. The law requires disclosure of data about incidents involving deaths or injuries, injury and property damage claims (including lawsuits), consumer complaints, warranty claims, field reports (problems reported from dealers, for example), and production data. Ten years later, the Toyota scandal is here, with lives lost. NHTSA is blamed for failing to connect the dots, and Toyota is criticized for a “culture of secrecy.”
What happened? How could a law designed to improve access to early warning signs of trouble apparently fail so spectacularly? The story is complicated and still emerging, but we will surely miss some important lessons from it if stereotypes -- faceless bureaucrats and secrecy-minded Japanese businessmen! -- become convenient whipping boys.
Lesson 1. An all-too-common occurrence in Washington has recurred: when Congress passes a law industry doesn’t like, industry turns to the agency in charge of implementing the law for relief – a particularly shrewd tactic during the Bush II years. In this case, in 2002, NHTSA dutifully issued its regulation requiring “Early Warning Reports” from manufacturers on a quarterly basis. One year later, however, at the behest of automakers, NHTSA began what would become a five-year effort to keep much of this information secret from the public, accepting industry claims that the information requested was “confidential business information” (or “CBI”). (For more about NHTSA’s CBI rule and its tortured history, see Public Citizen. For government secrecy issues generally, see CPR’s perspective.)Full text
When President Obama launched his open government initiative on his first full day on the job, few assumed that the ambitious endeavor it contemplated would be easy. After all, lack of transparency and even active efforts to conceal information had become almost an inextricable feature of the federal government’s internal operations and decision-making—especially during the George W. Bush Administration. A recent series of developments confirms just how challenging the effort to achieve a more open government will be; fortunately, some of these developments also suggest that the Administration has learned some lessons from the initiatives’ early difficulties and perhaps is now moving in the right direction.
Obama launched the good ship “open government,” via a memorandum issued on January 21, laying out a vision of open government that was predicated on three pillars: transparency; public participation; and collaboration. The memo directed the Chief Technology Officer to work with the Director of the Office and Management Budget and the Administrator of General Services to develop a series of recommendations for an “Open Government Directive” that would direct executive agencies (including independent agencies) to take specific actions that are calculated to integrate the three pillars of open government into the agencies’ daily operations and decision-making procedures. The memo gave the Chief Technology Officer 120 days—that is, until May 21st—to achieve this task.Full text
In 2007, the FDA came under criticism for failing to inform the public about studies it had had for two years which indicated that users of the diabetes drug Avandia faced up to a 42% greater chance of suffering a heart attack. More recently, it was revealed that Bush-era political appointees at the agency surreptitiously worked with chemical industry representatives to downplay evidence of the adverse health effects caused by bisphenol A (BPA), a chemical frequently used in making plastic toys and baby bottles. Thanks to scandals like these, the FDA has long been dogged by criticisms for the lack of transparency with which it conducts regulation.
The Obama Administration says it will be taking on the issue. The FDA announced Tuesday that it would be beginning a process to enhance “the transparency of the agency’s operations and decision-making process.”Full text
There are few areas where the difference between the Republican and Democratic parties is more stark than that of the Freedom of Information Act. The FOIA, of course, requires agencies to provide copies of their records to any person upon request unless the record fits within one of nine specific exemptions. Among the most important of these are the exemption for classified information, inter-agency or intra-agency communications containing advice or recommendations, information compiled for law enforcement purposes, and private commercial information. Nevertheless, the Supreme Court has made it clear that the FOIA is a disclosure statute; nothing in the FOIA requires an agency to withhold records even if they fall within an exemption, although it is possible that some other statute might. Full text
Center for Progressive Reform Member Scholar Sidney Shapiro blogs on President Obama's order reinvigorating the Freedom of Information Act. Full text
Center for Progressive Reform Member Scholar Sidney Shapiro blogs a proposed executive order for restoring transparency to government, touching on the Freedom of Information Act, the Federal Advisory Committee Act and OIRA's behavior in the regulatory process. The proposal is drawn from the Center for Progressive Reform's Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days. Full text