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Penn Law professor’s research contributes to good government recommendations highlighted in White House report

December 22, 2016

The White House recently released a report highlighting the administration’s accomplishments in open government and transparency. Among these accomplishments were recommendations developed by the Administrative Conference of the United States (ACUS) based on research conducted by Penn Law professor Cary Coglianese.

Coglianese is the Edward B. Shils Professor of Law and Professor of Political Science and the Director of the Penn Program on Regulation. Currently a public member of ACUS, he spoke with Penn Law Communications about the White House report, good government, and the future of transparency in government.

Penn Law: Can you tell us about this latest report from the White House?

Cary Coglianese: Here we have the Obama administration, in its final days, highlighting one of the president’s earliest priorities: governmental transparency. The report details the many accomplishments that the Obama administration has made with respect to open government over the last eight years. It is a sweeping list of efforts across the federal government to make the governmental process more open and accessible to the American public. The report was issued in connection with the recent meeting in Paris of the Open Government Partnership, a U.S.-led process involving 70 countries that are making commitments to make their governmental processes more transparent to the public.

PL: How did your work on regulation figure into this report?

CC: The White House report cites a set of recommendations that were issued by the Administrative Conference of the United States, or ACUS, which is a federal, good-government agency. Those recommendations, which followed directly from research I conducted for ACUS, sought to guide the use of information technology to make the federal rulemaking process more transparent to the public.

ACUS asked me to study of the accessibility of information about federal regulations on agency websites. That work, which involved a comprehensive analysis of federal regulatory agencies’ websites, resulted in a series of eight recommendations for making information more accessible about the regulatory process.

In addition to my study for ACUS, in the lead-up to President Obama’s first term, even before the 2008 election, I had been asked to convene a bipartisan task force aimed at developing still broader recommendations for improving transparency and public participation in the federal rulemaking process. A number of aspects of the Obama administration’s open government efforts followed the blueprint laid down in that task force report.

PL: What happens to these open government efforts as the Obama administration ends and the Trump administration begins?

CC: Many federal laws require openness in government. The new administration will still have to comply with the Freedom of Information Act (FOIA), for example. But most of the accomplishments contained in the latest White House report were discretionary ones, rather than ones mandated by statute. They went above and beyond the minimal requirements. For example, the recent report emphasizes numerous efforts over the last eight years for the government to release government information proactively, even before requested under FOIA and required to be released.

It’s anybody’s guess where the new administration will take these initiatives. Certainly governmental transparency did not figure prominently in President-elect Trump’s campaign. As a result, it is possible that some of the open government initiatives outlined in the recent report could either be abandoned or slowed down. If that happens, the new administration could set back the availability of government information. Some members of the public have grown concerned about that very possibility and are trying right now to capture government data in the event that some of it will no longer be available.

Taking the longer view, norms about transparency have generally shifted over the last eight years. Americans — who are, in large, distrustful of government — do expect greater availability of information about that government. As a result, even though it may be legally permissible for the new administration to abandon some of the Obama administration’s transparency initiatives, politically and practically it may be difficult to retreat too far on a commitment to meeting public expectations about openness in government. Efforts to take information off line will likely be greeted with questions about what the administration might be hiding.

PL: How does your work on regulatory transparency fit into your larger research agenda?

CC: My ACUS study on the online availability of rulemaking information follows from an initial effort I led for the National Science Foundation about fifteen years ago, along with a series of other work on information technology and regulation I’ve conducted ever since. My latest work in this vein is focusing on the incorporation of machine learning or artificial intelligence into the work of federal regulatory agencies. More broadly, my research on government transparency is just one example of the ways that the work we are doing at the Penn Program on Regulation seeks to bridge the world of scholarship and practice. I have a new book that grows out of a larger project on management challenges in achieving regulatory excellence and other recent work that analyzes claims about how regulation affects levels of employment. Overall, the research we are doing strives to bring empirical and analytical precision to policy questions that can help improve governmental processes and ultimately help government deliver better results for the public.