Transparency Provisions Inside the FY18 Appropriations Law

Photo source: Wolfram Burner.

The recently-signed omnibus spending law contains transparency provisions intended to make our federal government just a little more open and accountable. They include: creating a hub for the reports that explain each agency’s federal spending request; a first step towards opening up federal court orders for everyone to read without charge; creating a central repository for reports by the federal Inspectors General; and making reports by the Congressional Research Service available to everyone.

While all these measures are important, the hardest fought is public access to CRS reports. CRS provides non-partisan unbiased explanations of policy matters before Congress, and they make it easier for all of us to have conversations based on the facts.

Congressional Budget Justifications

Photo source: Dr. Case

When agencies submit their budget requests to Congress, they include Congressional Budget Justifications (CJs), which are plain language explanations of what the agency plans to do and how it will spend the money. Unlike the president’s budget proposal and accompanying documents, which are unintelligible except (perhaps) to experts, the CJs make sense to just about everyone.

The Office of Management and Budget (OMB), which manages the executive branch’s budget process, sets the rules for how the CJs are produced and what they contain, including requiring they become publicly available within 2 weeks of submission. But OMB has not required that the CJ’s be published in one central location so they’re easy to find.

The FY18 House Financial Services and General Government Appropriations subcommittee report contain language that strongly encourages OMB to fix this accessibility problem. (Page 30)

Online Budget Repository.—The Committee encourages OMB to develop a central online repository where all Federal agency budgets and their respective justifications are publicly available in a consistent searchable, sortable, and machine readable format.

PACER

PACER is the online system that allows public access to court opinions. Unfortunately, there’s reason to believe the courts significantly overcharge users for access. The FY18 House Financial Services and General Government Appropriations subcommittee reports contains language instructing a report back from the Courts on PACER’s operations. This could set the stage for further reform, including making court orders and opinions available for free for everyone. (See page 35.)

The Judiciary shall provide to the House and Senate Committees on Appropriations a report addressing (1) trends in Public Access to Court Electronic Records (PACER) revenues since passage of the E-Government Act of 2002; (2) sources of PACER revenues broken out by general types of users, such as federal government, corporations, and individuals, over a five fiscal year period; (3) an itemization of how PACER revenues are spent (including the annual cost of operating the PACER Service Center, which performs functions such as billing and customer support) over the same five fiscal year period; and (4) initiatives planned or underway by the Judiciary to improve PACER technology, operations, or management for the purpose of providing greater functionality, an improved user experience, or greater efficiency. This report shall be provided no later than 120 days after the enactment of this Act.

The report is due to Congress within 120 days of enactment, or by Saturday, July 21, 2018.

Inspectors General Reports

Photo source: Anders Lanzen

There’s more than 6 dozen federal inspectors general embedded throughout the government, and it’s their job to help keep agencies on the straight and narrow. With a similar mission but different perspective is the Government Accountability Office, which conducts reviews on behalf of Congress looking for waste, fraud, and abuse. The reports from GAO and all the IGs are on separate websites, which makes it hard to search across all their reports for common issues.

The House Legislative Branch Appropriations Committee report direct GAO to look into consolidating all GAO and IG reports into one website. (See page 23).

Inspector General Reports: Within 180 days of enactment, the U.S. Government Accountability Office (GAO) shall issue a report to the Committee that examines the costs, feasibility, and utility of requiring all agency non-confidential inspector general reports to be made available contemporaneously through the GAO website.

The GAO report must be provided to Congress within 180 days, or Wednesday, September 19, 2018. Between the time the language was suggested and became law, the Inspectors General, through their collaborative council known as CIGIE, have begun publishing the vast majority of IG reports online at oversight.gov.

Public Access to CRS Reports

After nearly a quarter century of requests from the public, Congress required the non-partisan reports of its Congressional Research Service to be published online in one central location by the Library of Congress. These reports provide a non-partisan, expert perspective into the policy matters before Congress. (More background here.)

CRS must provide the reports to the Library of Congress within 90 days of the bill’s enactment, no later than Thursday, June 21, and the Library of Congress must turn the website on within 90 days of receiving notification from CRS, or no later than Wednesday, September 19, 2018. (The full legislative language is below.)

Civil society had begun gathering and publishing all CRS reports on everycrsreport.com. The website provided a model and impetus to Congress making the reports available itself.

The following is the bill text that requires CRS reports to be publicly available. (See the enacted law.)

Page 1082 lines 8-18

Provided further, That a non-confidential CRS product includes any written product containing research or analysis that is currently available for general congressional access on the CRS Congressional Intranet, or that would be made available on the CRS Congressional Intranet in the normal course of business and does not include material prepared in response to Congressional requests for confidential analysis or research.

Page 1092-1104

equal access to congressional research service reports

Sec. 154. (a) Definitions.—

(1) CRS PRODUCT.—In this section, the term “CRS product” means any final written work product of CRS containing research or analysis in any format that is available for general congressional access on the CRS Congressional Intranet.

(2) CRS REPORT.—

(A) IN GENERAL.—In this section, the term “CRS Report” means any written CRS product, including an update to a previous written CRS product, consisting of—

(i) a Congressional Research Service Report; or

(ii) a Congressional Research Service Authorization of Appropriations Product and Appropriations Product, which is available for general congressional access on the CRS Congressional Intranet.

(B) EXCLUSIONS.—The term “CRS Report” does not include—

(i) any CRS product that is determined by the CRS Director to be a confidential product or service because it was prepared in response to a congressional request or requests for confidential analysis or research and is not available for general congressional access on the CRS Congressional Intranet;

(ii) any Congressional Research Service Report or any Congressional Research Service Authorization of Appropriations Product and Appropriations Product reported or produced before the effective date of this Act which, as of such effective date, is not available for general congressional access on the CRS Congressional Intranet; or

(iii) a written CRS product that has been made available by CRS for publication on a public website maintained by the GPO Director (other than the Website) or the Library of Congress.

(3) OTHER DEFINITIONS.—In this section—

(A) the term “CRS” means the Congressional Research Service;

(B) the term “CRS Congressional Intranet” means the Website maintained by CRS at www.crs.gov, or a successor website, for the purpose of providing to Members and employees of Congress access to information from CRS;

(C) the term “CRS Director” means the Director of CRS;

(D) the term “Librarian of Congress” means the Librarian of Congress appointed pursuant to 2 U.S.C. 136–1;

(E) the term “Member of Congress” includes a Delegate or Resident Commissioner to Congress; and

(F) the term “Website” means the website established and maintained under subsection (b).

(b) Availability Of CRS Reports Through Library Of Congress Website.—

(1) WEBSITE.—

(A) ESTABLISHMENT AND MAINTENANCE.—The Librarian of Congress, in consultation with the CRS Director, shall establish and maintain a public website containing CRS Reports and an index of all CRS Reports contained on the website, in accordance with this subsection.

(B) FORMAT.—On the Website, CRS Reports shall be searchable, sortable, and downloadable, including downloadable in bulk.

(C) FREE ACCESS.—Notwithstanding any other provision of law, the Librarian of Congress may not charge a fee for access to the Website.

(2) UPDATES; DISCLAIMER.—The Librarian of Congress, in consultation with the CRS Director, shall ensure that the Website—

(A) is updated contemporaneously, automatically, and electronically to include each new or updated CRS Report released on or after the effective date of this section;

(B) shows the status of each CRS Report as new, updated, or archived; and

(C) displays the following statement in reference to the CRS Reports included on the Website: “These documents were prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.”.

(3) FURNISHING OF NECESSARY INFORMATION AND TECHNOLOGY.—The CRS Director shall consult with and provide assistance to the Librarian of Congress to ensure—

(A) that the Librarian of Congress is provided with all of the information necessary to carry out this section, including all of the information described in clauses (i) through (iv) of subsection (c)(1)(A), in such format and manner as the Librarian of Congress considers appropriate; and

(B) that CRS makes available any information and assistance as may be necessary to facilitate the contemporaneous, automatic, and electronic provision of CRS Reports to the Librarian of Congress as required under this section.

(4) NONEXCLUSIVITY.—The Librarian of Congress may publish other information on the Website.

(5) ALTERNATIVE TECHNIQUES.—The Librarian of Congress and the CRS Director may use additional techniques to make CRS Reports available to the public, if such techniques are consistent with this section and any other applicable laws.

(6) ADDITIONAL INFORMATION.—The CRS Director is encouraged to make additional CRS products that are not confidential products or services available to the Librarian of Congress for publication on the Website, and the Librarian of Congress is encouraged to publish such CRS products on the Website.

(7) EXPANSION OF CONTENTS OF ANNUAL REPORT TO CONGRESS TO INCLUDE INFORMATION ON EFFORTS TO MAKE ADDITIONAL PRODUCTS AVAILABLE ON WEBSITE.—Section 203(i) of the Legislative Reorganization Act of 1946 (2 U.S.C. 166(i)) is amended by striking the period at the end and inserting the following: “, and shall include in the report a description of the efforts made by the Director to make additional Congressional Research Service products that are not confidential products or services available to the Librarian of Congress for publication on the website established and maintained under section 124 of the Legislative Branch Appropriations Act, 2018.”.

(c) Website Contents.—

(1) SPECIFIC REQUIREMENTS FOR REPORTS POSTED ON WEBSITE.—

(A) RESPONSIBILITIES OF LIBRARIAN OF CONGRESS.—With respect to each CRS Report included on the Website, the Librarian of Congress shall include—

(i) the name and identification number of the CRS Report;

(ii) an indication as to whether the CRS Report is new, updated, or archived;

(iii) the date of release of the CRS Report; and

(iv) any other information the Librarian of Congress, in consultation with the CRS Director, considers appropriate.

(B) RESPONSIBILITIES OF CRS DIRECTOR.—With respect to each CRS Report included on the Website, the CRS Director shall, prior to transmitting the Report to the Librarian of Congress—

(i) at the discretion of the CRS Director, remove the name of and any contact information for any employee of CRS; and

(ii) include in the CRS Report the following written statement: “This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as this CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material.”.

(2) SPECIFIC REQUIREMENTS FOR INDEX ON WEBSITE.—The Librarian of Congress shall ensure that the index of all CRS Reports published on the Website is—

(A) comprehensive;

(B) contemporaneously updated;

(C) searchable;

(D) sortable;

(E) maintained in a human-readable format;

(F) maintained in a structured data format;

(G) downloadable; and

(H) inclusive of each item of information described in paragraph (1)(A) with respect to each CRS Report.

(d) Conforming Amendment To Duties Of CRS.—Section 203(d) of the Legislative Reorganization Act of 1946 (2 U.S.C. 166(d)) is amended—

(1) by striking “and” at the end of paragraph (7);

(2) by striking the period at the end of paragraph (8) and inserting “; and”; and

(3) by adding at the end the following new paragraph:

“(9) to comply with the requirements of, and provide information and technological assistance consistent with, section 124 of the Legislative Branch Appropriations Act, 2018.”.

(e) Rules Of Construction.—

(1) NO EFFECT ON SPEECH OR DEBATE CLAUSE.—Nothing in this section may be construed to diminish, qualify, condition, waive, or otherwise affect the applicability of clause 1 of section 6 of article I of the Constitution of the United States (commonly known as the “Speech or Debate Clause”) or any other privilege available to Congress or Members, offices, or employees of Congress with respect to any CRS Report made available online under this section.

(2) CONFIDENTIAL COMMUNICATIONS.—Nothing in this section may be construed to waive the requirement that any confidential communication by CRS to a Member, office, or committee of Congress shall remain under the custody and control of Congress and may be released only by Congress and its Houses, Members, offices, and committees, in accordance with the rules and privileges of each House and the requirements of this section.

(3) DISSEMINATION OF CRS PRODUCTS.—Nothing in this section may be construed to limit or otherwise affect the ability of a Member, office, or committee of Congress to disseminate CRS products on a website of the Member, office, or committee or to otherwise provide CRS products to the public, including as part of constituent service activities.

(f) Effective Date.—

(1) IN GENERAL.—Except as provided in paragraph (2)(C), this section and the amendments made by this section shall take effect 90 days after the date on which the Librarian of Congress submits the certification described in paragraph (2)(B).

(2) PROVISION OF INFORMATION AND TECHNOLOGY.—

(A) CRS DEADLINE.—Not later than 90 days after the date of enactment of this Act, the CRS Director shall provide the Librarian of Congress with the information necessary for the Librarian of Congress to begin the initial operation of the Website.

(B) CERTIFICATION.—Upon provision of the information described in subparagraph (A), the Librarian of Congress shall submit to Congress a certification that the CRS Director has provided the information necessary for the Librarian of Congress to begin the initial operation of the Website.

(C) TECHNICAL DELAYS.—In the event of technical difficulties encountered in planning or implementing the requirements of this section and the amendments made by this section, upon providing a detailed report submitted by the Librarian of Congress or the CRS Director to the Committees on Appropriations of the House and the Senate detailing the nature of the technical difficulties and the timeline for resolving such technical difficulties, the effective date established by subsection (f)(1) shall be extended for up to 90 additional days.


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