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Federal Agency Recommends Improvements in Government Transparency

| Jun 12, 2014 | Analysis

Countless outside watchdog groups suggest how government can improve, but one group does so from within the government. The Administrative Conference of the United States (ACUS), an independent federal agency celebrating its 50th anniversary of recommending procedural improvements to the federal government, met last week to adopt four new sets of recommendations aimed at improving the federal government.

White House with TulipsThe latest recommendations seek to increase government transparency by improving agency compliance with the Freedom of Information Act (FOIA) and the Government in the Sunshine Act. They also call for implementing best practices for improving clarity in rulemaking guidance documents and managing communications with members of the public in rulemaking.

One set of recommendations addresses a perceived decrease in effectiveness of FOIA, the landmark legislation empowering the public to access many government records. When agencies fail to cooperate and grant FOIA requests, expensive litigation too often ensues. ACUS therefore commissioned a report to identify alternative dispute resolution strategies that could reduce FOIA litigation and resolve FOIA disputes more cooperatively.

The recommendations ACUS adopted last week focus on the Office of Government Information Services’ (OGIS) role in FOIA dispute resolution as a “non-exclusive alternative to litigation.” OGIS is responsible for improving agency FOIA compliance and also serves as the federal FOIA ombudsman, helping individual requesters navigate agencies’ FOIA processes.

ACUS encourages OGIS to maintain its current practices, including its “Quick Hit” service, a cost effective way to provide information and filter out simpler FOIA requests. ACUS also urges federal agencies to increase their cooperation with FOIA requesters by working with OGIS and with their own FOIA Public Liaisons, the officials within each agency responsible for FOIA compliance and dispute resolution. The recommendations particularly highlight the value of calling the public’s attention to these resources.

Notably, ACUS calls on OGIS to consider using its authority to issue advisory opinions. Although Congress has granted OGIS this power by statute, OGIS has apparently never used it. ACUS believes that OGIS advisory opinions could clarify ambiguities over FOIA policy that presently contribute to disputes. However, ACUS’s recommendation cautions OGIS to distinguish clearly between advisory opinions issued as broad policy statements and those pertaining to individual disputes, so as to maintain OGIS’s position as an unbiased mediator.

ACUS also last week adopted recommendations that would attempt to close some of the gaps left by the Government in the Sunshine Act, which imposes certain disclosure requirements aimed at increasing government transparency at agencies headed by multi-member boards or commissions. A report that informed ACUS’s recommendations noted a highly prevalent use of “notational voting” (that is, the process of carrying out agency business via the exchange of written documents) and closed meetings to conduct large amounts of agency business – practices that allow agencies to avoid the Sunshine Act’s transparency requirements. ACUS grew concerned that these loopholes might threaten the effectiveness of the Act and decrease government openness.

ACUS’s recommendations urge agencies to take steps to close these loopholes and increase openness, such as by publicly announcing meetings and agendas in advance and using multimedia resources to notify the public. ACUS also advises agencies to publish the results of closed meetings and warns agencies of the possible risks of using e-mail exchanges to conduct business. The dearth of case law makes it unclear if e-mails could be deemed “virtual meetings” and thus subject to the Sunshine Act.

Another set of recommendations ACUS adopted last week deals with guidance documents issued by agencies during the rulemaking process, particularly focusing on preambles to final rules. Preambles — the statements issued with final rules that explain why they are needed and how to apply them — are a key source of guidance. The problem is that agencies often neglect to include preambles in their policies on guidance or in compilations of guidance documents, thereby increasing the reader’s burden of understanding and complying with the rule.

The ACUS report accompanying its recommendations on this issue identifies several problems with the lack of clear guidance. For example, compliance by covered entities may be reduced if they lack adequate notice of new agency guidance.

The recommendations ACUS adopted last week suggest several measures for agencies to ensure better clarity in preambles, such as organizing longer preambles with section-by-section analysis mimicking the organization of the substantive rule. ACUS also admonishes agencies to avoid using language in preambles that seems to create obligations not otherwise required by the actual rule. ACUS recommends that preambles be included in compilations of guidance documents and that any policies an agency may have on issuing guidance should also apply to preambles.

ACUS has encouraged agencies to collaborate with the offices responsible for publishing regulations online to link regulations clearly with relevant guidance, including preambles. Also, ACUS says agencies should work with the U.S. Small Business Administration to make Small Entity Compliance Guides more easily accessible online.

A final set of recommendations ACUS adopted last week focus on “ex parte” communications in informal rulemaking. Ex parte communications occur when interested parties and agency officials exchange information outside of the normal public comment period. These communications pose several key concerns: they introduce the potential for undue influence on rulemaking; they may prevent other interested parties from adequately responding to key information; and they may skew future interpretations of rules if communications are not adequately documented in the public record.

ACUS’s recommendations call for agencies to take different actions depending on when in the rulemaking process the ex parte communications occur, such as before a Notice of Proposed Rulemaking (NPRM) is issued, after an NPRM but during the public comment period, and after the comment period has closed. ACUS encourages each agency to create a policy on handling ex parte communications at these different stages of rulemaking.

In the first stage, ACUS recommends that agencies should not prohibit ex parte communications. Reaffirming a prior ACUS recommendation, ACUS takes the view that the threat of undue influence on rulemaking is minimal at this initial stage because a subsequent comment period will allow other interested parties to voice their concerns on the potential rule.

Once the comment period has closed, the potential harm from ex parte communications increases. ACUS urges agencies to consider whether to accept ex parte communications at this stage at all. If agencies choose to allow them, then ACUS recommends agencies document and publicly disclose any such communications.

Although ACUS recommendations are not binding on agencies, they receive much consideration by agencies. Thus, the recommendations ACUS adopted last week hold the potential to address concerns about openness and efficiency of the federal system of rulemaking, but their ultimate impact will remain unclear until agencies react.

ACUS just adopted its recommendations last week; the text of its recommendations will appear in the near future in the Federal Register.



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