By Meredith Fuchs. Ms. Fuchs is the General Counsel of the National Security Archive, a private, non-governmental research institution located at George Washington University. A recent discussion on NPR's "Morning Edition" with Ms. Fuchs about the Obama Administration's transparency policies is available here.
Last week Peter Orzag, the Director of the Office of Management and Budget (OMB), issued a long awaited Open Government Directive (OGD). The OGD came nearly eleven months after it was requested by President Obama in his January 21, 2009, Presidential Memorandum on Transparency. The OGD was accompanied by a list of commitments by Cabinet Departments to make data more accessible from major federal departments. At least a couple of these already have been viewed as not being anything new or not being anything too substantial.
The Open Government Directive sets an ambitious schedule (my summary) for agencies to identify high-value data sets, create open government web pages, and issue Open Government Plans. The Department of Defense, the Department of Justice, and other agencies issued news releases about their initial efforts pursuant to the Directive. The OGD also directs a policy review to see whether laws and policies impede transparency and the use of modern technology for openness and citizen engagement. The goal of all this effort is to accomplish President Obama's promise of "creating an unprecedented level of openness in Government."
On the one hand, the OGD is clearly ambitious. By asking agencies to identify and proactively make records publicly available without waiting for a Freedom of Information Act (FOIA) request, the Directive is trying to change the paradigm for government openness.
On the other hand, unlike the FOIA, there is no enforcement mechanism. The FOIA, of course, permits citizens to freely bring legal actions to wrest records from government agencies. In fact, the FOIA even includes a fee-shifting provision to encourage private enforcement. The OGD, however, does not have either citizen recourse or official government enforcement built in. There is no private right of action, and there are no consequences for failure by agencies. We have seen in the past, such as when President Bush ordered agencies to prepare FOIA improvement plans, that some agencies will take it seriously and develop good plans for improvement. But, several agencies issued FOIA improvement plans that showed little grasp of their own problems and lacked any ambition to improve their FOIA programs.
In this regard, it will be critical for public interest organizations and members of the public to read and comment on the Open Government Plans. Many agencies are likely to launch public engagement initiatives aimed at soliciting public comment. Where these processes are taken seriously, there may be a chance to have a real impact on what comes out of agencies. In particular, agencies are required to identify high-value data sets for online publication. The definition of what is of high value is quite vague, but it seems like it should be information that the public either really wants or helps the public gain insight into the agencies' activities.