[Note: this website will next be updated for Sunshine Week 2012]

Executive Summary

The Obama Administration’s Open Government Initiative has been ineffective at prodding agencies to publicly release information that would expose their own regulatory non-compliance.   The Obama Administration’s January 18, 2011 memorandum, Regulatory Compliance, indicates it is aware of the problem.  The problem was also the subject of U.S. Senate and House hearings on open government held during Sunshine Week 2011.

This website presents a case study involving the National Telecommunications & Information Administration (NTIA), Office of Government Information Services (OGIS), and Federal Advisory Committee Act (FACA) that illustrates the dynamics of the problem. NTIA, which is part of the U.S. Department of Commerce, manages hundreds of billions of dollars worth of public assets (spectrum) used by federal agencies; OGIS, which is part of the National Archives and Records Administration, was created in 2009 and touted as a way for the public to appeal agency non-compliance with FOIA; and FACA regulates the public disclosure of standing lobbying committees made up of representatives from an agency’s key stakeholders.

Public policy recommendations include strengthening FACA’s transparency provisions, especially in relation to the application and ethics information submitted by advisory committee members.

Introduction

On January 21, 2009, President Obama issued a memorandum on Transparency and Open Government, which said that “[m]y Administration is committed to creating an unprecedented level of openness in Government.”

On the same day, he issued a memorandum on the Freedom of Information Act, which said that  government agencies “should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

Recognizing that merely calling on government agencies to become more open does not ensure compliance, on January 18, 2011, the President issued a memorandum seeking greater disclosure of agencies’ regulatory compliance, including regulatory compliance with his December 8, 2009 Open Government Directive.  On March 14, 2011, the Administration reiterated that “agencies will proactively provide information about their regulatory compliance and enforcement activities, so that the public can hold both regulated parties and agencies themselves more accountable.”

The President’s memorandum implies but does not specifically state that federal agencies may have the greatest disincentive to comply with the Open Government Directive when complying would involve evidence of their own institutional corruption, where institutional corruption is defined as either agency actions that don’t comply with the spirit or letter of the laws an agency has been entrusted by the public to enforce, or agency actions that are inconsistent with an agency claim to act on behalf of the public.

This website provides a case study of a failure of the President’s Open Government Directive.  The case involves a series of easy-to-fulfill FOIA requests indicating agency negligance, albeit of a very minor sort, in the management of a half trillion dollar asset.

NTIA

The National Telecommunications and Information Administration (NTIA), which is part of the U.S. Department of Commerce, is responsible for overseeing hundreds of billions of dollars worth of government spectrum assets (also known as the “public airwaves”) The public spectrum assets are used by dozens of different federal agencies, most prominently the Department of Defense, Department of Homeland Security, and Department of Transportation.

Arguably, no other public asset has been mismanaged at greater cost to the public than the spectrum overseen by the NTIA.   Since the federal government assigns spectrum, it was relatively easy to assign much of it to itself, especially during the early days of wireless communications when commercial uses of spectrum were minimal.  Since every federal agency has communications needs and could acquire spectrum without paying for it, the agencies had an incentive to hoard and otherwise underutilize spectrum.   Instead of serving as the public’s steward, the NTIA too often was captured by the agencies and functioned to provide the agencies with political cover for their underutilized spectrum.

Many of the frequencies used by federal agencies came to be shared with powerful special interests.  In addition to telecommunications companies that were primarily in the business of providing telecommunications services, these included federal contractors who hired many former federal employees and provided services to the federal government that were enhanced by wireless communications.  These companies, which the federal government awarded a seemingly constant stream of spectrum windfalls, found that collusion with each other and the NTIA at the expense of the public was often their best political strategy.

NTIA’s Culture of Secrecy

I have previously estimated that, since World War II, the NTIA and the Federal Communications Commission (FCC), often working together, have given away to the private sector, including some of the wealthiest individuals and most profitable companies, approximately $480 billion worth of the public’s spectrum rights.   As with other corporate welfare, this has been done legally via the political process and facilitated by the ability of spectrum lobbyists to operate below the public radar.   Since spectrum is an invisible resource that neither reporters nor the public tend to understand, operating below the public radar has been remarkably easy.  My book, Speak Softly and Carry a Big Stick, describes how one spectrum player, the local TV broadcast industry, has played this low visibility spectrum rights acquisition game with great success.

One reason the NTIA has been able to get away with this mismanagement of public assets has been because of the culture of secrecy and faux public transparency it has created.  To be sure, transparency by itself won’t make the NTIA accountable to the public. Nevertheless, it is an essential prerequisite of such accountability.

I’ve been interested in NTIA’s culture of secrecy regarding public spectrum assets since researching and writing the Citizen’s Guide to the Airwaves in the early 2000s, when I discovered that I could not access the computer programs and databases used internally by NTIA to manage the spectrum.   In the middle of the 2000s, with the goal of writing a major study on how federal spectrum was managed, I submitted more than a dozen FOIA requests to the NTIA and the federal agencies whose spectrum it overseas.  The agencies, including the NTIA, routinely either ignored my requests or refused to grant me media status (allowing free or discounted access to public records) while charging prohibitive amounts for the information I sought.  I have not included those FOIA requests and responses in this case study, but they inform it.

Indicative of the mindset I confronted, one Department of Defense official called me up to grill me to determine whether I might be a terrorist.  After presumably determining that I wasn’t a terrorist, the official provided none of the information I requested.  Whereas I thought I was gathering information about the government’s use of spectrum, it turned out that the tables were reversed.

One conclusion I drew from this experience was that there needed to be a public, online inventory of all the public airwaves—and not just those administered by the FCC.  The NTIA needed to publish its spectrum information proactively and online–even if the federal agencies objected–because relying on the FOIA process was a recipe for preserving the culture of faux transparency within the federal spectrum community.  Legislation was subsequently introduced in Congress to create such an inventory.

By the end of 2007, I was done tracking spectrum policy and shifted my focus to open government policy.  After the Obama Administration launched its Open Government Initiative in early 2009, NTIA’s leadership started not only proclaiming that it was committed to operating transparently but also launching initiatives to make the NTIA more transparent.  This created an opportunity for me to combine my interest in open government with the government’s managaement of its own spectrum assets.

CSMAC

Created by an executive order of the U.S. President, the Commerce Department’s Spectrum Management Advisory Committee (CSMAC) advises NTIA’s spectrum managers and is regulated under the Federal Advisory Committee Act (FACA).  During FY2010, the federal government regulated under FACA 1,004 active advisory committees, with 74,336 active members, and the operating cost of these committees was $386 million (see CRS’s Federal Advisory Committees: An Overview).

According to the General Accounting Office, “Because advisory committees provide input to federal decision makers on significant national issues, it is essential that their membership be, and be perceived as being, free from conflicts of interest and balanced as a whole” (Federal Advisory Committee Act: Issues Related to the Independence and Balance of Advisory Committees, p. ii).

Other than government employees and government contractors, the two main categories of advisory committee members under FACA are special government employees and representatives (Ibid 5).  Special government employees are subject to conflict-of-interest disclosure; represeantatives are not.  A representative openly speaks on behalf of a stakeholder group; a special government employee provides advice based on what is best for the government.  Since special government employees nevertheless have conflicts of interest, federal agencies routinely seek waivers for those conflicts of interest.  About two-thirds of all non-government federal advisory committee members are special government employees (Ibid., p. 13).  All CSMAC members have been designated as special government employees.

Following CSMAC is arguably the best way for a citizen such as me—one not affiliated with a well-connected interest group–to monitor NTIA’s management of spectrum, which, compared to the FCC’s spectrum management, receives substantially less trade press, mass media, and academic coverage.  For several years I had wanted to serve on CSMAC to pursue my research, and one year during the Bush Administration applied unsuccessfully to do so.

Despite the fact that CSMAC members are all designated special government employees rather than representatives, CSMAC’s membership as a whole is supposed to be democratically representative.  According to its charter:

“The Committee will have no fewer than five (5) members and no more than twenty-five (25) members.  The Committee will be fairly balanced in terms of the points of view represented by members and the functions to be performed.  It will reflect a balanced cross-section of interests in spectrum management and policy reform, including non-Federal Government users; State, regional, and local sectors; technology developers, and manufacturers; academia; consumer groups; and service providers with customers in both domestic and international markets.”

CSMAC’s charter also stipulates that CSMAC will operate transparently and advise NTIA’s leadership on how best to manage hundreds of billions of dollars worth of spectrum:

“The Committee, through a balanced membership, will provide non-Federal Government and private sector input on U.S. spectrum management policy in a manner consistent with greater disclosure and transparency.  The Committee serves to facilitate increased understanding among all spectrum users about their respective interests.  The Committee will provide advice to the Assistant Secretary for Communications and Information to assist in developing and maintaining spectrum management policies that enable the United States to maintain or strengthen its global leadership role in communications technology and services.”

The focus on transparency is remarkable because most of CSMAC’s members have sought to do their spectrum lobbying below the public radar (see J.H. Snider, The Art of Spectrum Lobbying). Most CSMAC members receive compensation from companies or trade associations that have successfully lobbied, using perfectly legal means, to receive large spectrum windfalls from the government.  One CSMAC member, a former NTIA administrator, helped start and was a major stockholder in a private company (Nextwave) that received a windfall of public spectrum rights worth more than $10 billion.  Another has been a top lobbyist for an industry (local TV broadcasting) that has received tens of billions of dollars worth of spectrum rights over the last few decades.  Another, a former top FCC official, was a senior executive at a company (SkyTerra) that not only received hundreds of millions of dollars worth of spectrum rights preceding and during his tenure on the CSMAC but also cashed out when his company was sold in what became a highly controversial transaction approved by the FCC. (See Harbinger Merges With Skyterra, Moves Forward With 4G Wireless Plans and Did Harbinger Hedge Fund Buy Influence With White House?; Probe Asked of FCC Spectrum Giveaway).

Many other CSMAC membes have more subtle conflicts; for example, device makers whose clients are carriers dependent on spectrum; academics and think tank analysts who receive visibility, inside tips, and consulting fees from their assoications with trade asociations and corporations dependent on spectrum; and regulatory policy professionals (common category of most CSMAC members) who aspire to government jobs doing spectrum policy, have many close friends in those positions, or otherwise don’t want to criticize the agency personnel with whom they regularly seek access and lobby either directly themselves or indirectly via colleagues who specialize in that task.

Among NTIA insiders, it is said that if you know the economic interest of a CSMAC member, you know in advance the “expert advice in the public interest” that member will offer in response to almost any question presented to CSMAC.

In terms of its democratic legitimacy, the most important questions concerning CSMAC involve the expertise and interests represented by its members.  Overall, CSMAC’s membership does an excellent job representing the major commercial interests with a stake in the NTIA’s spectrum policies.  But the interests of the major commercial interests and the public often don’t overlap. Often the commercial interests collude to protect each other’s government spectrum subsidy and to acquire more spectrum subsidies (in the form of spectrum rights, usually defined in obscure technical terms) at the public’s expense. Accordingly, commercial interests have been largely indifferent both to spectrum giveaways (unless granted to a direct competitor) and to federal agency spectrum mismanagement (because it has no direct effect on their businesses).  The purportedly non-commercial interests represented on CSMAC seem to consistently support one or more of the commercial factions rather than the unrepresented public.

These problems of democratic representation are common to many federal advisory committees (e.g., see the Center for Science in the Public Interest’s Twisted Advice: Federal Advisory Committees are Broken and GAO’s Federal Advisory Committee Act: Issues Related to the Independence and Balance of Advisory Committees).  But they may be accentuated on CSMAC because of the perfect conditions for special interest politics represented by spectrum policy: highly concentrated benefits for corporations and industries positioned to reap spectrum windfalls, highly diffuse costs to taxpayers who must pay for those windfalls, and widespread indifference and ignorance on the part of the public and press to even the most basic issues in spectrum policy.

There are many new laws that could be passed to make FACA advisory committees such as CSMAC more democratically accountable.  But I want to focus here on only two issues of regulatory compliance: the vetting by NTIA staff of CSMAC members’ claimed credentials on their application statement and claimed financial interests on their Form 450 ethics statement.

Since there has been no public disclosure of CSMAC member statements of credentials and financial interests, NTIA staff has relatively little incentive to vet them or publicly disclose information on them that could prove to be a political embarrassment.  My FOIA requests focused on this question of NTIA due diligence in following the spirit and letter of the laws concerning the vetting of claimed credentials and financial interests.

All CSMAC applicants must submit a statement of interest and credentials to be selected to serve as a CSMAC member.  But only successful CSMAC applicants must also submit a statement of financial interests (Office of Government Ethics Form 450).

The initial statement of interest and credentials and the final statement of financial interests are covered under different public disclosure laws.  The statements of interest and credentials of successful CSMAC applicants is a public record; the statement of financial interests is not.

Since the statements of financial interest are not public documents, their accuracy cannot be observed directly; that is, by reading the documents.  However, their accuracy can be inferred indirectly by seeking public documents on NTIA’s due diligence in vetting the statements.

Statement of Interest and Credentials

I had worked with one of the individuals selected to serve on CSMAC and knew that individual’s propensity to take credit for other peoples’ work as his own.  This type of credit taking is widespread in think tank and advocacy circles in Washington, DC. As in the business and political worlds, individuals and institutions often have incentives to take as much credit as possible for their own work while giving to competitors as little credit as possible.  Consider a company that is good at ferreting out and appropriating the best research and ideas from competitors.  That company is unlikely to acknowledge or compensate those competitors as long as the research and ideas were not protected by intellectual property laws, the company was doing nothing illegal, and the company had no particular need for that competitor’s goodwill.

However, applying to serve on a federal advisory committee regulated under FACA is a different type of matter than the routine self-puffery we associate with personal salesmanship and organizational marketing.  Applicants are under a legal obligation to state their credentials accurately, and it’s the job of agency officials to vet those claimed credentials on behalf of the public.  The catch is, those applications are typically not meaningfully accessible to the public, so no one really knows whether agency professionals did their due diligence prior to appointing a FACA member.   Meanwhile, the applicants know that the agency personnel don’t have an incentive to carefully vet applications, except for politically sensitive information.  They also know that the applications are typically not made public so that there is no one besides agency personnel to vet them.  For applicants already inclined to self-puffery, the system gives them a strong incentive to indulge that inclination.

Using FOIA, I asked for the statement of interest and credentials of the CSMAC member who I thought might be a good case study (for a New York Times article about the general propensity to inflate resumes, see Résumés Made for Fibbing; for a Washington Post article about the propensity to inflate military resumes in particular, see Exposing falsified valor; One man’s database helps protect medals’ integrity).  NTIA rejected my FOIA reques, so I appealed the rejection to the Department of Commerce, of which NTIA is a part.

The Department of Commerce let the appeal drag on for many months, so I appealed to the newly formed and idealistic OGIS.  OGIS explained the law to the Department of Commerce, and the Department of Commerce reneged and sent me the statement of interest and credentials.

I also requested information about NTIA’s general due diligence in vetting statements of interest and credentials.  NTIA approved the request but rejected my request for media status to waive the fees.  Since the fee was outside my price range, I appealed the decision. And since I received a similar rejection for my request for the statement of financial interests due diligence, I combined the appeals into a single appeal.

Finally, I requested that the applications of all future successful CSMAC applicants be placed online.  This would give NTIA officials a greater incentive to do their due diligence vetting applicant statements because they would risk public exposure for not doing so.   CSMAC’s Designated Federal Officer told me that he, the CSMAC co-chairs, and the administrator of NTIA, were told by NTIA’s General Counsel that it would be illegal to publish this information online.  But over many months of requests to all the interested parties, I was still not able to find out which law was used to refuse this request.  This suggests that no such law exists and that agency personnel would prefer that the applications of successful applicants, like nominally public court records locked in court file cabinets, remain practically obscure.   To enhance practical obscurity without outright denial, FOIA requests can be delayed for many months until the results of such requests are politically irrelevant.

Statement of Financial Interests

Arguably much more important than the statement of interest and credentials is the statement of financial interests.  CSMAC is supposed to fairly represent all important non-government stakeholders in spectrum debates.  But if the interest of the stakeholders invited to the table are not clearly disclosed to the public, the public cannot judge how representative and thus democratic CSMAC’s membership is.  Similarly, when a particular CSMAC member makes a recommendation, often on an arcane technical matter rarely understood by the press or other members of the public, it’s important for the public to know the financial interests of that individual.   This is especially important for advisory committee members, such as academic, think tank, and consumer advocates, who are often assumed not to have industry interests (even with the so-called “good” industry interests) but do not, in fact, publicly disclose where they or their employers get their income, including in-kind benefits. I requested the statement of financial interests, which the NTIA properly rejected because such documents are exempt from public disclosure.

Unlike the statement of interest and credentials, then, the statement of financial interests is confidential.  Consequently, the only way to assess whether the NTIA is doing its due diligence in vetting those statements is indirectly by requesting public records relating to the due diligence itself.  To the extent that any such records exist, they are on the computers or in the file cabinets of the CSMAC’s Designated Federal Officer and the NTIA’s General Counsel.  I sought those records via a FOIA request and was told I could see them but that my request for a fee waiver would be denied.  Thus, only if I paid $509.78–a sum that was more than I was prepared to spend and that NTIA knew I wouldn’t spend—could I access the records.  I therefore appealed the NTIA’s decision to the Department of Commerce. It’s now more than 200 days later and the Department of Commerce has still not given me a decision regarding the appeal–despite the fact that I have made numerous inquiries in the interim seeking status updates and requesting an answer to the FOIA appeal in the time frame specified in the Freedom of Information Act.

In the interim, I have also repeatedly contacted OGIS, asking them to mediate with the Department of Commerce.  However, by not rendering a decision on my appeal, the Department of Commerce neuters OGIS because the de facto policy at OGIS is that an agency must first reject an appeal before OGIS can mediate.  In the words of OGIS, “Although customers can contact OGIS at any point in the administrative process, the Office encourages them to wait for the agency’s appeal determination before engaging OGIS” (The First Year, March 2011, page 15).  In contrast, in the early days of OGIS, when agencies viewed OGIS as the “FOIA police” (Ibid, page 9), OGIS mediated my statement of interest and credentials appeal merely after the Department of Commerce violated the law by not responding to my appeal in a timely way.

Meanwhile, the delays make the requested information less and less politically relevant.  The NTIA’s two major spectrum reports (#1 and #2) were publicly released shortly after the November 2011 elections. (The date says “October 2010” on the reports because the President asked for the reports to be published by October 1, 2010, when NTIA originally planned to release them.)  And the terms of many CSMAC members, including the CSMAC co-chairs, expired in early 2011.

Regulatory Compliance Documentation

This website includes the open government regulatory compliance correspondence with the federal government summarized above.  Look in either the right sidebar or main navigation bar for the drop down menu under the heading FOIA Requests & Appeals. The two major sets of records are under the headings:

1) Statement of Financial Interests

2) Statement of Interest and Credentials

Under Statement of Financial Interests, there are two subsets of records:

1a)  Request for Statements of Financial Interest

1b)  Request for Statements of Financial Interest Due Diligence

Under Statement of Interest and Credentials, there are three subsets of records:

2a) Request for Statement of Interest and Credentials

2b) Request for Statement of Interest and Credentials Due Diligence (in the appeal stage, this was combined with 1b above)

2c) Request for Statement of Interest and Credentials Public = Online Correspondence

Each FOIA request potentially involves three steps:

1) the initial request to NTIA

2) an appeal to the Department of Commerce, parent of NTIA

3) an appeal to OGIS

Where appropriated, the FOIA correspondence has been divided among these three steps.  In only 1b) and 2a) did I appeal to OGIS.

The current status of the five subsets is as follows:

1a)  Request for Statements of Financial Interest (rejected appropriately)

1b)  Request for Statements of Financial Interest Due Diligence (appealed July 6, 2010; no response more than eight months later, despite numerous queries seeking a response)

2a) Request for Statement of Interest and Credentials (completed after initially being rejected)

2b) Request for Statement of Interest and Credentials Due Diligence (abandoned to pursue 1b)

2c) Request for Statement of Interest and Credentials Public = Online Access (request filed March 11, 2011)

In addition to the two main sets of records, I requested records on March 14, 2011 about the names of insiders with preferential access to CSMAC proceedings.

To prioritize your reading of the FOIA correspondence, I’d suggest focusing on the correspondence regarding the Statement of Financial Interests Due Diligence.

Conclusion

The documents collected here provide a case study of open government’s Achilles’ heel: public release of information by an agency about its own regulatory non-compliance, which is in effect asking an agency to admit to and pay a penalty for its own corruption. This half glass empty approach to FOIA compliance is contrary to the U.S. Department of Justice’s half glass full approach, as indicated by its March 11, 2011 report on FOIA success stories, including the Department of Commerce (the pdf version is here), released as part of its FOIA.gov rollout.

From the standpoint of spectrum policy, more NTIA transparency, let alone a more transparent CSMAC, would hardly cure all the ills besetting America’s spectrum policy.  Nevertheless, it would send a strong signal that the special interest politics that have long dominated U.S. spectrum policymaking will no longer be tolerated.    It would also send a strong signal that the faux transparency practiced by NTIA officials will no longer be tolerated.

From the standpoint of open government, the central public policy dilemma is that agency officials have a conflict of interest in making information about their own actions available to the public.  They have no conflict making available unembarrassing information; it’s the embarrassing information that is the problem.

As the Obama Administration addresses the problem of regulatory compliance, it should seek to reduce agency discretion in choosing the types of public information to disclose and how and to whom an agency discloses it. The Obama Administration’s effort to place public information online and eliminate the need for FOIA is one step in this direction.

The launch in 2009 of an appeals body such as OGIS outside the direct control of the federal agencies is another such step.  Unfortunately, however, OGIS appears to be a paper shuffling weakling, little more than a courier passing communications from one party to another with little care or understanding of the messages it transmits.  Moreover, OGIS has been set up in a way that fosters capture by the very federal agencies it should serve as a check upon.  Unless that dynamic is changed, OGIS, as a rubber stamp for the federal agencies, may come to do more harm than good to the cause of open government.  Needless to say, OGIS’s first year report provides a very different take on its activities.

Although not currently conceptualized as a way to address agencies’ open government conflict-of-interest problem, the White House initiative to put all federal government computer services in the cloud is perhaps the most important step of all.  For example, all FACA information, ranging from public meeting information, to statements of interest and credentials by successful applicants, to requests for Form 450 compliance waivers, should be entered into the cloud and instantaneously and automatically downloaded and made public by the General Services Administration, which is responsible for collecting and publicly disclosing information about the more than 1,000 federal advisory committees.  (For related arguments about cloud computing and open government, see J.H. Snider’s Maryland’s Fake Open Government and Testimony on Maryland Senate Bill 740: Access to Public Records.)

There is also a need to expand the scope of what information should be made public.  Federal advisory committees should be treated more as a body of lobbyists and less as a body of impartial experts.  With that different conceptualization and the recognition that such bodies don’t necessarily act on behalf of the general public should come greater disclosure requirements.  Federal advisory committees should not be treated as an exemption from the lobbyist and ex parte disclosure laws.  As a rule of thumb, the public should have the same access to information about the impartiality and expertise of Federal advisory committee members as is provided to federal agency staff.

Two bills in the 112^th Congress address some of the concerns expressed in this case study.  S 627 (The “Faster FOIA” Act)  attempts to improve access to FOIA records generally, and H.R. 1144 (The Transparency and Open Government Act)  attempts to improve the transparency of the FACA process specifically.  Neither directly focus on the vetting of statements of credentials or financial interests, including making the vetting process more transparent by, for example, requiring the electronic disclosure in a centralized database of agency requests to waiver conflict-of-interest restrictions on FACA membership.  Two features of H.R. 1144 that are especially noteworthy and deserve to be applauded for facilitating the enforcement of FACA transparency provisions are the use of GSA to implement cloud computing, including storage and distribution of print and multimedia records of FACA meetings, and the U.S. Comptroller General to do compliance reviews, including whether agencies are appropriately appointing advisory members.

Agencies will always prefer to retain control of and, where necessary, hide information that might be used to reflect badly on their compliance with the law and their own public commitments.  But through better design of governmental institutions and the use of new, more powerful information technologies, agencies can be made democratically accountable.  This case study provides additional evidence that FOIA and FACA are ripe for such reforms.

–J.H. Snider, revised April 3, 2011.