ࡱ> 685 %bjbjT~T~ 4,66      8W c_0w^ 1^   R  t!T@j/0_ D_ : The Gap between Federal and Local Transparency and the Importance of Institutions Demanding Openness Peter M. Shane I am a law professor with a specialty in separation of powers law, especially law as it applies to the President. I am also a resident of Columbus, Ohio. In the last few weeks, in my role as law professor, I went online to conduct research on the federal governments recent record in intelligence oversight. I found not only helpful external evaluations, but key government documents, such as a report by the Justice Departments Office of Inspector General, entitled, A Review of the FBIs Use of National Security Letters: Assessment of Corrective Actions and Examination of NSL Usage in 2006. (HYPERLINK "http://www.justice.gov/oig/special/s0803b/final.pdf"http://www.justice.gov/oig/special/s0803b/final.pdf) In a matter of minutes, I was literally swamped with relevant information. As it happens, in the last few weeks, in my role as citizen of Columbus, I also went online to see what the City of Columbus Board of Education was planning to do with a vacant elementary school building next door to my home. My interest was especially piqued because I had received from the city a written notice concerning an upcoming public hearing on a potential zoning change that would allow a larger parking area at the school. On this subject, I could find nothing online. Nothing. Nada. No government source. No newspaper story. No record of a Board of Education decision. No record of the zoning change. Whats wrong with this picture? My guess is that the contrast between these two experiences an information flood regarding the federal government and an online void regarding an important aspect of local governance captures what is a common plight for many Americans. Despite a much vaunted media turn to the hyperlocal, it is often more difficult to learn about local than national or international affairs. To be sure, there are many positive developments to report on the state and local front. For example, researchers at the United States Public Interest Research Group (U.S. PIRG) recently concluded: State governments across the country have been moving toward making their checkbooks transparent by creating online transparency portalsgovernment-operated websites that allow visitors to see who receives state money and for what purposes. Forty states provide transparency websites that allow residents to access databases of government expenditures with checkbook-level detail. Most of these websites are also searchable, making it easier for residents to follow the money and monitor government spending. (HYPERLINK "https://pincdn.s3.amazonaws.com/assets/d9fdc00932908859d61cf13d0f8f3318/Following-the-Money-2011-vPA.pdf"https://pincdn.s3.amazonaws.com/assets/d9fdc00932908859d61cf13d0f8f3318/Following-the-Money-2011-vPA.pdf) There are likewise good examples at the local level especially in big cities like New York, San Francisco, and Washington, D.C. of ambitious public data sharing. Moreover, a 2009 report by the Public Technology Institute found that nearly three-quarters of jurisdictions are using both Twitter and Facebook to push information to local citizens. (HYPERLINK "http://www.facebook.com/note.php?note_id=135633714721"http://www.facebook.com/note.php?note_id=135633714721) But it is hard to conclude that these information initiatives come close as of yet to making state and local government fully visible to the everyday public. The reasons, I suspect, are two-fold. First, state and local governments are under extraordinary resource pressure. Practices of open government take time, money, and leadership. All are in short supply. It may be, of course, that transparency initiatives would be valuable investments for state and local government if they increase trust and popular support. In the case of D.C., an Apps for Democracy contest, which offered a $50,000 prize for the most useful and user-friendly application based on government data, prompted the development of 47 different applications with an estimated value to the city of $2.3 million. (HYPERLINK "http://www.pewinternet.org/~/media//Files/Reports/2010/PIP_Government_Online_2010.pdf"http://www.pewinternet.org/~/media//Files/Reports/2010/PIP_Government_Online_2010.pdf ) Yet, an investment strategy aiming for longer-term and perhaps nonmonetizable benefits may seem unrealistic for jurisdictions aiming simply to cut expenditures. The second problem is the demand side. Governments are generally nudged to shared information because of three levers law, media, and public opinion. Federal transparency has been notably advanced, of course, by enactment of the Freedom of Information Act and its amendments. Likewise, one suspects that the impetus for the trend towards increasing state fiscal transparency is, in large part, the federal legal requirement of transparency with regard to state spending of stimulus funds. (HYPERLINK "http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ282.109.pdf"http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_cong_public_laws&docid=f:publ282.109.pdf ) Of likely equal importance, however, is the presence of watchdog institutions demanding information information that governments might otherwise withhold, formal legal requirements notwithstanding. A great deal of what I was able to discover online about federal intelligence oversight came to light because of federal FOIA litigation. The often-noted shrinkage in statehouse news bureaus and in the news staffs of local newspapers means that pressure for state and local disclosure is likely to go down, even as technologies that could support transparency expand. And, closely related, is the phenomenon of public sentiment. Interested citizens promote government openness at the federal level not only through their personal demands for information access, but also through the support they lend to nonprofit organizations that pursue government openness. A great deal of what I am able to find out about the federal government is the result of the work of OMBWatch, a nonprofit organization formed in 1983 that is one of the only reliable sources of relatively comprehensive news reporting on the federal bureaucracy whose work is available free to interested readers. Although many of its beneficiaries presumably free-ride on the donations of others, the universe of people interested in federal accountability is apparently large enough to yield grants and contributions adequate to sustain its work. Generating even proportionate levels of support at the state and, even more obviously, the local level for similar watchdogs may be difficult given the far smaller base of interested parties. From these observations, I think two conclusions follow: First, exhortation will not be enough to elicit from state and local governments the levels of transparency we ought to see in order to help assure accountable government and foster greater public engagement in local problem solving. Law is critical. Second, government transparency and robust news reporting should be seen as symbiotic assets, not as alternatives. Without institutions at the state and local level working vigorously to elicit government openness, even stringent laws on the books will not be enough to achieve the public interest. We need institutions, not just interested citizens, committed to enforcing the governments obligations of disclosure.        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