Adding insult to injury, the worst oil spill in U.S. history has been plagued by a lack of transparency that is hindering the response to the disaster and may impact responses to future spills. Reports of restrictions on media access to the spill site, the delayed disclosure of information on dispersants, and frustrations with BP’s overall lack of transparency have confounded efforts to hold the company and government agencies accountable.

Both the administration’s and the oil industry’s response to the oil spill in the Gulf of Mexico have drawn criticism over the slow pace of release of information to the public. As congressional investigations and continued public outcry bring attention to the lack of openness, the federal response seems to be slowly moving toward greater transparency.

Confusion about Size of Spill

In the first weeks of the catastrophe, conflicting, inaccurate, or missing information regarding the amount of oil leaking into the Gulf of Mexico created confusion. Despite initial, unofficial estimates of up to 64,000 to 110,000 barrels of oil per day, the U.S. government and BP initially estimated up to 1,000 barrels of oil per day were leaking from the crippled Deepwater Horizon rig. Later, relying on estimates from BP, federal officials raised the estimate to 5,000 barrels per day. Weeks later, the interagency Flow Rate Technical Group, after analyzing data and reviewing undersea video footage of the leak, estimated a range of 11,000 to 25,000 barrels per day. On June 10, another revised estimate placed the range at 25,000 to 30,000 barrels of oil a day.

The task of quantifying the amount of oil gushing out of the broken pipe was made more difficult by BP’s delay in providing scientists a high-definition video of the leak for computer analysis, as well as by the company’s resistance to permit a direct measurement of the flow rate. The National Oceanic and Atmospheric Administration (NOAA), the scientific agency that produced the government’s 5,000 barrel-per-day estimate, refused to provide more detailed information on the mathematics behind its figure.

Getting a clear, accurate understanding of the flow rate of the oil leaking from the destroyed wellhead is important for numerous reasons. Understanding the ecological impacts of the spill depends on a clear picture of the size of the leak. Planning for the prevention of and response to future deep-sea oil spills will be also informed by clear understanding of the characteristics of the Deepwater Horizon spill. In addition to learning about the root causes of the accident, the public and government regulators will need to know the consequences in order to plan for the next catastrophe.

Moreover, the amount of fines faced by BP will likely depend on the amount of oil released into the Gulf. In an interview with The New York Times, Rep. Edward Markey (D-MA), whose House Subcommittee on Energy and the Environment is investigating the spill, noted that under the Oil Pollution Act of 1990, companies face fines of up to $1,000 per barrel spilled, or up to $3,000 per barrel in the case of gross negligence. The need for accurate figures will have a major impact on potential fines. “I think they were hoping they could fix it before they would be forced to allow the world to measure it,” Markey said.

Markey’s subcommittee also compelled BP to release underwater video footage of the leak. In response to the company’s lack of transparency during the spill response, Markey stated, “We cannot trust BP. It’s clear they have been hiding the actual consequences of this spill.”

Media Access Restricted

According to numerous reports, BP and its contractors have turned journalists and photographers away from impacted sites, and local law enforcement, the Coast Guard, and other government officials have also restricted media access to important areas affected by the spill. In addition, BP initially directed its cleanup workers to not speak with the media. The company has since rescinded that order.

Many reporters trying to cover the spill complain that access, even when granted, is strictly controlled by BP or BP contractors, frequently with the complicity of local or federal government officials. Markey commented on BP’s role in restricting media access, “I think they’ve been trying to limit access. It is a company that was not used to transparency. It was not used to having public scrutiny of what it did.”

On June 6, Coast Guard Admiral Thad Allen, the National Incident Commander,announced that he had issued orders granting the media “uninhibited access” to cleanup efforts, except if the access is “a security or safety problem.” According to a BP spokesman, “From the beginning, we have tried to provide information, data and access to government officials, the news media and the public. But we always are striving to enhance and improve our lines of communication and our responsiveness.”

Secret Chemicals

More than 1,262,000 gallons of dispersants have been used on the oil spill to date. Numerous concerns have been raised about the long-term consequences of using such unprecedented quantities of dispersants and the unique conditions of their application under thousands of feet of water. Scientists and environmentalists had been calling for the disclosure of the ingredients to allow the public to analyze the possible human and ecological health impacts and what worker safety measures are needed. The chemical ingredients in the dispersants were kept secret until last week, when the U.S. Environmental Protection Agency (EPA) quietly disclosed the formulas on the agency’s website.

The chemical components had been kept secret because the manufacturer had claimed the information was confidential business information, and therefore, it qualified for special protections by the EPA. Open government advocates had asserted that because of the clear emergency situation and the potential health and safety consequences of keeping the information secret, the EPA had the legal authority to disclose the chemical identities.

Reflecting the concerns about the toxicity of the dispersants, EPA ordered BP to analyze alternative dispersants that were less toxic than the products the company had been using. BP, with help from the Coast Guard, conducted toxicity tests of alternative dispersants, but the results were neither released nor shared with the EPA. The company refused to select an alternative, claiming its current product was the most appropriate for the situation. EPA is now conducting its own toxicity tests of dispersants.

The data gaps related to the use of dispersants is emblematic of a chemicals policy that allows chemicals into commerce before the public has an adequate understanding of the chemical’s hazard. One researcher who has studied dispersants used on oil spillslamented, “There’s such limited funding out there to do this research. Would I would have liked to screen six dispersants? Yes, but there wasn’t money.”

Federal Transparency Efforts

Despite the numerous concerns raised about the quantity, quality, and access to information about the spill, there have been several government efforts to provide the public with data. The EPA created its own website providing water and air quality monitoring data, along with information on the agency’s activities in the Gulf. The interagency command center, known as the Unified Command, provides extensiveonline updates on cleanup activities, as well as live video feeds from underwater remotely operated vehicles and telephone numbers for incident reports from the public.

After several weeks of inadequate transparency from BP, EPA Administrator Lisa Jackson and Department of Homeland Security Secretary Janet Napolitano called on BP to release more data about the spill and increase the company’s transparency.

On June 14, NOAA launched a new website that provides information about the BP oil spill via an interactive map. Described as a “a one-stop shop for detailed near-real-time information about the response to the Deepwater Horizon BP oil spill,” the interactive map includes data from DHS, the Coast Guard, the U.S. Fish and Wildlife Service, EPA, NASA, the U.S. Geological Survey, and the Gulf states.

The Obama administration is also calling for a high level of transparency in the awarding and disbursement of public claims against BP. Adm. Allen of the Coast Guard recently wrote to BP chief executive Tony Hayward demanding greater disclosure of compensation payments. Allen wrote, “We need complete, ongoing transparency into BP’s claims process including detailed information on how claims are being evaluated, how payment amounts are being calculated, and how quickly claims are being processed.”

Copyright 2010 OMB Watch

Lawmakers from both parties are pursuing efforts that would require agencies to post public information online by default, moves that would preserve for posterity elements of the Obama administration’s open government agenda.

Rep. Steve Israel, D-N.Y., introduced on Tuesday the 2010 Public Online Information Act (H.R.4858), which would require all executive branch records to be searchable on the Internet inside a governmentwide electronic card catalog. Agencies would have to post all future public records to the Web within three years.

Later this month, some members of the House Oversight and Government Reform Committee plan to announce the formation of abipartisan congressional transparency caucus that will pursue legislation to make government information more easily accessible online. Proposals are expected to include a stipulation that downloadable content that agencies post online should be located on a permanent Web site and a requirement that government data be released in formats any application can read and share with other software.

Many of these proposals exist in federal guidance issued by the Obama administration, including a Freedom of Information memo that requires agencies to follow a presumption of disclosure, a revised executive order on classifying national security information and an open government directive. But such policies are easy to scale back or even remove when a new president takes office. Codifying government data policies would allow these initiatives to survive a change in administration.

Government transparency professionals acknowledge there are similarities between the executive and legislative branch efforts, but add the congressional initiatives are more forward-looking.

“POIA is prospective,” said Ellen Miller, executive director of the Sunlight Foundation, an open government group, who joined Israel in announcing the bill on Tuesday. “The open government directive is more of a retrofitting.”

The directive set deadlines for specific steps that agencies must take to improve transparency, interaction with the public and collaboration with the private sector. The first assignment required federal managers to post online three data sets that had never been publicly available on the Internet.

But the directive does not overlook the challenge of changing how information is disclosed. It encourages agencies “to the extent practical” to proactively use modern technology to distribute information, rather than only releasing it in response to a Freedom of Information Act request.

Converting an untested policy such as the directive into law may be premature, said Andrew Rasiej, founder of the Personal Democracy Forum, an online community that analyzes the intersection between politics and the Internet. The directive was issued in December 2009.

“Now that it’s been out, in order to prove compliance, the agencies have to show the public is interacting,” said Rasiej, who suggested the idea for POIA to Israel. “It may be open source software that should be used” or some other technology solution to foster participation. He compared the purpose of the directive to a blueprint. Agencies need to spend time conceiving a workable architecture for open government before anyone makes it law.

Gary Bass, executive director of OMB Watch, a government watchdog group, said his organization could not support the POIA bill in its present form because the scope of content exempted from being posted online is unclear. One provision allows the federal chief information officer or the chief information officer at a regulatory agency to grant “narrow, case-by-case exceptions” if an agency can demonstrate “a clear and convincing reason for the record to not be made available on the Internet,” and the harm resulting from disclosure outweighs the public’s interest in obtaining the record online.

“If it’s a discretionary call by the agencies, you’re going to have a patchwork quilt” of exemptions, he said.

Bass also questioned why the bill does not state that in addition to making all public records searchable, agencies should ensure the content of each record is searchable. The open government directive specifies that agencies publish information in open formats so the data can be retrieved, downloaded, indexed and searched with commonly used Web tools.

In general, Bass gave POIA a grade of A-plus and said OMB Watch supports the principles behind it. But he wants Congress to hold a hearing to clarify the language. “We think that through the [legislative] process it can be fixed quite easily,” he said. “We can work out these other little disagreements as the bill moves through.”

Israel’s office said the bill was drafted to allow for certain common-sense exceptions such as protecting trade secrets or national security. The bill does not call for material inside the records to be searchable because “technology changes quickly,” Israel spokeswoman Lindsay Hamilton said. She noted there is a line in the bill that requires the use of “current information technology capabilities” for formatting and distributing records.

Sean Moulton, director of federal information policy at OMB Watch, said Congress’ positive efforts to mandate government openness are not really intended to lock in Obama administration improvements. “Of course, having both the administration and Congress talking about transparency at the same time presents some unique opportunities to make major progress on the issue,” he added.

White House officials said the president will continue to pursue policies that open the government to the American people, and they welcome congressional support. But the administration expects the president’s directive will have a long-term impact.

“The open government directive is essential to changing the culture of government and embracing the tenets of transparency and accountability,” said Tom Gavin, a spokesman at the Office of Management and Budget. “We believe that it will result in lasting change across the government to the benefit of the American people. It will result in greater transparency, participation and collaboration across the federal agencies.”

Copyright 2010 NextGov

The report, prepared by the Commerce Inspector General, who sits on the Recovery Board, surveyed 29 federal agencies receiving Recovery Act funding, representing hundreds of Recovery Act programs. Surprisingly, the survey found that 41 percent of the programs in large agencies (defined in this report as the Departments of Defense, Health and Human Services, and the Interior) reported inadequate staffing levels. On top of that, another 45 percent reported that while they were adequately staffed, doing so required taking staff away from non-Recovery Act duties. The other agencies reported similar numbers, with only 24 percent of programs in these agencies saying they have adequate staffing levels with minimal impact on non-Recovery Act work. And this is despite agencies detailing some 22,000 staffers to work on Recovery Act grants and contracts.

The consequence of this understaffing is fairly predictable. Crucial work will not get done, and overall work quality will suffer. The report says that because of the overload “the awarding of contracts and grants is being delayed-as is other work; employees are working overtime; and the oversight and monitoring of awards-especially non?Recovery Act contracts and grants-are expected to decline, as many agencies attempt to implement Recovery Act requirements while carrying out their ongoing programs and operations.” The report also warns that the impact on work quality may be exacerbated by a dearth of qualified contracting personnel in the agencies.

To be clear, the understaffing problem is not due to the reporting requirements of the Recovery Act which we here at OMB Watch are so fond of. The agencies are under enormous political pressure to spend the $275 billion of Recovery Act discretionary funds as fast as possible, thanks to the Obama Administration’s dedication to funding “shovel-ready” projects. But spending money quickly without creating absurd amounts of waste, fraud, and abuse requires large staffs. And thanks to the all the attention that these programs are getting, both from Congress and from the public, agency heads are far more likely to pour resources into Recovery Act projects than other programs, regardless of whether such allocations make sense policy-wise. As the report notes, “to ensure timely completion of Recovery Act work, agencies are prioritizing their Recovery Act workload, hiring additional personnel, and shifting and/or reassigning staff.”

That said, I’m sure the transparency requirements of the Act are at least contributing to the strain on the agencies. For instance, agencies are tasked with helping their grant, loan, and contract recipients understand how to report back on the use of their funds, a somewhat confusing process for those who have never reported before. Responsibilities such as these, while they are incredibly important from a transparency perspective, do take up staff time, since they involve communicating with thousands of recipients scattered across all fifty states. I’m disappointed the Recovery Board’s report does not specifically address this issue.

Unfortunately, at the end of an otherwise great report, the Board whiffs on providing solid recommendations for how to fix the staffing problem. The report simply finishes by saying “we recommend that agencies continue to closely monitor their staffing of both Recovery Act and non?[Recovery Act] work, and make adjustments as necessary to ensure that all contracts and grants are properly awarded and monitored.” Well, if they won’t say it, I will: the agencies need to begin channeling more resources to hire and train contract officers, and Congress needs to increase agency funding by the requisite amount so that the program funding levels are not adversely affected. End of story. You cannot simply dump billions of dollars on already-stretched agencies and expect them to deal with the new funding quickly and easily.

It’s reports like this that make discretionary caps such as the ones proposed in President Obama’s budget patently absurd, since they severely limit the government’s ability to react to new situations.

Complying with requirements of the Open Government Directive (OGD), federal agencies launched transparency pages on their websites Feb. 6. The content and functionality of the pages varied from non-compliant to barely compliant to above and beyond expectations. OMB Watch conducted an assessment of the webpages between Feb. 15 and 22, based on factors that make for sound accountability and transparency.

The OGD required agencies to create open government webpages as the first step toward Open Government Plans, which are required by April 7. The transparency webpages are intended to serve “as the gateway for agency activities related to the [Directive].” A standard for these webpages was set at www.[agency name].gov/open.

OMB Watch’s review sought to be more expansive then the administration’s grading through the White House’s recently launched Open Government Dashboard. The dashboard assesses the state of progress on initial deliverables required by the OGD. The dashboard does not grade the quality of the products produced by the agencies; instead, it is simply a check-off on whether the agency has complied. Thus, for the requirement to establish the open government webpage, the dashboard simply indicates whether the agency has a webpage and does not provide any information about the quality or usefulness of the web. The administration did issue some content recommendations for agency open government webpages, but it remained limited in specifics and has not evaluated the agencies’ performance on content. OMB Watch’s assessment is the first to review how well the agencies did in creating their pages.

Methodology

Since the administration has offered agencies limited guidance on what components should be included in an open government page, OMB Watch developed criteria that cover basic information that should be provided in a central space on an agency’s openness page. We have included all requirements of the OGD, such as the designation of a Senior Accountable Official for the quality of spending data. Additionally, OMB Watch included some items that were not specifically identified by the administration but that fall within a reasonable and logical application of the OGD. Therefore, OMB Watch identified several basic disclosure functions that would make agency open government pages more useful to the public.

In assessing the information available to the public, OMB Watch utilized a simple method of locating specified information on the site. First, the information must be accessible from the agency.gov/open page and not require the use of a search engine to find. Second, the information must be located in an intuitive manner, requiring no more than three mouse clicks to access. If those requirements were not met, then the website was deemed to not have the information and received no points. An agency could receive half points for the criteria if it attempted to comply. For example, if the agency did not list the Senior Accountable Official for the quality of spending data on the website, but did list another contact person, it would receive half points. The maximum score an agency could receive was 57.5.

Leaders

While agency scores varied greatly in the review, some agencies made clear efforts to go beyond the required minimum stated in the OGD. The top five open government webpages were the National Aeronautics and Space Administration (NASA), the General Services Administration (GSA), the State Department, the Department of Education , and the U.S. Agency for International Development (see Table 1 below). These agencies score highest because they attempted to integrate the new open government webpages into each agency’s existing disclosure policies and activities.

Table 1. Top Five Open Government Webpages – Scores

Agency Score
National Aeronautics and Space Administration 40.5
General Services Administration 37
State Department 36.5
Department of Education 35.5
U.S. Agency for International Development 35

For example, all five lead agencies had easy links from new open government pages to their already existing agency-wide contact systems that allow users to find any employee and get his or her contact information. Some agencies, such as the U.S. Environmental Protection Agency, had such an employee locator feature but did not make it easy to find from the open government page. Linking to pre-existing reports, such as Inspector General reports, budget justifications and reports to Congress, were other areas that many of the higher-scoring agencies seemed to gain ground over their counterparts.

Some agencies led in specific areas, garnering points that almost no other agencies received. For instance, NASA is the only agency that has communication and disclosure policies easily found from its open government page. Similarly, USAID was the only agency that not only included a summary of where agency funds were spent but provided information on top vendors, as well as spending by program area. Additionally, the Nuclear Regulatory Commission, though low-scoring in the review overall, was the only agency to not only link to Freedom of Information Act (FOIA) reports and plans but also list the FOIA requests received in the last month. Further, some, such as the State Department and the Department of Health and Human Services, even went so far as to list information on their records management and declassification programs, as called for in the OGD.

Laggards

While agencies did generally meet the minimum requirements of the OGD for the new webpages, several scored particularly low in this review. The bottom five agencies, excluding those that failed to put up any open government page, were the Office of Management and Budget (OMB)/White House, the Department of Agriculture, FDIC, the Department of Health and Human Services, and the Department of Justice (see Table 2 below). These agencies scored poorly for the exact opposite reason the leaders succeeded – failure to integrate the new open government page into existing agency information and activities – or not having adequate information on their pages. For instance, none of the bottom agencies’ have Inspector General reports, a link to Recovery Act data, reports to Congress, budget justifications, or performance results that can be easily found from the new webpages. Similarly, several laggard agencies, including FDIC, Department of Health and Human Services, OMB/White House, as well as others, failed to link to public participation tools for collecting input and open government ideas as mandated by the OGD.

Table 2. Bottom Five Open Government Webpages – Scores

Agency Score
Office of Management and Budget/White House 6
Department of Agriculture 15
FDIC 16.5
Department of Health and Human Services 18.5
Department of Justice 18.5

In some cases, however, agencies lost points and fell behind others because the information provided was outdated. The Defense Department’s backlog report for its FOIA responsibilities is from the 2008 fiscal year, not from Fiscal Year 2009. Further, the Department of Veterans Affairs presented both outdated performance and financial reports. This could represent a significant problem if the administration is not considering the quality and timeliness of information disclosed when determining if the agencies are meeting OGD requirements.

The OMB and White House webpages are somewhat unique. Even though OMB is charged with overseeing much of the OGD, it does not apparently view itself as covered by the requirements of the directive. For example, OMB has no directory of its employees. Its openness webpage is sparse, at best. The White House itself has an openness webpage, but it applies to what all agencies are doing and is a blog reporting on progress on the OGD.

Missing in Action

Some federal agencies are lacking openness pages entirely. These include the National Transportation Safety Board, the Federal Election Commission, and the Consumer Product Safety Commission. These offices all collect data, the public release of which could benefit citizens.

There were some areas of information that were omitted by almost all agencies throughout the government. This included communications policies that govern how information can be disclosed by employees, senior officials’ calendars that would offer a window into the agency’s priorities, lists of FOIA requests received that indicate demand for information, and visitor logs that would indicate with whom agencies are meeting. Many agencies also fail to provide the public with basic organization information such as organizational structure or employee and leadership contact information.

Several items reviewed are ones that are not required by the OGD but that each agency can easily do to enhance the usefulness of its openness portal to the public. Oftentimes, information that is important to the public was buried in other sections of the an agency’s website, requiring tedious searching to locate. Instead, the openness pages should serve as easy-to-use portals to information of public interest.

Ultimately, these issues reinforce the paramount importance of public participation in the OGD implementation process. The agencies utilize a collaborative online tool to solicit public input in their progress. Through this tool, the public is able to push the administrative agencies to further their efforts to be more open.

Copyright 2010 OMB Watch

OMB Watch
Press Release
December 3, 2009

WASHINGTON, D.C. – OMB Watch released a beta version of a new database on FedSpending.org that gives the public improved access to and searchability of Recovery Act recipient report data. The database allows users to search more than 160,000 reports from recipients of almost $159 billion in Recovery Act contracts, grants, and loans awarded between Feb. 17 and Sept. 30.

OMB Watch obtained the recipient reports through Recovery.gov, a website required by the Recovery Act and maintained by the Recovery Accountability and Transparency Board. FedSpending.org’s Recovery Act data tab gives users flexibility to search, either individually or in aggregate, for prime recipients, sub-recipients, ZIP codes, congressional districts, federal awarding agencies, award amounts, and much more through a variety of means, including an Advanced Search function. Additionally, any search results can be downloaded from the site.

“We created the Recovery Act data tab to expand the options people have for searching, sorting, and analyzing Recovery Act data,” said Gary D. Bass, Executive Director of OMB Watch. “The mapping features on Recovery.gov are great, but there are lots of other ways to interact with this data. We hope our website serves as a springboard for further changes at Recovery.gov.”

Another key feature of the website is that it shows the extent to which Recovery Act funds are passed from prime recipients to sub-recipients and vendors. This is done by creating a new field called “net amount retained,” which is the amount of money a prime recipient does not pass on to a sub-recipient or vendor. This also allows summary level data to be displayed without double counting Recovery Act funds.

The Recovery Act database on FedSpending.org is being released as a beta version and may contain technical glitches despite OMB Watch’s best efforts, and the organization welcomes feedback from the public. The database was created in just one month at a relatively small cost.

The database is available at http://www.fedspending.org/rcv.

OMB Watch
Press Release
October 29, 2009

WASHINGTON, D.C. — OMB Watch today posted updated information about the risks of serious public harm posed by thousands of chemical facilities nationwide. The risk management plans of approximately 14,000 facilities that handle more than the threshold amounts of 140 dangerous chemicals are publicly available through the website of the Right-to-Know Network (RTK NET), at www.rtknet.org/db/rmp.