Over the past year, there has been a great deal of activity on issues related to government transparency and secrecy, but it can remain difficult to figure out exactly what all the discussions, reports and hearings actually mean. To try to get to the bottom of this murky issue, we are breaking out our Magic Eight-Ball of Information Policy to ask a few key questions about the past year — the progress and setbacks, laid out in simple terms. We wish there was a better approach, but unfortunately, 2007 was that kind of year for government transparency, with vague and unclear answers for most questions.

Q: Have we come to our senses and restored the full reporting of toxic pollution?

A: Reply hazy; try again later

Just before the beginning of the year, the U.S. Environmental Protection Agency (EPA) made it more difficult to get complete answers on questions about toxic pollution when it raised the reporting threshold for detailed information under the Toxics Release Inventory (TRI). Since then, there have been plenty of efforts to change the answer on this issue. The New York Attorney General's office filed a Nov. 28 lawsuit on behalf of 11 other states contending the EPA has violated the law. California's magic Eight-Ball came up yes when Governor Arnold Schwarchenegger (R) signed a state law on Oct. 13 to require facilities to report toxic pollution at the old levels. At the federal level, bills have been introduced in the House and Senate to restore the TRI program, and a recent Government Accountability Office (GAO) investigation concluded that EPA deviated from its rulemaking procedures and did not perform adequate analysis of the reporting change that will have a significant impact on ability of communities to get complete information about toxic pollution production. The GAO report recommended that Congress pursue legislation to restore the TRI program. Besides California's new law, there has been no reversal of EPA's ill-conceived change to the TRI program. However, with so many efforts underway opposing the agency's new reporting thresholds, it seems like it is only a matter of time before this answer switches to yes.

Q: Are scientists able to freely discuss findings without industry or political interference?

A: Don't count on it

Scientists may not be fans of the unempirical Magic Eight-Ball, but even they would have a hard time arguing with this answer. The year saw enough examples of gagged scientists, manipulated findings and suppressed information that it approached becoming a statistically relevant sample. A deputy assistant secretary at the U.S. Fish and Wildlife Service used her influence to manipulate endangered species findings. After Vice President Cheney demanded that the Department of Interior "get science on the side of farmers", they found sufficient evidence to divert water during a drought, in the process causing the largest fish kill in history. OMB edited scientific language in EPA's cost-benefit analysis to downplay the economic benefits of a rule to tighten the standard for human exposure to ground-level ozone, also known as smog. A media policy at EPA prevented agency scientists from discussing the impact of climate change on polar bears and their habitat. In fact, a report charged that political officials throughout the Bush administration have edited and manipulated climate science communications to the media and Congress. EPA also began a process to review and consolidate its laboratory network that set off great concern among scientists, since the agency's library effort from the previous year resulted in closures and discarded information. Scientists throughout the government are hoping that next year, they'll be free to provide the public clearer and more accurate answers.

Q: Have the courts been a good check on government secrecy?

A: Better not tell you now

Throughout the year, the government has used the state secrets privilege in an attempt to dismiss claims against it, on the grounds they involve information which, if revealed, would be dangerous to national security. The states secrets privilege is being invoked in the approximately 50 lawsuits against the government and telecommunications companies alleged to be involved in the National Security Administration's Terrorism Surveillance Program (TSP). The Ninth Circuit ruled that a document detailing that TSP targeted an organization for surveillance was a state secret but that the subject matter of the suit itself was not. Because the government has openly admitted the existence of the program, the courts should stop accepting claims of state secrets to dismiss or block TSP cases from moving forward through a fair judicial process. The Sixth Circuit, on the other hand, dismissed a suit against the government because the plaintiffs failed to demonstrate specific harm caused by TSP. The plaintiffs failed to meet the requirement primarily because the government used the state secrets privilege to block access to details about the program, which may have more clearly demonstrated harm to the plaintiffs in the form of monitored communications. There are plenty of cases still pending, and likely more on the way, so the courts will have an opportunity to reverse this trend in the new year. However, it is unclear what might prompt such a change.

Q: Did the White House provide all the requested information to Congress (or the public) relating to important investigations such as those dealing with government surveillance, interrogation methods, or classification of documents by the vice president?

A: No

Whether it be secret memoranda on the legality of questionable interrogation techniques or documents relating to the government's warrantless wiretapping programs, Congress was hard-pressed and persistently thwarted in its attempts to gain access to information held by the White House. In a staggering display of constitutional hubris, Vice President Dick Cheney argued that the Office of the Vice President was not a part of the executive branch because he is endowed with legislative responsibilities of presiding over the Senate. He took such a leap of logic in order to avoid being subject to a law requiring him to release information on the number of documents he had classified, which he has been avoiding since 2002. The executive branch also managed to evade much of the oversight of its own inspectors general (IGs). NASA's IG was found to be working with the agency to avoid overly intrusive investigations, allegedly destroying records, creating a hostile environment for whistleblowers and interfering with investigations.

Q: Can I get clear information on how the federal government is spending our tax dollars on contracts and financial assistance?

A: Surprisingly, yes

Implementing a law can be murky business, but the White House's Office of Management and Budget (OMB) was able to announce USASpending.gov, created to meet the mandates of the Federal Funding Accountability and Transparency Act (FFATA), almost a month ahead of time. The site allows users to easily search trillions of dollars worth of federal contract and financial assistance spending. OMB said the site would update the spending data every two weeks and would push agencies to improve the data quality of the information. The site is modeled after OMB Watch's precedent-setting FedSpending.org software platform. Between the two sites, the public now has two different Magic Eight-Balls on federal spending to consult when they have questions. The year also included a series of contractor scandals relating to Katrina response and Iraq reconstruction. The House is looking at the next step in transparency with a variety of measures in the 2008 defense authorization bill that would greatly increase oversight of the federal contracting industry.

Q: I have lots of questions for agencies; has it gotten easier to get quick, helpful responses to requests for information?

A: Reply hazy; try again later

Unfortunately, it seems agencies have not made huge strides in responding to inquires. Reviews of FOIA performance during the year demonstrated the need for a significant overhaul of the process and secrecy continues to cast a large shroud over much government information. For the third year in a row, transparency champions on the Hill, such as Sens. Patrick Leahy (D-VT) and John Cornyn (R-TX) and Rep. Henry Waxman (D-CA), pushed to mandate improvements in agency compliance with the Freedom of Information Act (FOIA), the country's most fundamental access law. Congress was able to push the legislation through before the end of the session. Now the bill goes to the president, who will decide whether or not to sign it into law. If the president vetoes the bill, it will be a safe bet that we'll see a fourth year of effort on this issue, hopefully with a better answer at the end of it.

Q: Can we count on the federal government to tell us when we are in danger from a known toxic or other environmental hazard?

A: No

You would think that when the government knows the answer, it would provide the information openly, especially when it relates to a health hazard. Unfortunately, you'd be wrong. The year had several examples of major environmental hazards about which the government knowingly withheld important information from the public. Congressional oversight about asbestos and other contaminants in the air after the 2001 World Trade Center attacks underscored that EPA did not have enough evidence for its claims that the air was safe and manipulated the public's impression of the air quality by being unclear about where the air was allegedly safe. An April 19 court decision (Lombardi v. Whitman) acknowledged the misinformation but absolved EPA of responsibility for resulting illnesses because it found that the misinformation was not enough of a "shock to the conscious." When a court rules that the government lying to people about their safety from air pollution is not shocking enough, the bar has fallen very low in what we expect from our government. The Federal Emergency Management Agency (FEMA), unfortunately, proved the court's point by housing Hurricane Katrina victims in trailers so shoddily constructed that they released dangerous levels of formaldehyde. FEMA was aware of the possibility of formaldehyde poisoning but attempted to avoid responsibility by refusing to test the trailers. On another front, the Nuclear Regulatory Commission (NRC) covered up a March 2006 spill of uranium by labeling documents about the event For Official Use Only. Public outrage and congressional admonishments prompted the NRC to release specifics in September. Let's hope the government does a better job of coming clean with the public about environmental hazards in the new year.

Q: Can we be sure that our communications aren't being illegally monitored and that any surveillance programs are being overseen to ensure our civil rights are protected?

A: Don't ask me

The Magic Eight-Ball might be reluctant to answer this one because the answer might be tapped. Congress has, so far, been unable to pass legislation to guarantee the protection of people's rights to privacy and due process. In August, President Bush signed the Protect America Act of 2007 (PAA), granting the government the authority to wiretap anyone, including U.S. citizens, without any court approval as long as the "target" of the surveillance is located outside the U.S. After passing the bill, Congress immediately began efforts to reform the president's broad authority. The House passed the RESTORE Act (H.R. 3773), which would require a finding of probable cause for surveillance targeting American citizens, including Americans located overseas. Two Senate committees are split on whether or not to include telecommunications immunity provisions to forgive companies that handed over client information to the government in the Senate's reform bill, the FISA Amendments Act of 2007 (S. 2248). The Senate was expected to pass a PAA reform bill by the end of the year, but Senate Majority Leader Harry Reid (D-NV) pulled the bill on Dec. 17 as it became clear that the telecommunications immunity provision was creating an insurmountable backlash. Even if the Senate is able to pass the indemnity provision, no one is sure what it will end up looking like once it is reconciled with the House bill.

Q: Should we worry about exposure to toxins in consumer products and in the environment?

A: Better not tell you now

As biomonitoring research (human toxicity testing) becomes increasingly popular, reports indicate that no one has avoided chemical contamination in the industrial era. What is most alarming is what we don't know, as research confirming or refuting the chemical causation of health problems is woefully inadequate. New nanochemicals are already being used in products and remain virtually unregulated by the government. And the chemical contents of everyday products, including personal care products we and our children use, remain largely unknown. The year demonstrated an increasing awareness about this issue but without much movement to address or correct the problems. The National Nanotechnology Coordination Office released a list of research objectives in August that might someday result in a call to regulate these new substances. Bills were introduced in the Senate and House (Healthy Communities Act of 2007, S. 1068, and Coordinated Environmental Public Health Network Act of 2007, S. 2082/H.R.3643) that specifically provided money for biomonitoring projects but made little progress through the legislative process.

Q: In this information age, can we expect new information sources on the many environmental hazards we face?

A: Outlook is good

The good news is that Congress put in some promising efforts to provide the average citizen with new environmental and health information in 2007. Sen. Dianne Feinstein (D-CA) tucked a provision into the Interior appropriations bill funding a greenhouse gas inventory, and Sens. Amy Klobuchar (D-MN) and Olympia Snowe (R-ME) sponsored the National Greenhouse Gas Registry of 2007 (S.1387), which would have added greenhouse gases to the list of substances that facilities are required to report under the Toxics Release Inventory (TRI). Rep. Eliot Engel (D-NY) innovatively used the Securities and Exchange Commission in the Greenhouse Gas Accountability Act of 2007 (H.R. 2651) that required all publicly traded companies with emissions of significance to report to the EPA and include such information in their annual reports. The Raw Sewage Right-to-Know Act (H.R. 2452) required public water treatment plants to quickly notify the public and others when untreated sewage overflows into natural waters. Though none of these are likely to pass before the end of this session, they are good indications that Congress is looking at what new environmental and health information we need.

Q: Has the government set up a good system to ensure the security and safety of the nation's thousands of chemical facilities?

A: Don't count on it

The Department of Homeland Security (DHS) /node/3242 in April. But the rules contain so little public accountability and access to information that citizens would do better to ask their own Magic Eight-Balls about the security of the plant next door rather then depend on the agency to answer the question. The new regulations also fail to require consideration of inherently safer technologies by facilities reporting to DHS, so the agency won't even know the best practices to minimize risks. The program will mostly be conducted in secret, preventing the public from finding out which chemical facilities are even covered by the program, much less what facilities are lagging behind. Moreover, DHS finalized high chemical thresholds for the program, meaning that the majority of chemical facilities will not have to comply with DHS's chemical security protocols. The effort to establish stronger chemical security measures suffered a significant setback in May with the loss of a provision from the Iraq supplemental spending bill that would have prohibited DHS from preempting state law on matters of chemical security. We fully expect Congress to be asking plenty of questions on this program in 2008, but there are no indications yet on what the answers will be or if we will get a more robust chemical security program that will have enough information to actually let people know they are safe or if they should be concerned.