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Obama Administration on Open Government: More than Rhetoric?

December 8, 2009

The White House today released the long awaited Open Government Directive (OGD), nearly eleven months after it was requested by President Obama in his January 21, 2009, Presidential Memorandum on Transparency. The Open Government Directive sets an ambitious schedule for agencies to accomplish a myriad of tasks designed to help make President Obama’s vision for “creating an unprecedented level of openness in Government” a reality.

To date, there have been some positive signs that the Obama Administration has been trying to shift the federal government away from the excessive secrecy that characterized the Bush 43 Administration. Many of these efforts, however, have been small steps that impact only a limited area of federal activity—although in some cases those have been important areas.  Many open government advocates, however, have been frustrated that the inauguration of President Obama did not lead to a dramatic opening up of federal agency filing cabinets (and databases).  More critically, many of the hardest secrecy issues that arose during the prior administration are still not resolved or have not been resolved favorably, from the open government perspective.

Let’s look at some of the highlights and at what this new Open Government Directive will do that is different.

The White House decision, in the face of litigation, to proactively make its visitor records public, is the type of action that is largely in control of the White House itself and that requires little buy-in from other agencies (although we have heard that the national security establishment objected and tried to hold it up). Nonetheless, it is a symbolically important step because it sets a precedent for the public’s ability to learn who is trying to influence policy at the White House. Does it mean the end of special interests? Probably not, but when combined with the lobbying and ethics policies put in place by the Administration, it at least helps make it easier to figure out who the special interests are and what they are doing. Armed with that information, citizens can let their displeasure (or pleasure) be known by voting, advocating, etc.

Similarly, the reform of procedures for invoking state secrets privilege by the Department of Justice involves more rigorous review of the decision at the Department of Justice. Those new procedures do not end the controversial practice of the government essentially unilaterally shutting down litigation about potentially genuine constitutional matters or damage inflicted by US government actions, but it does reflect an effort to be more responsible about when to wield the powerful privilege. And we know from the infighting in the Department of Justice about the government’s warrantless surveillance program, that there is occasionally dissent.

In response to these changes, the Administration has been criticized for not bringing about true change. Indeed, some decisions seemed to perpetuate the secrecy of the prior eight years, including the decision to sign legislation passed by Congress that barred the release of images of detainee abuse and the continuing effort to obtain dismissal of a number of lawsuits related to warrantless surveillance and rendition.

The Open Government Directive is an ambitious effort to go much farther and inject the important principles articulated by President Obama about transparency and accountability into the entire executive branch. It says in its introductory language:

The three principles of transparency, participation and collaboration form the cornerstone of an open government.  Transparency promotes accountability by providing the public with information about what the Government is doing.  Participation allows members of the public to contribute ideas and expertise so that their government can make policies with the benefit of information that is widely dispersed in society.  Collaboration improves the effectiveness of Government by encouraging partnerships and cooperation within the federal government, across levels of government, and between the government and private institutions.

The word “accountability” then appears later, getting equal billing alongside the three core principles of transparency, participation and collaboration. The Directive also mentions FOIA at least three times.  It reminds everyone about the President’s and Attorney General Holder’s FOIA memos. It tells agencies to proactively use technology to disseminate useful information rather than waiting for a FOIA request. It sets a goal of a 10% annual reduction in FOIA backlogs (the goal is not entirely new, but it is nice to see OMB finally taking an interest in FOIA).

Another good message about a longstanding and often ignored information policy: the directive actually tells agencies to preserve and maintain electronic information.  But, that is a serious problem and will require a lot more work.  We hope the Administration plans to put in the effort to fix the state of electronic records management in the federal agencies and in the White House.

What does the directive actually do? It sets goals and timetables for lots of activity in the open government area.  I have summarized the specific goals below.

What doesn’t it do?  It does not include any negative incentives for failure. So, if this Open Government Directive is going to truly create an “unprecedented level of openness in Government“, then the White House, the Office of Management and Budget, the Deputy Director for Management at OMB, the Federal Chief Information Officer, the Federal Chief Technology Officer, and the Administrator of the Office of Information and Regulatory Affairs had better get ready to coax, cajole, push, pull and prod the over 90 federal Executive Branch agencies to meaningfully meet the Directives goals and deadlines.

Do we think it will work? Well, we are going to take part in this experiment by actively monitoring developments and commenting on every stage of the process. We hope that members of the public and public interest groups out there do the same for the specific agencies that they care about.  If the public is going to be heard in this process, we better speak up.

Summary of the Open Government Timetable

Within 45 Days

Each agency must register three high-value data sets that have not previously been available online in a downloadable format via Data.gov.

Each agency must appoint a high-level official who is accountable for the quality and objectivity of internal controls over federal spending information and who also will participate in the agency’s senior management council.

The Deputy Director for Management at OMB, the Federal Chief Information Officer, and the Federal Chief Technology Officer will convene a working group on transparency, accountability, participation, and collaboration which will be a forum for exchanging best practices, coordination, and innovation in the use of modern technology.

Within 60 Days

Each agency must set up an Open Government Web page that takes in public feedback on data quality and priorities and eventually includes the agency’s Open Government Plans.

The Deputy Director for Management at OMB will issue a framework for the quality of federal spending information from agencies and will require plans from agencies that will be assessed to determine the need for additional guidance.

The Federal Chief Information Officer and the Federal Chief Technology Officer will establish an Open Government Dashboard which includes statistics for assessing progress.

Within 90 Days

The Deputy Director for Management at OMB will issue guidance on the use of challenges, prizes, and incentives to encourage open government.

Within 120 Days

The Deputy Director for Management at OMB will complete a strategy for federal spending transparency.

Each agency must publish an Open Government Plan based on a template attached to the Directive.

The Administrator of the Office of Information and Regulatory Policy, the Federal Chief Information Officer, and the Federal Chief Technology Officer will review OMB policies, including the Paperwork Reduction Act and privacy authorities, to determine whether there are impediments to open government and the use of technology and will issue clarifying or new guidance as necessary.

What Does This Really Mean?

It is hard to say today whether this Directive will bring about the transformation that President Obama has asked for. Aside from the enactment of the FOIA 43 years ago, however, this is the most significant effort of which I am aware to open up our government to the light of day. We’ll be watching for President Obama and agency leaders to make sure this directive is fully implemented. If it is implemented, it should result in more than a slight shift in policy, and instead set a whole new course for government.

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