May 16, Progressive Party with Sen. Schumer Get tickets

A Snail Mail Law in a Digital World

The Obama administration took an important step toward fulfilling President Obama’s promise of “unprecedented” government openness earlier this month as federal agencies released plans for implementing the White House’s Open Government Directive. But at the same time, the White House was forced to address a significant legal barrier to fulfilling this promise—the outdated Paperwork Reduction Act.

The administration’s open government agenda includes a host of transparency initiatives, such as Data.gov, an online clearinghouse of more than 150,000 federal datasets, and halving the backlog of pending Freedom of Information Act requests. But the most intriguing aspects of this agenda go beyond transparency—offering a new vision of democracy for the Internet age.

The White House hopes to transform government into a two-way street where policymakers and the public are empowered to interact with each other and share ideas on how government can perform better. The Open Government Directive required each agency to describe how it will “integrate public participation and collaboration into its activities.”

Standing in the way is the Paperwork Reduction Act, which was enacted long before social media, email, and the World Wide Web made meaningful collaboration between government and the general public a possibility. The Office of Information and Regulatory Affairs within the White House Office of Management and Budget issued two memoranda that seek to reconcile the PRA with open government efforts. This guidance is helpful and necessary, but reform of the law itself should also be on the agenda—as became clear when agencies developed their open government plans.

The public was given the opportunity to comment in online forums on what each agency’s open government plan should contain. But agencies typically asked the public to “give us your comments on our open government plan” without explaining what specific issues the agency was wrestling with, or what sort of issues were beyond the agency’s power to address. As a result, most suggestions were irrelevant, impractical, or dated. NASA classified only 28 percent of the suggestions it received as “things we can do,” while classifying 58 percent as either “off-topic,” “things we can’t do,” or “things we’ve done.”

The Paperwork Reduction Act helps explain why agencies provided so little guidance to public commenters. When the PRA became law in 1980, only a handful of affluent Americans and businesses enjoyed access to the monochrome workstations that evolved into today’s desktop computers. The original IBM PC would not be introduced for another year, and businesses still conducted much of their communications through paper letters and forms delivered by the U.S. Postal Service.

Congress reasonably determined in that environment that the process of federal information gathering, for purposes ranging from taxes to regulatory compliance, unnecessarily burdened American business, nonprofits, and citizens. The world today, however, is very different than it was in 1980. The very same law that was enacted to protect against excessively burdensome paperwork now serves to inhibit full public participation in a new digital democracy.

Under the PRA, any time a federal agency seeks “answers to identical questions posed to…ten or more persons,” the agency must first submit the proposed questions to a lengthy notice, comment, and review process that requires a minimum of 90 days to complete. Spooked by this cumbersome process, agencies largely erred on the side of extreme caution in soliciting online feedback on their open government plans.

Agencies avoided triggering the PRA by issuing only the most general requests for public input. But they did this at the cost of a more informed and useful discussion between government decision makers and the public.

OIRA’s memoranda offer guidance on how agencies can engage the public without triggering the PRA. The PRA is generally not triggered by “general solicitations of comments from the public,” according to this guidance, and such a general solicitation “may have a degree of specificity” or “pose a series of specific questions.” In other words, agencies may go a lot further than simply asking the public to “give us your comments” for advice on how to address a particular problem.  

These memos, however, do not really fix the underlying issue. They helpfully clarify that the PRA does not bar agencies from asking somewhat specific questions. But they also draw very fine distinctions that agency officials will likely have a difficult time navigating. Agencies, for example, may seek information with “a degree of specificity,” but they may not “ask the public to respond to a series of specific questions” about whether “a particular program is or is not effective.”

The PRA likewise goes too far in preventing agencies from adapting their information-gathering techniques to respond to newly discovered information. Suppose, for example, that an agency conducts the first round of a survey, only to learn that the original, PRA-approved set of questions fails to provide the agency with an essential piece of information. Even if the survey could be altered to fix this problem without placing any additional burden on the public, the PRA requires a new review process before the survey can be amended.

Some information-gathering techniques are especially challenging under the PRA. For example, focus groups, whether they are conducted in person or online, require government questioners to alter the questions based on participant responses. The PRA impedes such dynamic questioning.  

Indeed, the PRA could prove a serious obstacle to several recently launched federal initiatives. The Open Government Directive requires each agency’s open government plan to detail “at least one specific, new transparency, participation, or collaboration initiative that your agency is currently implementing.”

One of the most touted of these new “flagship” initiatives is a project by the Department of Housing and Urban Development to collaborate with other agencies, nonprofits, and local communities to build a comprehensive, publicly available database of up-to-date information on which communities are experiencing increased homelessness. HUD hopes to be able to use this database to predict where homelessness is spiking before it becomes unmanageable and to “target limited resources” accordingly.

Building such a broad-reaching database and keeping it updated, however, will require HUD to collaborate with community organizations and local homelessness shelters, and maintain a dialogue with people on the ground. The PRA makes such collaboration very difficult because it prevents HUD from dynamically polling local officials and antihomelessness workers to quickly gather data on changing trends.

The PRA does allow HUD to design a specific information-gathering form that can be approved for up to three years. But it does not permit HUD to change the questions it asks without again triggering PRA review. The mere act of emailing 10 or more homeless shelter directors to ask how many people sought their services in the proceeding week could trigger the PRA’s lengthy approval process.

To be clear, the PRA’s goal of eliminating unnecessarily burdensome paperwork is a valid one, and U.S. law should continue to advance this goal. Nevertheless, the PRA’s flaw is that it assumes that providing information to the federal government is always a burden on the provider. The reality is that many Americans want to provide much-needed knowledge to federal officials. For antihomelessness advocates, the ability to coordinate with federal officials about federal homelessness policy is a boon to their efforts, not a burden.

Similarly, those who seek out federal online forums on government policy, experts who volunteer to act as sounding boards for public officials, and other individuals who willingly seek opportunities to influence government decision making do not need to be “protected” from paperwork burden. They want to collaborate with the government, but are impeded from doing so. Congress should amend the Paperwork Reduction Act—and any other pre-Internet statutes that unnecessarily hinder open governance—to promote such collaboration.

The era of monochrome terminals and snail mail is over. Today’s world is far more dynamic and interactive. It’s time for federal law to reflect this reality.

Ian Millhiser is a Policy Analyst with the Doing What Works project at the Center for American Progress.