The White House’s “reasoned response” omitted key civil society priorities

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.

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.

Recommendations on improving implementation of the Freedom of Information Act and data transparency

Today, our director provided brief remarks in response to the White House’s request for feedback from the public about proposed federal commitments to improve public access to data. The following written recommendations are the (longer) version of that public comment, with specific tactical and strategic recommendations for improving administration of the Freedom of Information Act and the Open Government Data Act, which codified the U.S. government’s obligations to act as a good steward of public information.

  • Recognize the importance of FOIA and celebrate the civil servants who carry it out beyond an awards ceremony during Sunshine Week. Ask FOIA officers about how FOIA could be improved, with an award to incent participation.
  • Issue a draft of long-overdue guidance on Title II of Open Government Data Act, as mandated by Congress and recommended by the Chief Data Officers Council and every nonprofit that works on open governance : hand solicit comment from stakeholders before issuing a final product.
  • 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.
  • Relaunch Ethics.gov with open data of ethics disclosures across the federal government.
  • Formally endorse a bill to reform the PACER system and invite the Supreme Court to participate in the Open Government Partnership by making a commitment to provide every American with free, open access to laws and court records.
  • 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 OGP and Summit for Democracy commitments and relevant federal laws. Hold monthly interagency meetings and quarterly public forums that inform the public and press about the status commitments.
  • Re-issue a revised Open Government Directive that requires agencies to submit a plan on press freedom, disclosure, scientific and information integrity guidance. Refresh all agency open government plans and pages. Connect transparency and accountability explicitly to the administration’s national anti-corruption strategy, democracy commitments, and an explicit embrace of good governance, all as a part of a larger strategy to rebuild trust over time using participatory platforms. House this work on a rebooted WhiteHouse.gov/open linked to open.usa.gov and to the Open Government Partnership. Begin cataloging & highlighting open government activities across agencies, not just participation & collaboration on GSA websites.

Request for public feedback on improving U.S. government compliance with the Freedom of Information

In August, our director was appointed by the acting Archivist of the USA (AOTUS) to the U.S. Freedom of Information Act Advisory Committee as one of the non-governmental members who advocates for better access on behalf of the public, press, and good government watchdogs. For those unfamiliar, this federal advisory committee was established in 2014 to “foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” The past 4 terms have generated 51 recommendations, with varying impact and implementation: https://www.archives.gov/ogis/foia-advisory-committee/dashboard

The full committee will meet again this Friday, December 1, when we will hear from an expert requestor panel about complex FOIA requests and litigation and then discuss subcommittee reports.

This term, we will be increasing the focus on improved delivery of the first two elements of this committee charter: fostering dialog between the US government and the requester community, and soliciting public comments. 

In light of that, we want to make sure journalists and FOIA advocates around the United States know that the White House will host a public “engagement session on data transparency and ways to improve accessibility and utility of government data” on November 29th as part of the ongoing consultation for the next U.S. National Action Plan for Open Government. The administration it is “seeking input about how data can be more transparent, useful, and accessible” and has published a blog post at the White House requesting feedback on:

  • Strengthening access to government information through the Freedom of Information Act (FOIA).
  • Creating better feedback loops between data practitioners and federal data stewards

Folks and organizations/institutions) interested in these topics could help nudge federal policy in the right direction by sharing “new ideas for how federal agencies can improve access to public data” and offering insights about how to improve the implementation of of the FOIA experiences during this virtual call.

As there is only an hour scheduled, however, sending written comments to opengov@ostp.eop.gov may be useful. For those who feel comfortable doing so, please consider publishing your comment as a blog post or op-ed or article and emailing us a link (alex @governing.digital) or forwarding the comment you submit.

We expect all input for the next national action plan on open government will eventually be disclosed as public records, but it would be useful if FOI advocates and experts from around the country publicly highlighted t1) steps agencies could take right now, without additional legislation or an executive order2) holes in the statute and compliance that reforms and oversight could rectify.

We have many ideas for improving the statute, regulations, and compliance, but we’d love to hear from the folks who have years or decades of experience making FOI requests, accessing data, and working with agencies to do both. The federal FOIA ombuds office at the National Archives (Office of Government Information Services) has also asked how NARA and the committee can improve civic engagement and dialog around FOIA in an ongoing fashion. What should NARA, the White House Office of Management and Budget, and the Justice Department’s Office of Information Policy be doing, or doing differently? What’s missing from these recommendations? Which aren’t being implemented well, or at all?

We would be honored to share feedback from the requestor the committee in an ongoing fashion: please be as tough and unsparing as the situation warrants. Many thanks to everyone working to improve government transparency and holding our governments of, by, and for the people to account.

Open questions on open government in the USA

This coalition letter from good governance groups and individuals devoted to ethics asks the Biden administration to detail its plans for restoring government transparency and accountability, with dozens of specific questions and requests for information regarding specific commitments necessary to continue that process. The letter may be downloaded as a PDF with footnotes instead of links.

“Recommitting to the “highest standards of transparency” to revitalize the national security and foreign policy institutions of the United States is a necessary but insufficient step in rebuilding public trust in a government of, by, and for the people.

We are eager to hear more about the Biden administration’s plans for restoring transparency and accountability in the United States government and reclaiming global leadership on democracy and human rights during these first 100 days. Resetting the default to openness and good governance is critical and sets both the bar for officials and the tone from the top for the four years ahead.

We hope you will respond to our questions publicly, as soon as possible, informing both the American people and the world about how you will be approaching rebuilding public trust in our federal government, including its statements, statistics, and the scientific rigor underpinning its policies. Your vocal commitment to “truth and transparency” are welcome, but it would be useful to learn more about specific, concrete commitments in policy, programs, and personnel. “

Governing digital in 2020

Democracy depends on informed publics to function, but around the world, authoritarianism and populism are on the rise, increasingly using new technologies to censor, repress, surveil, and disinform the public.

This phenomenon is muddying the capacity of the public to be accurately informed and engage in collective action based upon shared, trustworthy facts, putting a much higher premium on the capacity of governments to connect with and serve those they govern through the dissemination of trustworthy information where and when the publics search for and discover it.

At the same time, public trust in government and institutions in general remains low, for good reasons: corporations have captured regulators and legislators. Corruption remains a huge problem in countries around the world.

In the United States, growing partisan polarization and illiberalism are exacerbating existing structural flaws in American democracy created by the deregulation of money in politics and gerrymandering.

This all adds up to a series of wicked problems, not just one, requiring systemic responses and reforms alongside targeted interventions. No single person or organization, much less project, will be sufficient to bring about the scale and scope of the measures required to heal these flaws – but that’s no reason not to stay scrubbed in and work in common cause, together.

Governing.Digital will pull together a unifying framework for a wide range of civic technology issues and then offer ways forward on each. This work will build upon the foundation of good government advocacy and entrepreneurial open technology policy the Sunlight Foundation advanced over the past decade, in particular the 2018 policy agenda that remains relevant in 2020.

Readers should expect us to focus on digital records reforms at the National Archives, digital accessibility, the implementation of the 2016 Freedom of Information Act, oversight of the Open Government Data Act, the DATA Act, U.S. participation to the Open Government Partnership, White House circulars and executive orders, and the Honest Ads Act, along with their descendants in states, cities, and other nations.

We’ll also be exploring related reforms relevant to transparency, democracy, and public information access from cities, states and around the world. In particular, we will focus on how proactive disclosures from private entities that host platforms for political speech or marketplaces improve public outcomes.

Wherever possible, we’ll ground these reforms within the context of their enactment and implementation. All laws are not created equal, nor are the code or regulators that carry them out.

As always, thank you for listening. Let’s get started.