Response to the proposed themes for a 5th U.S. National Action Plan on Open Government

Last week, the U.S. government posted a summary of the feedback they have heard on making government more inclusive and responsive and invited the American public to read and share these summaries, and let the White House know what we thought of them by December 9, 2022 by emailing opengov@ostp.eop.gov. The following is the response we sent today.

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Dear U.S. Open Government National Action Plan Working Group,

Thank you for this summary of the feedback you’ve received to date. The four workshops you convened this fall have featured collegial, rich discussions of the pillars of open government defined by the U.S. government in 2009: transparency, accountability, participation, and collaboration. 

The updated frame of making our government of the people more inclusive and responsive to the people is a welcome addition to these fundamental values. 

We’ve read the proposed themes you’ve shared and associated commitments carefully and offer the following reasoned response and suggestions for amendments, prefaced by some significant concerns about the co-creation process to date. 

Ending opacity by obscurity

As we have highlighted in the public meetings in November 2021, April, and May – none of which are now listed and linked on the front page of open.usa.gov – the Biden-Harris administration has not invested communications capacity in publicizing past or present U.S. commitments to the Open Government Partnership, nor restored an /open webpage to the White House website that features the many ongoing programs, policies, and platforms stewarded by civil servants across the federal government that were featured during these meetings.

The ongoing absence of press releases, tweets, press conferences, and public meetings with senior White House officials continues to cast doubt on the administration’s commitment to transparency and accountability in the future, despite what we’ve heard from you in the workshops conducted under Chatham House rules. The contrast to the Obama-Biden Administration’s public messaging is significant and will undermine the impact and influence of the federal government’s ability to rebuild public trust, particularly if the White House press corps realizes an open government consultation has been conducted without their involvement or awareness.

The void in communications from the White House Office of Public Engagement seems particularly notable, given its mission, as is the lack of briefings, releases, or fact sheets from the White House Press Secretary. 

A co-creation process in which the federal government does not attempt to engage all of the American people directly and through the press is flawed by design and limited by default, threatening to cast a shadow over the work of the dedicated officials who have re-engaged this fall. It also fails to deliver on the 8th commitment in the 4th National Action Plan.

The next stage in the co-creation process should include uploaded proposed commitments to an ideation platform, as in past cycles, not publishing a static draft action plan for comment. The American people should have the opportunity to vote on the commitments we wish to see, perhaps using a modern civic software platform like pol.is.

As the administration considers next steps for co-creating the 5th national action plan, we recommend extending the consultation past the end of 2022 and engaging the American people in co-creating commitments. 

We believe the Open Government Partnership would accept such an extension were it to be paired with an explicit commitment from the administration to go far beyond the minimum co-creation standards and improve on this record. 

In practice, this would mean planning and holding more public meetings around the country,issuing a public request for information through the press and directly from President Biden requesting feedback on these initial themes, and seeking to include commitments on transparency, accountability, participation, and collaboration from Congress and the Supreme Court. 

Such commitments might include implementing a free PACER system, a pilot for collaborative drafting of legislation and remote participation, judicial ethics standards, and open source social media platforms.

We also recommend that the administration release a progress report on the implementation of previous commitments to the Open Government Partnership and the Summit for Democracy as open data, instead of a static fact sheet, and track new commitments at Performance.gov. 

We also recommend that the administration apply a more collaborative, open approach to tracking implementation to both the Summit and OGP, with quarterly public updates and ongoing updates to a public dashboard at WH.gov/open, improving upon the models of the recommendations from the Freedom of Information Act Advisory Committee. As the falloff in tracking progress on implementation of the Federal Data Strategy from 2020 to 2021 shows, however, the White House will need to ensure there is dedicated staff capacity that’s accountable for regular updates. As that strategy was the “Flagship” commitment in the 4th National Action Plan, the lack of followthrough is particularly relevant to a better outcome.

Finally, as referenced in our recommendations to improve implementation of the Freedom of Information Act and data transparency, the President should formally create a Federal Advisory Committee for open government modeled on the President’s Council of Science and Technology (PCAST) that’s accountable for implementing the OGP and Summit for Democracy commitments and relevant federal laws. A “President’s Council for Responsive Government” would move all of this activity from the opacity of background briefings and workshops, adding the sunshine in government necessary for this process to be institutionalized. 

Add Flagship Commitments to Inspire and Delight the Public

Over a decade ago, the Obama-Biden administration launched the Open Government Partnership with 7 other nations with the default expectation that every country would have at least one flagship commitment, like Brazil’s enactment of a Freedom of Information law. That nation subsequently delivered on that commitment in time for hosting the first global open government summit in Brasilia. The USA launched “We the People,” an e-petitions platform that attracted national attention with creative responses, and resulted in formal administration statements of position on bills and even the enactment of a legislative reform. While e-petitions remained up in the Trump administration, the platform was neglected and effectively abandoned over time, as petitions that met the threshold for a response were simply ignored. 

We recommend that U.S.government propose ambitious flagship commitments that are not only responsive to the needs of the nation in 2023 but remind the American people that our government can still dream and execute on big things, as we saw with vaccines.gov and the rollout of the vaccination programs in this pandemic. These might include:

  • An Open Justice Initiative led by Vice President Kamala Harris, modeled on her groundbreaking work in California. This commitment would build on the work of the Police Data Initiative, creating an open federal database of civilian complaints regarding police officers and disciplinary records, This is referenced in the Executive Order on Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety (Executive Order 14074) but should be expanded to include specific commitments and deliverables, from passing legislation with mandatory reporting requirements that address the serious data discrepancies at the FBI to setting up a national data warehouse that enables more than 18,000 departments to upload records and validates it. 
  • An Open Beneficial Ownership database led by the Secretary of the Treasury, which seeks to make the FinCEN data collected as open and accessible to the American people, press, watchdogs, law enforcement as possible to increase its utility for anti-corruption work around the world, from Russia to China. The United Kingdom’s registry is a model here, but should be viewed as a floor, not a ceiling. Such a commitment could be explicitly tied to the upcoming second rulemaking on this database and part of the White House delivering on the intent of Congress to ban anonymous shell companies in the USA.
  • A new Open Government Directive issued by President Biden that explicitly requires all federal employees to embrace the spirit and principles of open government, from the administration of the Freedom of Information Act to the proactive disclosure of public information to the public in the open, accessible formats required by the Open Government Act to the responsive, collaborative approach to civic engagement and public information that Americans should expect from our public officials and civil servants. Make in press freedom and Internet freedom the planks of a bridge to the next century of access to information. Enshrine public access to public information as a defining priority of this administration, building on the foundations laid by generations past to erect an enduring architecture of open governance for our democracy.

Engaging the Public in the Regulatory Process

We welcome the administration’s proposal to engage the public more effectively in the regulatory process. 

In addition to the strategies we’ve heard, we recommend the administration explore using online advertising and partnerships with media and tech companies to increase awareness of opportunities to comment at the Federal Register and Regulations.gov, paired with the creation of video public service announcements and press conferences for each proposed rule. Cabinet secretaries should be held accountable for public participation metrics, from workshops to 

Broadening Access to Data to Improve Government Accountability

We welcome this theme whole-heartedly and hope the administration will be more specific about commitments that align with implementing new guidance from the Justice Department on how the Americans with Disabilities Act applies to all public accommodations online. 

We hope this administration will not only significantly increase operations of the remaining open government platforms that endure online due in no small part to statutory requirements, from FOIA.gov to Challenge.gov to Data.gov to CitizenScience.gov to USASpending.gov, but invest increasing the public profile of each of these resources, exploring the hypothesis that increased public participation, service and information delivery, and responsive government officials will rebuild public confidence and trust.

Making Government Records More Accessible to the Public

We are grateful to see the Freedom of Information Act (FOIA) included as a theme, but disappointed that the working group chose to use the meeting to give the Justice Department a platform to outline work it’s already doing, as opposed to propose new commitments, or make space for civil society to outline our recommendations to fix a broken process that is underfunded, under-resourced, and undermined by agencies fighting requests in court and taking actively hostile stances towards members of the requestor community. 

Fixing the systemic issues with the Freedom of Information Act cannot be fixed solely through technocratic nor statutory reforms; we need the administration to push for cultural change and to lead by example through proactive disclosure and proactive responsiveness. We would welcome a much more ambitious vision of reinventing FOIA, from committing to passing reforms in Congress that address the hole the Supreme Court left to outright rewriting the law, with the aim of making it the strongest freedom of information law in the world, lifting it from its middling status. We reshare the recommendations we have made previously below.

  • Advise agencies that all publication of public records online (including on 300+ FOIA reading rooms!) must be disclosed as structured data. Appoint a U.S. Chief Data Officer who is accountable for implementing the OGDA and harmonizing it with FOIA. Dedicate USDS and 18F teams to assisting FOIA officers with modernization and create an interagency working group connecting the CDO Council, CIO Council, & FOIA Officers Council.
  • Review and implement the recommendations of the U.S. FOIA Advisory Council, and then act on the findings. For instance, the federal FOIA ombuds office at the National Archives just found that dozens of agencies do not include a link to make a FOIA request on their FOIA websites; the Office of Management and Budget should issue a directive to do so immediately, and then follow up.
  • Issue a public statement that FOIAOnline.gov is sunsetting in 2023, with timelines and points of contact. Direct every affected agency to do what DHS has done to engage stakeholders and the requestor community about the transition, ensuring all affected requests are picked up, people can download records, and no one’s right to access info will be thwarted as a result. The White House, DoJ and GSA can and should adopt & adapt open source code used in New York City as an option for agencies considering migration.
  • Convene the U.S. Digital Service, 18F, and the nation’s civic tech community to work on improving FOIA.gov using the same human-centric design principles you’ve applied to service delivery elsewhere. Make sure FOIA.gov users can search for records across reading rooms, Data.gov, USASpending.gov, and other federal data repositories. Make FOIA.gov a platform with an application programming interface, with a defined schema for FOIA requests, so that requestors can check the status of FOIA requests using a default US government client or third party services. The FOIA Improvement Act of 2016 specifically directs OMB to make such improvements: please evaluate whether the 3 million dollars OIP has allocated to building “a wizard” for FOIA.gov is an effective use of taxpayer dollars that will improve administration of the FOIA for requestors. Is it being built WITH people who use that site?
  • Restore a Cross-Agency Priority goal for FOIA. Advise agencies to follow FOIA Advisory Committee recommendations and stand up a public dashboard tracking changes at a new White House.gov/open government website. Start tracking spending on FOIA and increase funding to meet the demand.
  • Direct the Department of Justice to finally roll out the “release-to-one, release-to-all” policy for FOIA that was piloted at the direction of President Obama. Hold USAG Garland and his deputies accountable for doing what the last administration refused to do. Direct the FOIA Officers Council to disclose the products of their work on FOIA.gov.

Replace “Transforming Government Service Delivery” 

As stakeholders said during the workshops, there is broad support for the administration’s work on improving service delivery and equitable data access. This is a critical focus area for restoring public trust and confidence in government by “making the damn websites work,” as GSA Administrator Robin Carnahan has aptly observed. 

As this work is already an administration priority, however, we recommend replacing it with a theme more clearly align with core transparency and accountability issues, like those outlines in our coalition’s recommendations on open government, which be found at the Blueprint for Accountability: https://blueprintforaccountability.us/progress-report/

Those actions might include an end to secret law at the Office of Legal Counsel, increasing funding for declassification, or the relaunch of Ethics.gov with aggregated ethics data from across all three branches of U.S. government, which would be an apt flagship commitment to address the public sense of rampant corruption. Specific commitments can be found at Accountability 2021: https://www.accountability2021.org/

Transforming service delivery in administration of the FOIA and proactive disclosure of open government data would be aligned with open government and administration priorities, but should rightly be grouped under the proceeding theme.

Conclusion

We are grateful for the opportunity to comment and to the administration for its interest in soliciting feedback on its work to date. We are asking for more ambitious commitments, public engagement, and the institutionalization of open government programs and policies because of our grave concern about the state of American democracy and the need to do far more. We want both this process and the outcomes for it to be meaningful and to restore our government’s leadership globally in these areas, which has suffered in recent years. Other nations have moved forward with algorithmic transparency, applied freedom of information laws to code, and established multi-stakeholder forums that have healthy, ongoing dialogues with civil society.

There is no substitute for Presidential leadership and involvement to ensure that the public and massive enterprise of the federal government understands that these processes and initiatives are a priority for them and the future of our union. We hope to see that shift in posture, stand ready to discuss all of the above concerns and proposals.

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