September 25, 2010 Celeste Monforton, DrPH, MPH 1Comment

Updated below (9/28/2010)

Is anybody else getting tired of hearing Obama Administration officials say “sunlight is the best disinfectant?” It was uttered again on Thursday (9/23) when the President’s regulatory czar, Cass Sunstein, was speaking at an event hosted by the Small Business Administration. His speech was loaded with all the transparency catch terms: “disclosure,” “openness,” “sunshine,” “open government,” “accountability,” blah, blah, blah. The rhetoric was annoying to read because I’d been wrestling this week with OIRA’s lack of transparency. I’ve been in the midst of trying to confirm whether representatives of the Chamber of Commerce, National Association of Manufacturers and other industry lobbyists met recently with the reg czar’s staff about a pending OSHA rule. Setting aside that these meetings are outside the normal rulemaking procedures and undermine that process, I’m frustrated hearing a lot of talk about transparency, but not seeing it.

Someone checking the OMB/OIRA website earlier this week (screenshot, 9/20/10) would think that not a single one of this extra-ordinary meetings with OIRA staff about pending OSHA rules have taken place since the GW Bush Administration. When I learned this week from two sources that meetings about a revision to OSHA’s injury log had indeed taken place, I contacted OIRA to find out why the meeting(s) were not divulged on OMB’s website. (It was GW Bush’s reg czar, John Graham, who began the practice in 2001 of disclosing on the OIRA website a few facts about these private meetings. His staff would promptly post the date, names and affiliations of participants, and the regulatory action of interest to them. If the outside parties provided a document, that was also posted on the OIRA site.) I heard back two days later from a helpful OMB public affairs officer.

She confirmed that representatives from the Chamber of Commerce and other business groups met with OIRA staff to discuss the pending OSHA rule on revisions to its injury log; another meeting was requested and held with individuals from the AFL-CIO. She indicated that information about such meetings are posted on the OIRA website, “though there is sometimes a brief delay.” She added that the OMB/OIRA website would be updated the next day to reflect two meetings held about the pending OSHA rule.

My mini-obsession with gauging OMB/OIRA’s transparency stems from a time, not so long ago, when the public was left in the dark about OIRA’s activities and political influence. (Today, we’re not in the dark, but only have a dim flashlight.) Rules designed to protect public health, safety or the environment would be sent to OIRA for review by individuals who had a fraction of the technical knowledge compared to the agency experts who developed the rule. Our colleagues at the Center for Progressive Reform (CPR) characterize OIRA as a choke point for federal regulations. Not only is OIRA staff second-guessing the decisions of agencies that have been given congressional authority to propose regulations, but also inserting themselves in a process in which they can’t possibly digest—as the agency experts have to do—the thousands of pages of technical evidence and public comments. As a result, OIRA’s “reviews” were influenced by regulated parties (who’d offer their “expertise” on the topic) during these secret meetings.*

My question about the extra-ordinary meetings with OIRA staff on the pending OSHA rule was answered, but it was still not made public. I wanted to see the info posted on OIRA’s “Communications with outside parties” page. The next morning, I was eager to check the OIRA site to see the disclosures about these meetings. Regrettably, reg czar Sunstein still has some work to do on the transparency front.

Only one of the two meeting notices appears on the OIRA website, (screenshot, Sept 24) and as of 9/25 at 2:30 pm, this is still the only notice posted. Besides that, I was baffled to see that OIRA’s meeting with the business lobbyists occurred more than two months ago. Two months is hardly a “brief delay” in disclosing to the public these meetings. Although I was no fan of the GW Bush Administration, when his regulatory czar John Graham was running OIRA, he was a stickler for posting within 72 hours this disclosures. I’d expect Obama’s OIRA to be at least as transparent as GW Bush’s.

At the conclusion of Mr. Sunstein’s remarks at the Small Business Administration event, he said:

“Open government is animated by three central goals: using sunlight as a disinfectant, obtaining access to dispersed information, and providing people with information that they can readily find and use.”

He’s got some work to do to get his own house in order.

*See, for example, Professor Thomas O. McGarity’s American University Law Review article, Winter 1987; and congressional hearings in the 1980’s attempting to examine the influence of OIRA, but difficult to do under claims of interagency deliberations.

Update (9/28/2010): OIRA’s website now lists two meetings between OIRA staff and outside parties about OSHA’s pending rule to modify its injury log. The first meeting occurred on July 21 and was disclosed on the OIRA website on Sept 24; the second meeting took place on August 2 and was disclosed on September 27.)

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