#OpenGov National Action Plan Recommendations

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Photo credit: NASA Goddard Space Flight Center

Starting in 2011 and every two years afterward, the White House has drawn up an open government national action plan that is intended to contain specific, measurable open government commitments. The planning process is an outgrowth of the administration’s open government initiative, which kicked off in 2009 when agencies were first required to create open government plans, but takes place on an international scale. More than 65 countries are creating plans as part of the open government partnership.

Right now, the administration is collecting recommendations for the 2015 plan. We at Demand Progress have submitted recommendations on the publicly-available hackpad pages and are publishing them here, too.

The recommendations include:

Access to Information

  • Create a proactive disclosure playbook, which provides guidance to agencies on how to identify datasets and other information ready for immediate online publication.
  • Follow through on the commitment to create a standard set of agency regulations governing the FOIA process.
  • Improve public disclosure of agency reports to Congress.
  • Examine how Section 508 of the Rehabilitation Act often impedes online publication of FOIA requests.

Lobbying and Influence

  • Use modern methods to collect and publish data about foreign lobbyists.
  • Significantly improve disclosure around lobbying efforts aimed at OIRA, which oversees major agency rulemakings.

Financial Transparency

  • Public agency Congressional Budget Justifications, which describe agency plans in plain language at a high level of detail, on the White House’s budget page in modern formats.
  • Improve disclosure of funding information for the Justice Department’s Office of Information Policy, which coordinates FOIA policy.
  • Gather better data on which FOIA fees are collected.

Rule of Law

  • Proactive disclosure of more opinions by the Justice Department’s Office of Legal Counsel, which often are de facto law for agencies.

Government Operations

  • Create a machine-readable organization chart for the federal government.
  • Improve how the government creates and collects data through forms.
  • Provide better information on USAJobs, the federal employment website, including greater detail about telework and the actual employment location.
  • Create a free alternative to DUNs.

Access to Information

Public Disclosure Playbook — Issue Guidelines on Proactive Disclosure

Just as OMB created a public participation playbook, it should create a public disclosure playbook containing recommendations on processes agencies should follow to determine how to better proactive disclosure information. Agencies should be consulted on setting up the process. To help prioritize, agencies should look at requests made through the Freedom of Information Act, via other request-based systems (i.e., specialized forms for a particular dataset or document), and information regularly disclosed by public affairs and congressional relations offices.

Categories of information to consider for proactive release include: commercial (business-related), current events (relevant to journalists), ethics (relevant to government watchdogs, such as lobbying, ethics waivers, etc.), agency operations, and datasets (paper versions are disclosed to the public but the underlying dataset must be FOIA’d). More detailed recommendations are available here.

Better Disclosure of Agency Reports to Congress

Federal agencies are required to provide thousands of reports to Congress. Many of those reports are required to be published online; many other are available through FOIA. However, there is no central location for these reports — whether by agency or across the government. Each agency should have a dedicated webpage where all reports are published chronologically in a searchable, sortable, downloadable format. In addition. OMB should gather all executive branch reports and publish them on one central website — ideally the White House budget page. This will facilitate information discovery about executive branch activities, encourage the sharing of best practices, aid the creation of dashboards, and lead to a reduction in redundant reports.

Unified FOIA Regulations

In the Second National Action Plan, the United States committed to developing common FOIA regulations and practices for federal agencies. While some initial work was done last year, the Justice Department-led effort of creating a set of common FOIA regulations and practices appears to have stalled. A coalition of organizations released draft recommendations on what those regulations should look like. DOJ’s Office of Information Policy should restart the process and issue the common regulations.

FOIA and Section 508 of the Rehabilitation Act

There is significant confusion around the extent to which Section 508 of the Rehabilitation Act prohibits agencies from posting information online. A memorandum or other document that details how the law is intended to work should be released to the public. In addition, DOJ should investigate the extent to which Section 508 is preventing the online publication of documents, what steps are necessary to remove roadblocks, and how agencies may collaborate with the public to meet the needs of full disclosure as well as the legal requirements.

Lobbying and Influence

Modernize Foreign Agents Registration Act Data Collections and Reporting

During the campaign, candidate Obama pledged to “create a centralized Internet database of lobbying reports … in a searchable, sortable, downloadable format.” While persons who lobby on behalf of domestic entities have their information published in this way, reporting practices for lobbyists for foreign entities have not been similarly modernized. The FARA database still permits registrants to submit paper documents and it publishes those documents as PDFs. This is in tension with the President’s call for transparency and obscures the useful information contained in the reports. Transparency advocates spend an inordinate amount of effort trying to transform these paper files into a searchable, sortable, downloadable database.

As part of its third Open Government Plan, the Department of Justice committed “to review the FARA website and electronic filing system, while soliciting reasonable and concrete suggestions and feedback from the public, and will work to make feasible and appropriate modifications to the database. Throughout this process, the Department will specifically investigate collecting and publishing registration information as structured data in a machine-readable format.”

It is time to require collection and publication of registration information as structured data. The Department of Justice should require all filings be made in an electronic format where the information can easily flow into a machine-processable digital format. In turn, that information should be released to the public in bulk as structured data so that the data it contains may be searched and sorted. To the extent the Justice Department has already transformed the information contained in the filings into an electronic database, that information should be published as well. Until filings are required in electronic formats, the Justice Department should publish data from all future FARA filings in bulk in a searchable, sortable, downloadable format. (We know it is possible.)

OIRA Lobbying Transparency

OIRA plays a central role in reviewing regulations. Executive Order 12866 and Disclosure Memo-B (2001) instantiate requirements to show how OIRA has affected a rulemaking and how OIRA has been lobbied by those seeking to alter the course of its deliberations. Multiple GAO and CRS reports, however, indicate that OIRA has not fully complied with its transparency requirements.

We believe that OMB should address the following concerns raised in GAO reports by:

  • Defining the transparency requirements applicable to the agencies and OIRA in Executive Order 12866 in such a way that they include not only the formal review period, but also the informal review period when OIRA says it can have its most important impact on agencies’ rules.
  • Reexamining OIRA’s current policy that only documents exchanged by OIRA branch chiefs and above need to be disclosed because most of the documents that are exchanged while rules are under review at OIRA are exchanged between agency staff and OIRA desk officers.
  • Establishing procedures whereby either OIRA or the agencies disclose the reason why rules are withdrawn from OIRA review.
  • Defining the types of “substantive” changes during the OIRA review process that agencies should disclose as including not only changes made to the regulatory text but also other, non-editorial changes that could ultimately affect the rules’ application (for example, explanations supporting the choice of one alternative over another and solicitations of comments on the estimated benefits and costs of regulatory options).
  • Instructing agencies to put information about changes made in a rule after submission for OIRA’s review and those made at OIRA’s suggestion or recommendation in the agencies’ public rulemaking dockets, and to do so within a reasonable period after the rules have been published.
  • Encouraging agencies to use “best practice” methods of documentation that clearly describe those changes.

We welcome OIRA’s recent effort to electronically publish information about lobbying activities. We hope OIRA will move to make this information available in bulk, or at a minimum, through an API.

We also agree with some recommendations made in a Center for Progressive Reform report, issued after reviewing all OIRA meetings between October 2001 and June 2011. In particular:

  • That a rule proposed by an agency, both prior and after OIRA review, should be publicly posted and in such a format as to permit a determination of what has changed.
  • If OIRA asks for a 30-day extension, its request and the agency head’s approval should be in writing and made public as soon as they are released.
  • When OIRA examines non-economically significant rules, it should explain in writing how the proposal fits under the exceptions set forth in EO 12,866 and post that information online.

Financial Transparency

Congressional Budget Justifications

Every year each agency releases a congressional budget justification. This contains useful information about how the agency intends to make use of its funding. Under OMB Circular A-11 22.6(c), each agency is required to make its justification available to the public (including posted on the Internet) within two weeks after transmittal to Congress.

All these budget justifications should be centrally housed on OMB’s website along with all the other budget materials. It is often difficult to find agency congressional justifications on their websites. Moreover, many people are unaware of the existence of the justifications in the first place. Even GPO, apparently, is unaware of the justifications (see this), as it does not gather them along with its publication of other budget materials.

Budget justifications should be published in a format in addition to PDF, such as TXT or DOC. PDF format makes it virtually impossible for computers to make use of the underlying information. For example, if you wanted to compare this year’s justification against last year’s by tracking the changes, you would be unable to do so when dealing with a PDF. OMB already publishes data in alternative formats to facilitate public use (specifically XML and CSV), and it makes sense to publish text in a format that can be analyzed as well.

FOIA Spending at DOJ

The Office of Information Policy at the Department of Justice responsible for coordinating government-wide FOIA policy as well as addressing DOJ-specific FOIA matters. Unfortunately, it is not possible to know how much money (and resources) OIP is putting towards its government-wide efforts versus internal-facing efforts. In each Congressional Budget Justification, OIP should report the amount of money spent processing FOIA requests for the seven senior management offices within DOJ; the amount of money spent on adjudicating administrative appeals for all units in DOJ; and the amount spent on FOIA policy and compliance.

Tracking FOIA Fees

As part of its annual report on FOIA, the Justice Department’s Office of Information Policy should request agencies report on the amount of FOIA fees collected broken down by the basis on which the fees are collected.

Rule of Law

Office of Legal Counsel Opinions

In an Executive Order, President Obama wrote that “agencies should take affirmative steps to make information available to the public” and should “adopt a presumption in favor of disclosure.” His first nominee to head the Office of Legal Counsel, Dawn Johnsen, joined by many others who served in the Justice Department, called on OLC to “publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure.” The Office itself, in its “best practices” memo, declares that “the Office operates under the presumption that it should make its significant opinions fully and promptly available to the public,” including considering “disclosing documents even if they technically fall within the scope of a FOIA exemption.” We have found, however, that many reports are not available to the public.

The Department of Justice should update its policy to require disclosure of all opinions by default, except in certain limited circumstances. A determination to withhold publication should be made at the highest levels within the DOJ and be based upon clearly articulated rules. To the extent a document is withheld in full or in substantial part, a detailed unclassified summary of the opinion should be made available to the public in a timely way that conveys the essence of the opinion. In addition, the OLC should publish and contemporaneously update a complete list of all final opinions, indicating the title, author, subject, and date issued.

Government Operations

Machine Readable Organization Chart

The structure of the government is confusing and complex. While the “United States Government Manual” provides information about the structure of government, there is no machine readable organizational chart that allows one to uniquely identify programs and offices within the government. This information, however, would be useful to those who wish to track the functions of government programmatically.

Form Reform

OMB’s Office of Information and Regulatory Affairs (OIRA) is charged with enforcing the Paperwork Reduction Act, including how agencies promulgate forms. Current agency practice permits and often encourages the use of paper-forms to gather and channel requests for information. This leads to re-keying of data, significant data quality issues, inadvertent disclosure of private information, and significant delays in public access to data. OMB should lead an effort to reform how the government uses forms.

Forms should be electronic and allow for the easy flow of data into databases. (This is consonant with OMB’s new data policy that directs that information should be collected electronically by default.) Information should be validated upon input and automatically checked for errors. To the maximum extent possible, unique entity identifiers should be employed, particularly those that are consistent across databases. Forced-choice mechanisms and limited data fields should be employed to restrict the kinds of information that can be input. Data should be automatically segregated as to what is and is not disclosable, so that no further review is necessary for data tagged as disclosable.

In addition, OMB should employ multiple techniques to improve the quality of information submitted. Extensive user testing (including A/B testing) should be performed and monitored on an ongoing basis to ensure forms are as easy to understand and complete as possible. Behavioral economics should be employed to maximize the effect of data collection, including through the development of model forms. Furthermore, to the extent possible, data should be pre-populated to reduce the amount of time required to enter information.

Federal Jobs: Telework and Location Information

The federal jobs website USAJOBS provides information about employment opportunities. It does not provide some important information.

First, for each job, the location of the job (or the nearest intersection) should be published along with the vacancy announcement. Current practice is to publish the address of the main office. Publishing the job location will allow job seekers to determine whether the commute is for them.

Second, for each job, the nature of telework availability should be published. While USAJOBS already indicates whether telework is possible for a position, it does not say the frequency of telework. This can be an important factor for any job seeker.

Finally, OPM issues an annual report on telework in government. It contains 100 pages of data that unfortunately are printed in a PDF. The underlying data should also be published in a spreadsheet format (like CSV). The report is entitled “Status of Telework in the Federal Government” and can be found here.

Create an alternative to DUNs

DUNs, the Data Universal Numbering System owned by Dun & Bradstreet, is a copyrighted, proprietary system used by the government and others to uniquely identify businesses. We believe the government must move to a non-proprietary, open system. This will save tremendous amounts of money, avoid lock-in to a particular company, and allow innovative use of this data. Our friends at the Data Transparnecy Coalition explain this issue in detail here.

{ Like this? You may also like Top 5 Federal OpenGov EffortsHow Agencies Can Improve Proactive Disclosure, and A Checklist for Drafters of Transparency Legislation}

— Written by Daniel Schuman

The Grassroots and the Battle Over Encryption

Remarks delivered at the #CryptoSummit on July 15, 2015.

• • •

Good morning. Thank you for inviting me.

Congratulations to ACCESS for holding such a successful summit on the vital issue of encryption. Encryption is part of a suite of technology and privacy issues that have kept things interesting up on Capitol Hill. As we saw recently, the grassroots energy and activism around surveillance and net neutrality provided an educational opportunity for members of Congress.

Right now, policymakers are in the process of mangling encryption. A senator, who I won’t name, recently compared encryption to poisonous waste dumped into our rivers and streams. He argued that companies pushing for encryption are harming the public.

It’s not entirely surprising that some members of Congress are getting this issue wrong, at least right now. Congress has seriously diminished its ability to understand complex policy issues. The number of committee staff in the House has been cut in half over the last 3 decades. Expert agencies inside the legislative branch have been cut to the bone. Congress is at the mercy of special interests for information and guidance. And no interest is more special than the defense establishment, which literally has offices on Capitol Hill and places staff in member offices.

This is why grassroots pressure is so important. It forces members of Congress to move away from simplistic narratives. It drives them out of the bubble. It forces them to engage with the people most expert on encryption — the people in this room — and with the millions behind us. Grassroots pressure also helps change the narrative about encryption and widen the range of policy options.

For example, last year’s ResetTheNet campaign encouraged developers to make their websites more secure from prying … and encouraged Internet users to use NSA-resistant privacy tools. By getting more people to use encryption, the ResetTheNet campaign worked towards three important goals:

First, it made the use of encryption more commonplace, showing that is not scary or complicated.

Second, it taught how the widespread use of encryption can protect everyone from surveillance, like mass inoculation against virulent diseases.

Third, it encouraged policymakers to find a solution that is proportionate and appropriate to the problem it is trying to address.

A campaign raising awareness around encryption, no matter how clever, is only half the battle. People must connect encryption to bigger fights and broader organizing efforts. To win on encryption, it must be seen as a brick in the wall against an overly-intrusive government and other hackers.

And that wall must be built upon opposition to the USA PATRIOT Act, to skepticism around the Communications Assistance for Law Enforcement Act, to deep concern on the Computer Fraud and Abuse Act, to dread around Executive Order 12333, and so on.

We have won unprecedented victories lately by educating and organizing around these issues. Hundreds of thousands of people weighed in on mass surveillance. We must apply those lessons to encryption, and help people connect the dots. They must come to understand the fight is about the future of privacy, about the future of technology, and about the future of democracy.

We have made good headway, but there is so much more to do. Thank you.

{ Like this? You may also like Sunsetting the Politics of TerrorWhat Our Mass Surveillance Debate Gets Wrong, & Senate Torture Report: The Senate Speaks }

— Written by Daniel Schuman

A FOIA No-Brainer

Last week, the Obama administration announced a new approach for FOIA: responses to requests will be published online immediately. This six month pilot program washes away agency practices of publishing FOIA responses online only after three requests for the same documents. While a seemingly trivial distinction, it has the real world effect of forcing agencies to publish responses online immediately, bypassing agency worst-practices of avoiding publication entirely by refusing to count requests.

Seven agencies will participate in the pilot: Environmental Protection Agency, Office of the Director of National Intelligence, and the Millennium Challenge Corporation, and components of the Department of Defense, Department of Homeland Security, Department of Justice, and National Archives and Records Administration.

Throughout the process, the Justice Department’s Office of Information Policy requests feedback from the public at releasetoall@usdoj.gov. This new disclosure approach is sensible, and complements recommendations I have made elsewhere on proactive disclosure of information of interest to the public. It also fits nicely with FOIA legislation pending in the House and Senate.

I must take issue with some of our journalist friends who have complained about the pilot program. They’d prefer a head start to receive and analyze documents and not get access at the same time as the hoi polloi. They forget the purpose of the FOIA, as described by the Supreme Court in 1973, is for “people to know what their government is up to.” (emphasis added)

Representatives of the news media already receive a special benefit under the law: fee waivers for record searches and reduced duplication costs. But the law does not provide for delayed public release. In any event, a “head start” is unworkable in practice — what if two or more requests for the same information is pending ? must an agency to keep special track of journalists? — and many others could make the case for special access.

{ Liked this? You may also like How Agencies Can Improve Proactive Disclosure and A Checklist for Drafters of Transparency Legislation }

— Written by Daniel Schuman