Open the Government: What You Can Do Now

Open the Government

There is obviously a lot of agreement—across party lines—about the need for a more open government. The new rules for the 112^th Congress that were advanced by the new majority in the House include many critical first steps towards opening the work of Congress to the American people. POGO was pleased to see the 72-hour rule for posting legislation online (one of our 2010 recommendations), as well as measures to increase transparency in committee proceedings. But we hope the progress won’t end with the rules for the House.

A number of openness measures were left undone at the end of the last Congress, including improving the Freedom of Information Act (FOIA). FOIA has been a cornerstone for improving our democracy since it was enacted. However, it does not always work as intended, and agencies don’t have enough funding to properly respond to FOIA requests. In addition, POGO is concerned about the proliferation of unnecessary statutory exemptions to FOIA slipped into all kinds of legislation.

POGO is also concerned that the backlash from the WikiLeaks disclosures might increase government secrecy and undermine the public’s right to know. Certainly there are important policy questions to consider, but the government should not move to further restrict speech and legal disclosures of wrongdoing. The consequence of WikiLeaks cannot be silence and fear under the guise of protecting information.

POGO Recommendations:

• Put Reports to Congress Online: Congress should make all reports it requests from the administration or the Congressional Research Service publicly available on a central website. The Access to Congressionally Mandated Reports Act (H.R. 6026), introduced last year by Representative Steve Driehaus (D-OH), is a commonsense reform that could address this issue.
• Improve and Modernize the Freedom of Information Act (FOIA): Ultimately all public information should be affirmatively disclosed and immediately available to the public online in both open-source and original context in a searchable, sortable, and downloadable format. Hearings should be held to consider the concept, such as the approach proposed in the Public Online Information Act of last Congress. But Congress should immediately pass the Faster FOIA Act; a bipartisan bill introduced last Congress by Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) to create a board to examine ways to improve FOIA. Congress should review the overuse of FOIA exemptions, and implement a procedure to allow for adequate examination of statutory exemptions in proposed legislation by the appropriate committees of jurisdiction. Also, more funding for FOIA should be mandated, perhaps as a set percentage of budgets or as a formula based on the volume and types of requests.
• Support the New Open Government Infrastructure: Progress is being made in transforming the culture and practices of agencies through the Open Government Directive. Congress should help support, not undermine, these efforts by ensuring agencies have adequate resources to fulfill their FOIA obligations and the Obama administration’s mandate for more transparency, collaboration, and participation.

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We're asking you to join OpenTheGovernment.org by adding your name to the Statement of Values. We're inviting both organizations and individuals to sign.To add your organization or name, please email us!

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Statement of Values

To protect the safety and well-being of our families, homes, and communities; to hold our government accountable; and to defend the freedoms upon which our democracy depends; we, the undersigned individuals and organizations, believe the public has a right to information held by our government.

The American way of life demands that government operate in the open to be responsive to the public, to foster trust and confidence in government, and to encourage public participation in civic and government institutions.

The public's right to know promotes equal and equitable access to government, encourages integrity in official conduct, and prevents undisclosed and undue influence from special interests.

OpenTheGovernment.org seeks to advance the public's right to know and to reduce secrecy in government.

December 8, 2009

M10-06

MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

FROM: Peter R. Orszag, Director

SUBJECT: Open Government Directive

In the Memorandum on Transparency and Open Government, issued on January 21, 2009, the President instructed the Director of the Office of Management and Budget (OMB) to issue an Open Government Directive. Responding to that instruction, this memorandum is intended to direct executive departments and agencies to take specific actions to implement the principles of transparency, participation, and collaboration set forth in the President’s Memorandum. This Directive was informed by recommendations from the Federal Chief Technology Officer, who solicited public comment through the White House Open Government Initiative.

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.

This Open Government Directive establishes deadlines for action. But because of the presumption of openness that the President has endorsed, agencies are encouraged to advance their open government initiatives well ahead of those deadlines. In addition to the steps delineated in this memorandum, Attorney General Eric Holder earlier this year issued new guidelines¹ for agencies with regard to the Freedom of Information Act (FOIA). With those guidelines, the Attorney General reinforced the principle that openness is the Federal Government’s default position for FOIA issues.

This memorandum requires executive departments and agencies to take the following steps toward the goal of creating a more open government:

1. Publish Government Information Online
   To increase accountability, promote informed participation by the public, and create economic opportunity, each agency shall take prompt steps to expand access to information by making it available online in open formats.² With respect to information, the presumption shall be in favor of openness (to the extent permitted by law and subject to valid privacy, confidentiality, security, or other restrictions).
   1. Agencies shall respect the presumption of openness by publishing information online (in addition to any other planned or mandated publication methods) and by preserving and maintaining electronic information, consistent with the Federal Records Act and other applicable law and policy. Timely publication of information is an essential component of transparency. Delays should not be viewed as an inevitable and insurmountable consequence of high demand.

   2. To the extent practicable and subject to valid restrictions, agencies should publish information online in an open format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. An open format is one that is platform independent, machine readable, and made available to the public without restrictions that would impede the re-use of that information.
      
   3. To the extent practical and subject to valid restrictions, agencies should proactively use modern technology to disseminate useful information, rather than waiting for specific requests under FOIA.
      
   4. Within 45 days, each agency shall identify and publish online in an open format at least three high-value data sets (see attachment section 3.a.i) and register those data sets via Data.gov. These must be data sets not previously available online or in a downloadable format.

   5. Within 60 days, each agency shall create an Open Government Webpage located at http://www.[agency].gov/open to serve as the gateway for agency activities related to the Open Government Directive and shall maintain and update that webpage in a timely fashion.
      
   6. Each Open Government Webpage shall incorporate a mechanism for the public to:
      
      1. Give feedback on and assessment of the quality of published information;
         
      2. Provide input about which information to prioritize for publication; and
         
      3. Provide input on the agency’s Open Government Plan (see 3.a.).
         
   7. Each agency shall respond to public input received on its Open Government Webpage on a regular basis.
      
   8. Each agency shall publish its annual Freedom of Information Act Report in an open format on its Open Government Webpage in addition to any other planned dissemination methods.
      
   9. Each agency with a significant pending backlog of outstanding Freedom of Information requests shall take steps to reduce any such backlog by ten percent each year.
      
   10. Each agency shall comply with guidance on implementing specific Presidential open government initiatives, such as Data.gov, eRulemaking, IT Dashboard, Recovery.gov, and USAspending.gov.
       
2. Improve the Quality of Government Information
   To improve the quality of government information available to the public, senior leaders should make certain that the information conforms to OMB guidance on information quality³ and that adequate systems and processes are in place within the agencies to promote such conformity.
   1. Within 45 days, each agency, in consultation with OMB, shall designate a high-level senior official to be accountable for the quality and objectivity⁴ of, and internal controls over, the Federal spending information publicly disseminated through such public venues as USAspending.gov or other similar websites. The official shall participate in the agency’s Senior Management Council, or similar governance structure, for the agency-wide internal control assessment pursuant to the Federal Managers’ Financial Integrity Act.⁵
      
   2. Within 60 days, the Deputy Director for Management at OMB will issue, through separate guidance or as part of any planned comprehensive management guidance, a framework for the quality of Federal spending information publicly disseminated through such public venues as USAspending.gov or other similar websites. The framework shall require agencies to submit plans with details of the internal controls implemented over information quality, including system and process changes, and the integration of these controls within the agency’s existing infrastructure. An assessment will later be made as to whether additional guidance on implementing OMB guidance on information quality is necessary to cover other types of government information disseminated to the public.
      
   3. Within 120 days, the Deputy Director for Management at OMB will issue, through separate guidance or as part of any planned comprehensive management guidance, a longer-term comprehensive strategy for Federal spending transparency, including the Federal Funding Accountability Transparency Act and the American Reinvestment and Recovery Act. This guidance will identify the method for agencies to report quarterly on their progress toward improving their information quality.
      
3. Create and Institutionalize a Culture of Open Government
   To create an unprecedented and sustained level of openness and accountability in every agency, senior leaders should strive to incorporate the values of transparency, participation, and collaboration into the ongoing work of their agency. Achieving a more open government will require the various professional disciplines within the Government – such as policy, legal, procurement, finance, and technology operations – to work together to define and to develop open government solutions. Integration of various disciplines facilitates organization-wide and lasting change in the way that Government works.
   1. Within 120 days, each agency shall develop and publish on its Open Government Webpage an Open Government Plan that will describe how it will improve transparency and integrate public participation and collaboration into its activities. Additional details on the required content of this plan are attached. Each agency’s plan shall be updated every two years.
      
   2. Within 60 days, the Federal Chief Information Officer and the Federal Chief Technology Officer shall create an Open Government Dashboard on www.whitehouse.gov/open. The Open Government Dashboard will make available each agency’s Open Government Plan, together with aggregate statistics and visualizations designed to provide an assessment of the state of open government in the Executive Branch and progress over time toward meeting the deadlines for action outlined in this Directive.
      
   3. Within 45 days, the Deputy Director for Management at OMB, the Federal Chief Information Officer, and the Federal Chief Technology Officer will establish a working group that focuses on transparency, accountability, participation, and collaboration within the Federal Government. This group, with senior level representation from program and management offices throughout the Government, will serve several critical functions, including:
      
      1. Providing a forum to share best practices on innovative ideas to promote transparency, including system and process solutions for information collection, aggregation, validation, and dissemination;
         
      2. Coordinating efforts to implement existing mandates for Federal spending transparency, including the Federal Funding Accountability Transparency Act and the American Reinvestment and Recovery Act; and
         
      3. Providing a forum to share best practices on innovative ideas to promote participation and collaboration, including how to experiment with new technologies, take advantage of the expertise and insight of people both inside and outside the Federal Government, and form high-impact collaborations with researchers, the private sector, and civil society.
         
   4. Within 90 days, the Deputy Director for Management at OMB will issue, through separate guidance or as part of any planned comprehensive management guidance, a framework for how agencies can use challenges, prizes, and other incentive-backed strategies to find innovative or cost-effective solutions to improving open government.
      
4. Create an Enabling Policy Framework for Open Government
   Emerging technologies open new forms of communication between a government and the people. It is important that policies evolve to realize the potential of technology for open government.
   1. Within 120 days, the Administrator of the Office of Information and Regulatory Affairs (OIRA), in consultation with the Federal Chief Information Officer and the Federal Chief Technology Officer, will review existing OMB policies, such as Paperwork Reduction Act guidance and privacy guidance, to identify impediments to open government and to the use of new technologies and, where necessary, issue clarifying guidance and/or propose revisions to such policies, to promote greater openness in government.
      

Nothing in this Directive shall be construed to supersede existing requirements for review and clearance of pre-decisional information by the Director of the Office of Management and Budget relating to legislative, budgetary, administrative, and regulatory materials. Moreover, nothing in this Directive shall be construed to suggest that the presumption of openness precludes the legitimate protection of information whose release would threaten national security, invade personal privacy, breach confidentiality, or damage other genuinely compelling interests.

If you have any questions regarding this memorandum, please direct them to opengov@omb.eop.gov or call Nicholas Fraser, Information Policy Branch, Office of Information and Regulatory Affairs, Office of Management and Budget at (202) 395-3785

Attachment - Open Government Plan

1. Formulating the Plan: Your agency’s Open Government Plan is the public roadmap that details how your agency will incorporate the principles of the President’s January 21, 2009, Memorandum on Transparency and Open Government into the core mission objectives of your agency. The Plan should reflect the input of (a) senior policy, legal, and technology leadership in your agency and (b) the general public and open government experts. It should detail the specific actions that your agency will undertake and the timeline on which it will do so.
   
2. Publishing the Plan: Consistent with the deadlines set forth in this Directive, the Plan should be published online on the agency’s Open Government Webpage in an open format that enables the public to download, analyze, and visualize any information and data in the Plan.
   
3. Components of the Plan:
   
   1. Transparency: Your agency’s Open Government Plan should explain in detail how your agency will improve transparency. It should describe steps the agency will take to conduct its work more openly and publish its information online, including any proposed changes to internal management and administrative policies to improve transparency. Specifically, as part of your Plan to enhance information dissemination, your agency should describe how it is currently meeting its legal information dissemination obligations,⁶ and how it plans to improve its existing information dissemination practices by providing:
      
      1. A strategic action plan for transparency that (1) inventories agency high-value information currently available for download; (2) fosters the public’s use of this information to increase public knowledge and promote public scrutiny of agency services; and (3) identifies high value information not yet available and establishes a reasonable timeline for publication online in open formats with specific target dates. High-value information is information that can be used to increase agency accountability and responsiveness; improve public knowledge of the agency and its operations; further the core mission of the agency; create economic opportunity; or respond to need and demand as identified through public consultation.
         
      2. In cases where the agency provides public information maintained in electronic format, a plan for timely publication of the underlying data. This underlying data should be in an open format and as granular as possible, consistent with statutory responsibilities and subject to valid privacy, confidentiality, security, or other restrictions. Your agency should also identify key audiences for its information and their needs, and endeavor to publish high-value information for each of those audiences in the most accessible forms and formats. In particular, information created or commissioned by the Government for educational use by teachers or students and made available online should clearly demarcate the public’s right to use, modify, and distribute the information.
         
      3. Details as to how your agency is complying with transparency initiative guidance such as Data.gov, eRulemaking, IT Dashboard, Recovery.gov, and USAspending.gov. Where gaps exist, the agency should detail the steps the agency is taking and the timing to meet the requirements for each initiative.
         
      4. Details of proposed actions to be taken, with clear milestones, to inform the public of significant actions and business of your agency, such as through agency public meetings, briefings, press conferences on the Internet, and periodic national town hall meetings.
         
      5. A link to a publicly available website that shows how your agency is meeting its existing records management requirements.⁷ These requirements serve as the foundation for your agency’s records management program, which includes such activities as identifying and scheduling all electronic records,⁸ and ensuring the timely transfer of all permanently valuable records to the National Archives.
         
      6. A link to a website that includes (1) a description of your staffing, organizational structure, and process for analyzing and responding to FOIA requests;(2) an assessment of your agency’s capacity to analyze, coordinate, and respond to such requests in a timely manner, together with proposed changes, technological resources, or reforms that your agency determines are needed to strengthen your response processes; and (3) if your agency has a significant backlog, milestones that detail how your agency will reduce its pending backlog of outstanding FOIA requests by at least ten percent each year. Providing prompt responses to FOIA requests keeps the public apprised of specific informational matters they seek.
         
      7. A description or link to a webpage that describes your staffing, organizational structure, and process for analyzing and responding to Congressional requests for information.
         
      8. A link to a publicly available webpage where the public can learn about your agency’s declassification programs, learn how to access declassified materials, and provide input about what types of information should be prioritized for declassification, as appropriate. Declassification of government information that no longer needs protection, in accordance with established procedures, is essential to the free flow of information.⁹
         
   2. Participation: To create more informed and effective policies, the Federal Government should promote opportunities for the public to participate throughout the decision-making process. Your agency’s Open Government Plan should explain in detail how your agency will improve participation, including steps your agency will take to revise its current practices to increase opportunities for public participation in and feedback on the agency’s core mission activities. The specific details should include proposed changes to internal management and administrative policies to improve participation
      
      1. The Plan should include descriptions of and links to appropriate websites where the public can engage in existing participatory processes of your agency.
         
      2. The Plan should include proposals for new feedback mechanisms, including innovative tools and practices that create new and easier methods for public engagement.
         
   3. Collaboration: Your agency’s Open Government Plan should explain in detail how your agency will improve collaboration, including steps the agency will take to revise its current practices to further cooperation with other Federal and non-Federal governmental agencies, the public, and non-profit and private entities in fulfilling the agency’s core mission activities. The specific details should include proposed changes to internal management and administrative policies to improve collaboration.
      
      1. The Plan should include proposals to use technology platforms to improve collaboration among people within and outside your agency.
         
      2. The Plan should include descriptions of and links to appropriate websites where the public can learn about existing collaboration efforts of your agency.
         
      3. The Plan should include innovative methods, such as prizes and competitions, to obtain ideas from and to increase collaboration with those in the private sector, non-profit, and academic communities.
         
   4. Flagship Initiative: Each agency’s Open Government Plan should describe at least one specific, new transparency, participation, or collaboration initiative that your agency is currently implementing (or that will be implemented before the next update of the Open Government Plan). That description should include:
      
      1. An overview of the initiative, how it addresses one or more of the three openness principles, and how it aims to improve agency operations;
         
      2. An explanation of how your agency engages or plans to engage the public and maintain dialogue with interested parties who could contribute innovative ideas to the initiative;
         
      3. If appropriate, identification of any partners external to your agency with whom you directly collaborate on the initiative;
         
      4. An account of how your agency plans to measure improved transparency, participation, and/or collaboration through this initiative; and
         
      5. An explanation of the steps your agency is taking to make the initiative sustainable and allow for continued improvement.
         
   5. Public and Agency Involvement: Your agency’s Open Government Plan should include, but not be limited to, the requirements set forth in this attachment. Extensive public and employee engagement should take place during the formation of this plan, which should lead to the incorporation of relevant and useful ideas developed in that dialogue. Public engagement should continue to be part of your agency’s periodic review and modification of its plan. Your agency should respond to public feedback on a regular basis.

FOOTNOTES

1. http://www.usdoj.gov/ag/foia-memo-march2009.pdf

2. The Federal Government has defined information in OMB Circular A-130, “Management of Federal Information Resources,” as any communication or representation of knowledge such as facts, data, or opinions presented in any medium or format.

3. Information Quality Act, Pub. L. No. 106-554, section 515; see also, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (67 FR 8452) and your agency’s Information Quality Act guidelines.

4. The Federal Government has defined quality and objectivity in, “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies” (67 FR 8452). Quality is “…the encompassing term, of which ‘utility,’ ‘objectivity,’ and ‘integrity’ are the constituents.” “‘Objectivity’ focuses on whether the disseminated information is being presented in an accurate, clear, complete, and unbiased manner, and as a matter of substance, is accurate, reliable, and unbiased.”

5. The implementing guidance for the Federal Managers’ Financial Integrity Act can be found in OMB Circular A-123, “Management’s Responsibility for Internal Control.”

6. Paperwork Reduction Act, Pub L. No. 104-13, section 3506(d).

7. 36 CFR Subchapter B – Records Management.

8. E-Government Act of 2002, Pub L. No. 107-347, section 207(e).

9. Executive Order 12958, Classified National Security Information.