Private: Open Government: Can the Obama Administration Really Make a Difference?

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.

Even more important will be the serious oversight of this process by the Office of Management and Budget, the federal Chief Information Officer, the federal Chief Technology Officer, the Office of Information and Regulatory Affairs, and the White House. While President Obama has spoken eloquently about transparency and accountability, entrenched bureaucratic practices do not change with mere encouragement. There must be goals, defined expectations, and, sometimes, enforcement. Even with specific deadlines, we have often seen them shift, as with the automatic declassification deadlines that have been extended by Presidents Clinton and Bush 43. In fact, changing the paradigm for openness will be particularly challenging in the intelligence community, where the idea of proactive disclosure is at odds with significant security concerns.

Moreover, like the Bush FOIA improvement initiative, the OGD does not have any resources attached to it to assist agencies in developing their technology or getting their data out to the public. This is a critical issue that will have to be addressed by the Administration as the Open Government Plans come in for review. In addition, by doing a better job integrating meaningful records lifecycle management at the front end of any IT project, it may be possible to use current resources to help promote transparency.

One other significant concern about the OGD is that we have heard that some independent agencies that are part of the government do not necessarily view it as applicable to their records. If this is so, then it should be clarified that these open government principles apply to all federal entities. In fact, similar practices should adopted in Congress and the judiciary in order to maximize the positive role that an informed public can play. Notably, comments from the White House have indicated that there is no need for an Open Government Plan for the Executive Office of the President because they view themselves as already accomplishing what the President intended. That probably is not the best way to encourage agency participation. Leadership comes from the top and the White House should be seen to be doing the same work as all the agencies.

There is no doubt that the Open Government Directive is different than past efforts at openness. The Obama Administration appears to be making an end of the first-year effort to address a series of secrecy issues. While it is hard not to look good on secrecy issues when compared to the Bush Administration, it will still take some time before we know whether President Obama has accomplished any lasting change that will carry through beyond his term in office.

[image via the mississauga muse]

Executive Power, First Amendment