This public comment was transmitted to the White House Working Group on Open Government on December 20th, 2022. As the U.S. government has still not published the public comments it received since May 2022 during the delayed co-creation process for the 5th National Action Plan for Open Government for the Open Government Partnership, we are publishing our response in full, below.
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As we wrote in the U.S. Open Government email listserv, this “reasoned response” was neither prefaced nor followed by and index of the ideas and feedback the White House has received since May 2022, when the USA posted online forms on open.usa.gov. The unsigned document implicitly claims that the response and the previous summary of civil society feedback are accurate and representative summaries of the priorities and proposals we have submitted, while providing no evidence to support the assertion.
Contrary to the basic requirements of the Open Government Partnership’s co-creation standards, the US government has not “published and disseminated all written contributions (e.g., consultation input as well as responses) to the action plan development on the OGP website/webpage and via other appropriate channels.” In this document, the U.S. government has also not “provided feedback to stakeholders on how their contributions were considered during the creation of the action plan,” because our contributions are not public, as in past cycles, nor specifically acknowledged.
Moreover, as the four meetings the U.S. government held in October and November were conducted under Chatham House rules and were not recorded, there is no written record nor archived video to compare against the proposed themes and vague proposed commitments in the reasoned response, previous summary, or what was presented in the October workshops.
Without public disclosure of all proposed ideas and commitments, it is impossible to judge whether the summaries the US government are accurate or not, or if they represent the open government priorities of U.S. civil society that were collaboratively drafted over 2020, submitted to the Biden-Harris transition, and then provided again in this process. https://blueprintforaccountability.us/progress-report/#open-government
While this response refers to a draft national action plan and commitments, neither a draft national action plan nor draft commitments have been published online nor disseminated to the public and press, despite the expectation of a plan by the end of the year. It appears the White House is preparing to public a final plan over the holidays, without the opportunity for civil society to provide meaningful feedback.
This is all contrary to the principles of open government embraced by the Open Government Partnership, which the United States co-founded in 2011 and should be leading globally in practice, ambition, and implementation.
Beyond the shortcomings of the process of co-creation, the themes and this response fall far short of the ambition and impact needed to address the significant societal challenges the United States and democracies face globally. As we recommended in our response to the proposed themes,
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 – much less a final plan. 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 using the bully pulpit at the State of the Union.
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 new 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.
The administration should 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.
The administration should pursue a more collaborative, open approach to tracking implementation to both the Summit and OGP in 2023, 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. The process will be part of the product and should be an expectation for the plan.
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.
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. This committee, with both civil society and government members 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 with a multi-stakeholder forum, like Canada and the United Kingdom.
If the President believes the Summit and Partnership are worthy of national and international attention, he should detail progress to date and outline ambitious flagship commitments. The “challenges” should not only be 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 on open justice 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. Holding a rulemaking is an obligation.
- Restoring Ethics.gov, aggregating the disclosures of US government officials across the executive branch, legislative branch, and judicial branch, paired with a commitment to enact anti-corruption standards, from a judicial ethics code to the STOCK Act to the Protect Our Democracy Act.
- Making it the official policy of the United States to oppose Internet shutdowns in every nation. If access to information is a human right, and the Internet access is essential to get that information, then shutting down the Internet is a human rights violation. The USA should commit to providing safe, secure, and open access to an open Internet through the technologies not only to Americans but every human, actively exploring providing such access through satellites and mesh networking.
- A new Open Government Directive issued by President Biden that explicitly requires all federal employees to embrace the spirit and principles of open government and encourages the public to use Data.gov, Challenge.gov, USASpending.gov, CitizenScience.gov, and FOIA.gov. There is no replacement for a President committing to improve the administration of the Freedom of Information Act and improving the 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 press freedom and Internet freedom the planks of a bridge to the next century of access to information. Commit to extending the FOIA to algorithms and revive Code.gov as a repository for public code. 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.
Comment on B1.1 & B1.2
Without disclosure of public comment, we cannot assess how representative this summary is. What we can assess is that a key commitment – implementation of the Open Government Data Act, beginning with the statutorily mandated guidance of Title II of the Evidence Act – is not included in this reasoned response, despite it being a clear priority of organizations committed to open government for many years.
Following the poor example of the Trump administration, which told civil society members to choose from the President’s Management Agenda in 2018 instead of proposing new commitments, the Biden administration is proposing to implement an executive order that’s already been issued. This makes a mockery of the co–creation process, which should lead to new commitments, not shoehorn existing initiatives into a national plan.
Comment on B2.2
We welcome the U.S. government investing more in data science capacity to make open government data more understandable and useful and to use modern Internet technologies to explain it. Many agencies are already pursuing this work, notably the Treasury Department at USASpending.gov.
Conspicuously missing from this response is a commitment to issue guidance on the Open Government Data Act and oversee its implementation, including ensuring every agency has a Chief Data Officer who is wholly dedicated to improving public access, usage, and understanding of public data. This should be a top-level commitment in this theme.
We hope to see a specific commitment from the federal government to make an official accountable for every dataset listed on data.gov, with iterative feedback loops between data stewards and the press, public, and other stakeholders, including scientists and engineers.
We also hope to see a commitment to disclosure Bipartisan Infrastructure Law spending at Build.gov, as like the Recovery Act at Recovery.gov. While improving the discoverability of funding through structured data and public engagement is a worthy commitment, we hope to see the lessons learned from past efforts reflects in disclosures that minimize both the appearance and reality of corruption in procurement for the immense projects that will be rolling out across our union.
Comment on B4.2
We are glad the administration shares a vision of strengthening the FOIA process and improving public access to public information. We were therefore dismayed to hear the Director of the Office of Information Policy at the Department of Judice detail initiatives that already exist, which are now replicated in this response. This plan should publicly commit to go further, beginning with oversight of the statutory requirements enacted in 2007 and 2016 reforms to the FOIA, and continuing with support for legislative reforms in the next Congress that address the hole the Supreme Court poked in the Argus Leader case, strengthen the Office of Government Services, in line with the recommendation of the U.S. FOIA Advisory Committee, & extend the FOIA to part of the legislative branch, like the Capitol Police.
We find a response committing to implement U.S. Attorney General Garland’s memo to be wholly unsatisfactory and unresponsive to our recommendations. A “self assessment toolkit” is not responsive. Please do more:
- Advise agencies that all publication of public records online (including on 300+ FOIA reading rooms!) must be as disclosed 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.
- 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.
- Collect and publish data on which records are being purchased under the FOIA by commercial enterprises for non-oversight purposes and determine whether that data can or should be proactively disclosed.
- Fund and build dedicated, secure online services for people to gain access to immigration records and veterans records, instead of forcing them to use the FOIA.
Epilogue
Despite our plea to extend the consultation into the new year, the White House published the Fifth U.S. National Action Plan for Open Government over the holidays on December 28th, accompanied with a press release. We will be publishing a separate report regarding the weak commitments in the plan itself, which reads as a report of existing initiatives instead of new ones, and the design flaws in the opaque process that arrived at them. For now, we can only say that the United States did not “seize the moment.”
As detailed in the comment above, we encouraged the White House to publish a draft plan and seek much broader public feedback on proposed commitments in 2023 – as the U.S. government had committed to do in the 4th National Action Plan for Open Government.
Our thinking was straightforward: By investing more capacity in the co-creation process to ensure this plan would have the legitimacy derived from deep engagement with stakeholders, the US government would be modeling the kind of iterative, open process of engaging with a large, distributed modern democracy that our diplomats and development officials at the State Department and USAID encourage other nations to pursue for OGP.
That’s what the USA should have been modeling for the Summit for Democracy, which is a weaker version of the multi-stakeholder initiative (MSI) model that the USA adopted and adapted in designing OGP in 2010-2011. (Unlike OGP, the Summit has no secretariat, Independent Review Mechanism, or co-creation standards.) Based upon the lack of domestic progress and international progress by participating governments and civil society actors, we assess ongoing efforts around the Summit are likely to end after the March gathering, after two years of drawing away media attention and scarce government capacity away from OGP.
As we told the White House, publishing a final plan that included both irrelevant commitments and others that were never publicly proposed without giving Americans the opportunity to comment would be acting contrary to process. Pushing out an open government plan out over the holidays – instead of introducing it in a presidential press conference – would undermine OGP in the USA and abroad, contrary to the stated goals of the Biden-Harris administration and the hopes of the individuals and organizations who participated in OGP over the years.
Unfortunately, that’s exactly what this White House did. Unlike peer nations like Canada, there has been no ongoing followup on the plan since its publication. (Canada published consultation data for the co-creation of its 2022-2024 plan, as part of a report on what it heard from Canadians, and continues to engage its public on social media and the Web.
Governing Digital 