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 textAs 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 textTen 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 textWhen 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 textIn 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 textThere 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
Guest Blogger: Liz Borkowski