New White House Memo on Regulatory Compliance

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The White House this morning released two new documents, and one has strong implications for how important data is disclosed.

The Memo on Regulatory Compliance (not to be confused with the larger Executive Order on Regulatory Review) specifically addresses data and information about how private entities disclose information to the agencies that regulate them.  The memo describes the importance of such disclosure:

Greater disclosure of regulatory compliance information fosters fair and consistent enforcement of important regulatory obligations.  Such disclosure is a critical step in encouraging the public to hold the Government and regulated entities accountable.  Sound regulatory enforcement promotes the welfare of Americans in many ways, by increasing public safety, improving working conditions, and protecting the air we breathe and the water we drink.  Consistent regulatory enforcement also levels the playing field among regulated entities, ensuring that those that fail to comply with the law do not have an unfair advantage over their law-abiding competitors.  Greater agency disclosure of compliance and enforcement data will provide Americans with information they need to make informed decisions.  Such disclosure can lead the Government to hold itself more accountable, encouraging agencies to identify and address enforcement gaps.

To achieve those goals, the memo mandates three actions.

First, agencies have 120 days to make plans about how they’re going to post compliance data better. This is an important step from the White House, whose December 2009 Open Government Directive (itself an OMB Memo) was broader, and required plans for data, without creating meaningful priorities for which types of data should be disclosed.  After some criticism, and after considering different approaches to data prioritization, this is one strategy that’s emerging: to force agencies to focus on their core regulatory functions, and disclose that information better.

To do this well, agencies should come up with concrete plans. Plans to make more plans for forming non-binding working groups aren’t an appropriate response.  Each agency is capable of publicly auditing all of their regulatory compliance data, to create a plan that reflects the agency’s unique ability to lay out what is knowable about their work, and chart a course toward better disclosure of their core functions.

Additionally, these plans should be public, and online, on each agency’s /open page.  The memo doesn’t require it, but there’s no reason agencies should do this planning in isolation.

Second, the CTO (Aneesh Chopra) and CIO (Vivek Kundra) are directed to work with the agencies to get their information online in “in searchable form, including on centralized platforms such as data.gov, in a manner that facilitates easy access, encourages cross-agency comparisons, and engages the public in new and creative ways of using the information.”

Third, top officials are directed to “explore” better ways to share compliance information across agencies.  The vagueness of this mandate reflects the difficulty in its enactment.  The barrier to this sharing that Sunlight is most familiar with is the unique identifier problem, where entities tracked by government agencies are all assigned different unique identifiers.  The different systems government relies on to assign identity to (especially corporate) entities are largely incompatible, proprietary, and poorly designed.  Among many other problems, this needs to be addressed in order for regulatory compliance information to be more effectively shared.

Today’s Memo is a step forward for the White House, and a nuanced move toward better transparency policy.  To move beyond the first two years, the Obama Administration has to be willing to force agencies to make meaningful distinctions about their work, and publicly force them if necessary.  This memo, and the disclosures it should create, can help transform how our government undertakes its duties.

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