What do weather disasters, new educational mandates and drilling for gas on state land have in common?

All of them can be regulated through the power of the governor’s executive order.

The power of the executive order is a hot topic at the U.S. federal level. In his 2014 State of the Union Address, President Obama touted the executive order as a means to achieve his policy objectives despite a perpetually intransigent Congress. The planned lawsuit by House Speaker John Boehner, R-Ohio, against the president partially concerns the use of presidential executive orders to delay the implementation of Obamacare provisions.

Similar to presidents, governors can also wield substantial unilateral power through their executive orders. In cases of inclement weather, state governors often use the executive order to declare states of emergency, authorizing the mobilization of the state resources to address the crisis. In response to the rollout of Common Core education standards last year by the Obama administration, several state governors issued executive orders to block the “intrusion of federal standards” into education, long a bastion of state control. In Pennsylvania, Gov. Tom Corbett, R, recently lifted a moratorium on natural gas exploration beneath the state’s parks and forests.

Governors and executive branches at the state level perform a variety of functions, including the management of state-level departments and agencies, execution of enacted state laws and administration of federal programs. Executive or administrative orders are the legal instruments by which governors conduct their duties, but the extent of the powers covered by executive order varies widely from state to state. Declarations of public emergencies, appointment of state officials and creation of executive branch commissions and agencies are often done by executive order.

Like acts and statutes enacted by state legislatures, governors’ executive orders carry the weight and enforcement power of law. Unlike state bills, however, executive orders in 38 states are not subject to any form of administrative procedure act, a law that governs the process by which regulations are proposed and enacted. Only six states subject executive orders to legislative review, and a further six have legislative review requirements for a subset of executive orders, usually those concerning agency creation. Nevertheless, executive orders in many states are issued without specified end dates, and may persist for decades after their issuing governor has left office.

All of this is to suggest that although executive orders in many states are quite powerful, and while they’re generally issued more infrequently than bills are passed, they’re rarely subject to the same filing and publication requirements as other governing documents — proposed legislation, for example. Since executive orders are a matter of public record, all states must make them accessible to the public in some form — but, as we know, accessibility per the letter of the law and substantive openness are rarely one and the same.

Opening the Executive Order

Sunlight’s Open States project currently collects state-level legislative data from all 50 states, the District of Columbia and Puerto Rico, and tracks both legislation and the voting behavior of individual legislators. Executive orders, however, are no less important or powerful than their legislative counterparts. It’s therefore very important important that all citizens have access to their governor’s executive orders, so we wanted to discover what states were doing to make executive orders available to the public.

In our preliminary evaluation, we’ve drawn upon Sunlight’s Open Data Guidelines and attempted to answer many of the same questions that Open States asked in its evaluation of legislative transparency, with a few minor changes. In particular, since the volume of legislation proposed is usually much greater than that of executive orders issued, our priorities have been making these documents available to the public in ways that are convenient, timely and easy to read.

Here’s what we considered in our preliminary evaluation of the data:

• Are executive orders available online?
• Are orders uploaded in a timely fashion?
• Is the data presented in a commonly owned format (e.g. HTML or PDF)?
• Is the text machine-processable—can you search and find text, or are they unsearchable scans?
• For what period of time are executive orders available? For the current year? Current term? Previous governor’s term? Since the beginning of time?

Here’s what we’ve found:

The Good

The vast majority of governors’ offices have taken it upon themselves to make this information available to the public in an organized manner. Forty-nine of 50 state governors post executive orders from their administration online on the website of either the governor, the Secretary of State or the state library (keep an eye out for another post soon about the only state that doesn’t). Executive orders from previous administrations are available in 43 states from either the governor’s office itself or, more commonly, from the state archive. While most states meet the basic expectation that the documents be posted online, however, there’s still a long way to go before these documents are truly open.

The Bad

While most state governors’ offices that we called claimed to post documents in less than a week, we found several states with unpublished executive orders dating back anywhere from a month (Utah) to eight months (Maine). Although many states will issue press releases for particularly urgent or newsworthy executive actions, the publicizing of all actions authorized by executive orders in a timely fashion — from appointments to the implementation of federal law — is important for allowing citizens to hold their lawmakers accountable in more-or-less real time.

Although executive orders are generally covered by public records laws, only three of the governor’s offices (Colorado, Idaho and Kentucky) that we contacted were aware of state statutes that govern how soon their orders need to be published online — if they need to be published online at all. While it’s great that many governors’ offices are thinking about proactively publishing these documents online, codifying online publication into public records law ensures that the choice of making these records accessible is not left to the discretion of the state executive branch.

The Ugly

Equally detrimental to accessibility are the data formats in which many of the documents were posted. Executive orders are available in most states as HTML-formatted text or PDFs. If you’re a human being trying to read these documents, chances are you won’t care much about the format of the document — not so if you’re a machine. Scans of physical documents that are perfectly legible to human readers are much less so to search engines. While this seems like a relatively minor technicality, the end result is that the text of these documents isn’t indexable by search engine — a problem in 17 of the states that we surveyed.

The good news is that there are several fairly easy-to-implement solutions to this problem. These include posting the text of documents to the site directly, using embedded text functions available in most PDFs or even using some form of optical character recognition software to generate machine-encoded and computer-readable text. This is why enacting minimal machine-processability standards is important: Without the ability to index the actual text of these documents, citizens will need to know exactly where to look before they start looking.

Wondering how your state stacks up? We’ve posted the data we’ve collected below — let us know about what your state’s doing well (or not so well) with its executive orders.

Rubrics

1. Machine readability
   • 1 – Data is available as HTML, CSV, TXT.
   • 0 – Data is available as PDF with optical character recognition.
   • -1 – Data is some mixture of useable formats (above) and scanned PDFs
   • -2 – Data is only available as scanned PDFs
2. Commonly-owned standards
   • 0 – Data is available in non-proprietary or open formats.
   • -1 – Data is only available in proprietary formats (e.g. DOC, XLS).
3. Permanence
   • 1 – Data is available for/archives store data for at least a decade.
   • 0 – Data is available for the current and preceding administrations.
   • -1 – Data is only available for the current administration, if at all.
4. Timeliness
   • 1 – Documents are posted within 48 hours of being issued.
   • 0 – Documents are posted within a week of being issued.
   • -1 – Documents are posted within a month of being issued.
   • -2 – Document postings are backlogged by a month or more.