The United States Constitution and the Records Act of 1789
An important part of understanding the current state of open government, in the United States, is the history of public access to government information. The United States Constitution includes no specific right or process for the public to access government information (Relyea, 2005). Some arguments have tried to draw upon the 1st Amendment and the unconstitutionality of restricting speech, but these arguments haven’t been very concrete with the long history of discretion given to federal agencies. The first legislation of note concerning access to information is the Housekeeping Statute of 1789, signed by George Washington and the 14th law to be passed by the first United States Congress. The law was intended to give authority for the creation of executive offices and the authority to file government documents and established a structure for record keeping, but also gave authority to cabinet secretaries to control the records of their departments (Russell, 2005). The statute would be cited well into the late 1950s as the authority to restrict the release of government information to the public (Garson, 2006).
The New Deal and the Administrative Procedures Act of 1946 (1918-1946)
At the end of World War One, on November 11, 1918, an armistice was signed with Germany that ended fighting on the Western Front. The Treaty of Versailles signed on the 28th of June 1919 and with the treaties with the eastern powers that followed, World War One was brought to a close. The postwar decade of the 1920s, the Roaring Twenties, brought a boom in wealth and economic prosperity to the United States, but towards the end of the decade the expansion of the stock market, investor speculation, and artificially high prices brought on fear of a looming economic catastrophe. On October 29, 1929, the stock market took an unprecedented collapse known as Black Tuesday and is widely considered to be the beginning of the Great Depression.
By 1933, when Franklin D. Roosevelt became President, 85% of the stock market had plummeted and disappeared, banks were being closed in all 48 states due to runs on the bank and insolvency, people were being thrown out of their homes for being unable to pay rent, unemployment was at 24.9%, and malnourishment and starvation became very real concerns, even for the middle class (Cohen, 2009; Great Depression Facts, n.d.). In the first 105 days Roosevelt was in office, 15 pieces of legislation were pushed through congress and this first wave of New Deal legislation laid the foundation for a rapid expansion of the federal government’s size and authority to intervene in economic and social issues (Cohen, 2009). From 1933 through 1939, Roosevelt’s administration presided over the creation of 40 new federal agencies and entities to implement the legislation that resulted from the New Deal (Great Depression Facts, n.d.).
The expansion of federal government agencies and government bureaucracy, associated with the New Deal and Roosevelt’s administration, necessitated new legislation to organize and govern these new extensions of the federal government. A nearly decade long study was conducted on how to craft administrative authority, procedures, and accountability (Garson, 2006). The result was the Administrative Procedure Act (APA) of 1946. Among the many important sections of the APA that establish general rules and procedures for federal government agencies, Section 3 of the APA was entitled Public Information.
Section 3 of the APA of 1946 instructed all federal agencies to publish information in the Federal Registrar about their agency’s records, rulings, opinions, orders, available procedures, etc. Also, procedures and contact information were to be published for how the public could request access to agency records. While the APA of 1946 did create a uniform requirement for agencies to make large amounts of information available to the public on request, the legislation included many potential loopholes and significant ambiguity. One area of Section 3(c) states “matters of official record shall…be made available to person’s properly and directly concerned except information held confidential for good cause found” (APA, p. 3). The requirement for public participation in the rulemaking process for agencies was also established in the act and an important step for open government (Clark T. C., 1947).
The APA sought to make all federal government matters of official record available to the public, but its vague loopholes combined with the common practices of agencies denying requests made the APA of 1946 ineffective in providing the public access to government information (Garson, 2006). The authority of government officials to deny access to information if “good cause” could be found or if it was deemed “in the public interest” was strengthened (Yu & Robinson, 2012). The practice of agencies denying requests became even more prevalent due to anti-terrorism concerns as the fear of Communism spread in the decade after World War Two (Garson, 2006). Despite the shortcomings of the APA of 1946, the law did become the foundational legislation for its important future amendment, the Freedom of Information Act.
The Path to the Freedom of Information Act (Late 1940s-1966)
Before the Freedom of Information Act was a law, it was a political movement led by newspaper editors and reporters (Garson, 2006). Strict control of information by the government during the McCarthy era fueled an already established movement into further action in their pursuit to make government information more accessible (Garson, 2006). The general attitude of the government towards releasing information, at the time, was, if there was any doubt, classify and restrict access to material by default (Lemov, 2011; Garson, 2006). In the late 1940s, the American Society of Newspaper Editors (ASNE) created a freedom-of-information committee to research and pursue access to government information (Lemov, 2011). The editors were disturbed by the lack of access to government information and saw it as the basic rights of the nation were under threat (Lemov, 2011).
In 1951, the ASNE commissioned an attorney specializing in the representation of newspapers, former New York Herald Tribune counsel and Columbia University lecturer Harold L. Cross, to continue the study being conducted for the creation of a “comprehensive report on customs, laws, and court decisions affecting our free access to public information…” (Botein, 1954; Kahn, 1953). The resulting, published, report by Cross, in 1953, The People’s Right to Know. Legal Access to Public Records and Proceedings became an important go-to-guide for newspapers and its importance was acknowledged by lawyers, activists, political scientists, and others (Yu & Robinson, 2012; Kahn, 1953; Beaney, 1953). On the book’s dust cover, the publication stated to be a valuable source to civic organizations, journalists, lawyers, writers, students, and teachers (Kahn, 1953). As one example, in 1954, the report was reviewed by the Harvard Law Review and the field of law was very interested in having access to more government information such as police records, juvenile records, court proceedings, etc. (Botein, 1954; Beaney, 1953).
Around the same time, the U.S. Congress was battling with the federal government for access to information for their own purposes, and popular opinion had turned in favor of access to government or “public” information (Lemov, 2011). In 1955, a new Special Subcommittee of Government Information was formed, beneath the Committee on Government Operations and chaired by Representative John Moss from California (Lemov, 2011). The creation of the Special Subcommittee is believed to have been intended more so for access to government information for the legislative branch (Lemov, 2011). However, under the leadership of Moss, a strong rights defender for members of the civil service and with the accompaniment of broad public support and abundant media coverage, the focus of the subcommittee quickly expanded (Blanton T., 2006; Lemov, 2011).
The Special Subcommittee did a survey of some 60 federal agencies for discovering on what authority agencies were withholding information (Garson, 2006). The most common justification was from the Housekeeping Statute of 1789 (Garson, 2006). Moss then authored and help pass an amendment to the Housekeeping Statute of 1789 saying that the cited section could not be used to justify the withholding of information (Garson, 2006). A follow-up a year later found the practices of agencies withholding information had not changed (Garson, 2006). Congressional hearings on issues concerning freedom of information continued from 1959-1966 (Garson, 2006). Moss became the key author, supporter, and champion of the Freedom of Information Act (FOIA) through its many versions and long struggle leading to its eventual passage in 1966 (Lemov, 2011).
Then presiding President Lyndon B. Johnson was not in favor of the FOIA, though he did not risk openly opposing or vetoing the legislation. Pressure from bureaucratic interests, a fear of government transparency, and Johnson’s distaste for the media all contributed to LBJ’s stance on the FOIA (Blanton T. , 2006). Through 1965, while the bill was being debated, testimony delivered by 27 federal agencies and departments were in opposition to the bill (Blanton, 2006). Near identical versions of the bill were being debated in the House of Representatives and the Senate during 1966. After the Senate passed their version, within the Senate, the Justice Department urged for a new House Report on Congress’s version of the bill (Blanton, 2006). Afterwards, the addition of language was included in the bill for more clarity on specific types of information that could be withheld from the public and broader protection for federal agencies (Blanton, 2006). On June 20, 1966 the House version of the bill passed unanimously 307 to zero (Blanton, 2006). By the time the bill was ready to be signed into law, only one agency, the United States Department of Education, Health, and Welfare, openly recommend a veto while only three agencies were openly in favor (Blanton, 2006).
On July 4, 1966, Independence Day, President Johnson signed the FOIA into law without a signing ceremony that was characteristic of his administration (Blanton, Elias, Fuchs, & Lopez, 2004). Johnson released a signing statement with a mixed message of government openness and caution when dealing with disclosure of government information (Johnson, 1966). Johnson wrote, “I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted” and “I signed this measure with a deep sense of pride that the United States is an open society in which the people’s right to know is cherished and guarded” (Johnson, 1966). With the passage of the FOIA the public, for the first time in the nation’s history, had a clear legal right to access information from the federal government, but the unresolved issues with the disclosure of sensitive information, vague legislative loopholes, and government agencies being legally protected for denying a FOIA request would be disputed and amended for decades.
When the FOIA was passed in 1966 it was still an ineffective piece of legislation. The FOIA set no time limits for agencies to process FOIA requests, it gave no path to appeal agency decisions for withholding information, costs to process requests could be charged to the requester and decided by the agency, and there were no penalties for agency non-compliance with FOIA processes and requests (Garson, 2006). Also, when the FOIA was originally passed it only contained three exceptions to releasing information: reasons of national security, invasion of privacy, or if prohibited by another statute. These exceptions would be expanded overtime and the current list of exemptions is provided in the Figure 2 below.
Attorney General Memorandums
The expectations for how the FOIA would be implemented has a long tradition of being clarified by the acting Attorney General of each presidential administration. The practice actually started after the passage of the APA of 1946 when a senator asked for clarification on the implementation of the APA and the Attorney General Tom C. Clark responded with a memorandum on how agencies should implement the act (Clark T. C., 1947). After the passage of the FOIA, in June of 1967, Attorney General Ramsey Clark released a memorandum to government agencies to help establish common practices and implementation of Section 3 of the APA established by the FOIA (Clark R. , 1967). Attorney Generals: Edward Levi (1975), Griffin B. Bell (1977), William Smith (1981), Janet Reno (1993), John Ashcroft (2001), and Eric Holder (2009) all released memorandums that changed the implementation and administration of the FOIA. The Reno, Ashcroft, and Holder memorandums were of particular importance to modern open government and are discussed in more detail later.
House Subcommittee on Government Information 1972-1974
During House oversight hearings between 1972-1974 by the House Subcommittee on Government Information it became clear that the FOIA did not lead to a more open and accountable government and the FOIA request process was flawed (Blanton, Elias, Fuchs, & Lopez, 2004). A number of problems with the current state of FOIA were identified by the subcommittee including:
● Excessive delays in responding to document requests
● Excessive fees for searching and copying documents
● Burdensome and costly legal remedies after exhaustion of administrative remedies
● News media opting not to use the FOIA due to excessive delays and burdensome appellate procedures
● Inappropriate and inadequate agency regulations and policies regarding the FOIA, poor administration and recordkeeping regarding FOIA processes and a failure to inform members of the public of their rights under the FOIA
-(Blanton, et al., 2004). Furthermore, it appeared agencies were adopting tactics to avoid the disclosure of information including mixing together classified and unclassified material and claiming too heavy of a burden and cost to differentiate between materials (Blanton, et al., 2004). It appeared that only through costly and time consuming litigation did the FOIA work (Blanton, et al., 2004). These hearings led to congress seeking to fix the FOIA and the end result was the Freedom of Information Act (FOIA) Amendments of 1974 (Blanton, et al., 2004).
Vaughn Index
During the same time Congress was investigating the effectiveness of the FOIA, in 1973, the Judicial Branch produced a landmark Supreme Court decision relating to the FOIA in Vaughn v. Rosen. A law professor, Robert G. Vaughn, was doing research into the Civil Service Commission and requested records pertaining to evaluations for personnel management programs and those records were denied by the agency (U.S. Supreme Court, 1973). The Supreme Court ruled that they did not have enough evidence to conclude if the information was exempt from disclosure and remanded the case with instructions. Notably, the court developed what is known as the Vaughn Index for helping to establish when a denial for a FOIA request is legally legitimate (U.S. Supreme Court, 1973). Over years of court decisions the meaning and scrutiny of the Vaughn Index has been clarified and most notably by Wiener v. FBI (1991) and Citizens Commission on Human Rights v. Food and Drug Administration (1995). The Vaughn Index is perhaps best explained by quotes from the decisions of each of these important cases:
…the purpose of the index is not merely to inform the requester of the agency’s conclusion that a particular document is exempt from disclosure under one or more of the statutory exemptions, but to afford the requester an opportunity to intelligently advocate release of the withheld documents and to afford the court an opportunity to intelligently judge the contest (9th Cir., 1991).
A Vaughn Index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption (9th Cir., 1995).
Supreme Court Decisions
National security and privacy exemptions were strengthened through three important Supreme Court decisions. In the 1973 Supreme Court decision EPA v. Mink, the court ruled that classified material was exempt from the FOIA under the national security exemption. This allowed any agency with the ability to classify materials a broad tool for withholding information (Garson, 2006). In Chrysler Corporation v. Brown (1979), the court upheld that corporations could sue agencies to stop the release of information that could be potentially damaging or affect their business (Garson, 2006). These cases against government agencies were known as reverse-FOIA lawsuits (Garson, 2006). FOIA requests pertaining to personally identifiable information became even more difficult with the Supreme Court decision in 1989 with Department of Justice v. Reporters’ Committee. The court held personally identifiable information could be withheld unless the requester could show that the disclosure was necessary to shine light on an area of government (Garson, 2006). This was particularly difficult before information was even obtained or seen by requestors (Garson, 2006).
Post-Watergate 1974
In the wake of the Watergate scandal and Nixon’s resignation on August 9, 1974, the nation’s legislators were emboldened with broad public support to pass meaningful legislation for government openness and disclosure. The resulting legislation included: the Freedom of Information Act Amendments of 1974 (November 24), the Presidential Recordings and Materials Preservation Act (PRMPA) of 1974 (December 19), and the Privacy Act of 1974 (December 31).
Presidential Recordings and Materials Preservation Act (PRMPA) of 1974
During the first weeks of Gerald Ford’s presidency, the President and his staff struggled about what to do with mountains of presidential records inherited from the Nixon Administration (Werth, 2006). At one time, records were boxed up to be mailed to Nixon’s home in Clemente California, but that plan was abandoned because of potential legal ramifications for those involved, potentially being seen to be aiding in a government cover-up, and the changes in White House staff that accompanied the nervous atmosphere after Nixon’s resignation (Blanton, et al., 2004, Werth, 2006). White House advisors were even confused as to who legally owned the records of the President at the time (Werth, 2006). The Presidential Recordings and Materials Preservation Act (PRMPA) of 1974 put all Presidential records from the Nixon Administration into federal custody and laid an important foundation for future legislation and executive actions.
Freedom of Information Act (FOIA) Amendments of 1974
The FOIA Amendments of 1974 sought to address the concerns that were highlighted during the Subcommittee on Government Information’s oversight hearings into the FOIA (Blanton, et al., 2004). With the resignation of President Nixon and the public backlash to government corruption and secrecy, the legislative branch was in a strong position to make meaningful changes to the FOIA. A contentious debate and power struggle within the federal government ensued while the likelihood of the bill’s passage became more and more likely (Bernstein & Dubose, 2008; Blanton, Elias, Fuchs, & Lopez, 2004). At one time the Federal Bureau of Investigation even stopped participating in negotiations to perfect the bill with congress in an attempt to sabotage the legislation and encourage a veto (Blanton, Elias, Fuchs, & Lopez, 2004). President Ford was being pressured by agencies and interests to veto the bill, if it did pass, and he contemplated the repercussions for publicly opposing the bill in his first days in office (Bernstein & Dubose, 2008; Blanton, Elias, Fuchs, & Lopez, 2004). Some of the most important additions to the FOIA, within the legislation, included:
● releasing any portion of materials that is not exempt from nondisclosure
● annual reports on FOIA requests that were denied and the costs involved and payments received relating to FOIA requests
● de novo judicial review of FOIA request appeals and inspection of classified materials to determine if proper classification and withholding is being used
● court imposed sanctions on agency employees that wrongfully withhold information
● administrative deadlines for FOIA request responses
● the ability for agencies only to charge FOIA requesters for searching and duplicating records
● successful FOIA litigants would be compensated for court costs (Blanton, Elias, Fuchs, & Lopez, 2004; Garson, 2006).
Perhaps the most powerful and worrisome for public officials of all the added provisions to the FOIA was the addition of judicial review of federal decisions to withhold information requested under the FOIA (Bernstein & Dubose, 2008). Also, as stated above, that judicial review authority came with the ability for courts to review classified material to be able to better rule on whether information that was being withheld under one of the FOIA exemptions was lawful.
The bill passed both the House and the Senate and on October 17, 1974. President Gerald Ford vetoed the bill to amend the FOIA citing concerns for national security and diplomatic relations (Ford, 1974). Ford also criticized the amount of government resources it would take for government agencies to go through thousands of pages of documents and provide justification for why information should be withheld and Ford believed the time limits were unrealistic (Ford, 1974). On November 20, 1974 the United States Congress overrode the Presidential veto. In a passionate address by the leader of the subcommittee that drafted the amendments, Massachusetts Senator Edward M. Kennedy, the President’s concerns, as well as the bureaucracy’s, were rebuffed (120th Cong., 1974). Senator Kennedy cited numerous admitted incidences of abuse by the executive branch and government agencies including using the claim of national security interests for government cover up and using classified designations to hide agency mistakes or negligence (120th Cong., 1974). Gerald Ford’s veto was overturned and the FOIA was strengthened to give the public better recourse in the event of a denied FOIA request and a more accountable FOIA request process.
The Privacy Act of 1974, the CIA Information Act of 1984, and the Reagan Years
The same year the 1974 amendments to the FOIA were past, a new exemption was created to FOIA requests via the Privacy Act of 1974 (Garson, 2006). The Privacy Act of 1974 stipulations for not releasing federal records without consent were stated to not apply to information that fell within the FOIA, but it was used by the Ford Justice Department to mean all personnel files would be exempt (Garson, 2006). This practice continued until it was clarified by the CIA Information Act of 1984 when Congress said the Privacy Act could not be used as a FOIA exemption (Garson, 2006). The CIA Information Act also, ironically perhaps, made information and records of the CIA nearly impossible to obtain from a FOIA request (Garson, 2006). Two years later, the Freedom of Information Act Reform Act of 1986 broadened law enforcement exemptions within the FOIA that increased the ability of federal agencies to claim exemptions to FOIA requests (Garson, 2006). An important contribution of the Privacy Act of 1974 was that many agencies began sharing data and creating databases that matched information across federal agencies (Garson, 2006). In 1987, President Ronald Reagan issued Executive Order 12600 that enhanced the ability of corporations to block information being released that was “confidential commercial information” if it could be viewed to cause “substantial competitive harm” (Reagan, 1987). So if a FOIA request was made that would include commercial information, the commercial party would be notified and if they objected the agency could deny a request or withhold the related information (Reagan, 1987).
Clinton Era: Openness in Government, Electronic Information, and E-FOIA
During the 1990s the FOIA and government information were brought into the digital age. The Clinton administration encouraged agencies to operate with “the principle of openness” with all agency disclosures and promoted an Openness in Government initiative (Reno, 1993). The administration informed agencies that the Justice Department would no longer side with a government agency because there was a “substantial legal basis” to do so, but, instead, would operate on a “presumption of disclosure” (Reno, 1993). Further, agencies were instructed that FOIA requests should not be denied because they fall within an exemption unless “disclosure would be harmful to an interest protected by that exemption” (Reno, 1993). The administration recognized the large problem with FOIA request backlogs, agencies’ inability to meet the legal response times, and the lack of funding and resources needed by agencies (Reno, 1993). President Clinton’s Circular A-130, a policy document updated periodically by administrations, revised information policies and instructed agencies to no longer use third-parties for information maintenance and disclosure (Garson, 2006). Circular A-130, entitled Management of Federal Information Resources, also made the same legal protections applied to publications and audio-visual recordings to apply to “electronic information products” (Office of the Press Secretary, 1993). Circular A-130 would be updated again, by the OMB during President Obama’s administration, to define information “as any communication or representation of knowledge such as facts, data, or opinions presented in any medium or format” (Office of Management and Budget [OMB], 2009). With the addition of the Electronic Freedom of Information Act Amendments of 1996 (E-FOIA) agencies were required to publish records online.
Also, President Clinton issued an executive order in 1993 (E.O. 12862) and two memorandums (1995 and 1998) to improve the delivery of services from government agencies and solicit public input about the quality of government services. Agencies that deliver services to the public were required, among other things, to:
● Identify and Survey Customers
● Establish service standards and Track Performance
● Track and Compare Customer Service Performance to other Organizations
These executive actions were later built upon by Obama’s E.O. 13571 (2011) and the Digital Government Strategy (2012). During the time of the Presidency of Bill Clinton, many advancements in managing government information and services were achieved. These changes were fueled by the technology of the day combined with federal policies of government openness.
George W. Bush Era: National Security, E-Government Act of 2002 and Open Government Act of 2007
Shortly after the 9/11 terrorist attacks in 2001, Attorney General John Ashcroft released a memorandum on the FOIA on October 12, 2001 superseding former Attorney General Reno’s 1993 memorandum instructing the presumption of disclosure. The position of the Department of Justice returned to protecting agencies in withholding information “unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records” (Ashcroft, 2001). Agencies were instructed to only disclose information “after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information” (Ashcroft, 2001). On November 1, 2001, President Bush issued an Executive Order 13233 concerning presidential records. Presidential records would be allowed to be withheld by former Presidents for up to 12 years by invoking confidential privilege. The executive order also applied the Presidential Records Act of 1978 to Vice Presidential records as well. A year later, on November 27, 2002, an amendment to the FOIA signed into law, as a part of the Intelligence Authorization Act for Fiscal Year 2003, to disallow FOIA requests to be made by groups not originating within the United States or operating through an official representative.
On December 17, 2002, the E-Government Act of 2002 was signed into law and continued the trend of digitizing government information and improving and promoting government services through the use of the internet, computers, and electronic tools. The E-Government Act was a multifaceted piece of open government legislation that was before its time. The legislation, also, created the important position of Chief Technology Officer (CTO) for the Office of Management and Budget (OMB). Some of the stated purposes of the act and its provisions included:
● To promote use of the Internet and other information technologies to provide increased opportunities for citizen participation in Government.
● To promote interagency collaboration in providing electronic Government services, where this collaboration would improve the service to citizens by integrating related functions, and in the use of internal electronic Government processes, where this collaboration would improve the efficiency and effectiveness of the processes.
● To promote the use of the Internet and emerging technologies within and across government agencies to provide citizen-centric Government information and services.
● To promote better informed decision-making by policy makers.
● To promote access to high quality Government information and services across multiple channels.
● To make the Federal Government more transparent and accountable.
● To transform agency operations by utilizing, where appropriate, best practices from public and private sector organizations.
● To improve the ability of the Government to achieve agency missions and program performance goals.
● To reduce costs and burdens for businesses and other Government entities.
The legislation reads like a modern open government plan and many of the ideas and concepts written into the law promoted lasting principles and goals that continue to endure 15 years later. President Obama would echo many of these concepts throughout his policies and initiatives as president.
From 2005-2008, several more pieces of legislation passed that improved government transparency and access to government information: Federal Funding Accountability and Transparency Act (FFATA) of 2006, Honest Leadership and Open Government Act of 2007, Federal Funding and Transparency Act (FFATA) of 2008. M-06-02, Improving Public Access to and Dissemination of Government Information and Using the Federal Enterprise Architecture Data Reference, also contributed to the changes in handling and distributing government information.
The Honest Leadership and Open Government Act of 2007 also notably amended the FOIA and extended standing by news groups to make FOIA requests extend to bloggers or other new media.
Barack Obama’s First Day in Office: Jump-Starting Open Government
January 21, 2009 was Barack Obama’s first day in office and an important day for open government with the release of two presidential memorandums and an executive order. The first executive action to bear the President’s signature was the Memorandum on Transparency and Open Government (White House, 2011). The memorandum was directed to federal agencies and departments and stated government should be transparent, participatory, and collaborative to help strengthen democracy and increase the effectiveness and efficiency of government. The memorandum also called for the coordination of efforts to draft an Open Government Directive, within 120 days, to direct executive departments and agencies to implement the principles within the memorandum.
Also on January 21, 2009, Barack Obama issued a memorandum pertaining to the Freedom of Information Act calling for presumptive disclosure by all government agencies to resume and that agencies should use modern technology to inform the public about the workings of their agencies and release information without waiting for requests from the public (Obama, Memorandum: Freedom of Information Act, 2009). This “presumption of openness” was further outlined by Attorney General Eric Holder in December of 2009, with a memorandum released to federal government agencies (Holder, 2009).
The third important executive action taken by President Barack Obama on his first day in office, relating to open government, was Executive Order 13489 dealing with the release of presidential records. E.O. 13489 revoked E.O. 13233 signed on November 1, 2001 by President George W. Bush addressing the release of presidential records. The executive order gives 30 days for former and incumbent presidents to review presidential records before being released to the public (Ginsberg, 2014). On November 26, 2014, under the 113th Congress (2013-2014), this time frame was extended to 60 days with the passing of the Presidential and Federal Records Act Amendments of 2014 (Ginsberg, 2014).
Open Government Directive
In the Memorandum on Transparency and Open Government (2009), President Obama directed the Chief Technology Officer (CTO), the Office of Management and Budget (OMB), and the Administrator of General Services to coordinate the development of the Open Government Directive (Obama, Memorandum: Freedom of Information Act, 2009). On February 24, 2009, the CTO, OMB, and the General Services Administration (GSA) released memorandum M-09-12, entitled President’s Memorandum on Transparency and Open Government – Interagency Collaboration, calling upon federal employees, agencies, and existing interagency groups to be a part of an interagency, collaborative discussion and process for developing the Open Government Directive (Holdren, Orszag, & Prouty, 2009). Online sessions and discussions would provide the “opportunity to propose topics, strategize alternatives, and make suggestions…as well as identification of potential legal, policy, and programmatic issues that will need to be resolved” (Holdren, Orszag, & Prouty, 2009, p. 2). On December 8, 2009, the OMB Director, Peter Orszag, released the resulting important memorandum, M-10-06, the Open Government Directive.
In the Open Government Directive, federal agencies were instructed to implement several new open government initiatives that progressed the vision of transparency, participation and collaboration and stayed consistent with the policies outlined in: President Obama’s Memorandum on Transparency and Open Government, Attorney General Eric Holder’s memorandum on the implementation of the FOIA, and the policy of presumptive disclosure by government. The new requirements for federal agencies included to:
Create and publish their own Open Government Plans
● Release and publish information online in an “open format”
● Publish at least three high-value data sets to data.gov
● Create an Open Government Webpage
● Include avenues for public feedback on Open Government pages for open government plans and published information
● Regularly respond to public feedback on Open Government webpages
● Reduce FOIA backlogs
● Improve the quality of published open data
● Appoint an agency lead for ensuring the quality of published open data
● Abide by deadlines for the completion of open government objectives
● Implement “incentive-backed strategies to find innovative or cost-effective solutions to improving open government”
● Proactively use modern technology to release information
● Create Flagship Initiatives that promote transparency, participation, or collaboration (at least one)
● Information of declassification programs and how to gain access to declassified materials
● Congressional request reports
The framework laid out in the Open Government Directive has had a transformational effect to the workings of federal government agencies and open government practices in the United States. An increase in public participation, collaboration, and transparency has indeed resulted. Agencies have embraced the directive to varying extents that will be discussed, further, later. Though the general agency requirements for open government: plans, webpages, flagship initiatives, high-quality data sets, participation with centralized federal data sites, integration of new technologies and standards, and increased public feedback and participation has led to an experimental expansion of open government.
Open Government Working Group
Beyond new agency requirements and expectations, the Open Government Directive also outlined the centralized role the OMB would play in assisting with integrating new technologies and guidelines and provide guidance on policy changes and increased openness in government (OMB, 2009). The Deputy Director for Management at the OMB, the Federal Chief Information Officer, and the Federal Chief Technology Officer were tasked with establishing an inter-agency working group to focus on collaboration, transparency, accountability, and participation within the Federal Government. The Open Government Directive instructed this working group to be composed of “senior level representation from program and management offices throughout the Government”. The functions of this working group are stated to include:
● 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
● Coordinating efforts to implement existing mandates for Federal spending transparency, including the Federal Funding Accountability Transparency Act and the American Reinvestment and Recovery Act
● 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.” -(Section 3c)
Observations, by the author, of this working group show it is still functioning as of 2016 and encourages agency collaboration and the opportunity to share insights and experiences between government agencies and host nongovernment guests as well. Meetings of this working group happen simultaneously via large conference calls, video conferencing, and an in person meeting as a larger collective multi-medium meeting with various interactions and presentations by agency representatives and guests.
Open Government Plans
The agencies’ Open Government Plans vary greatly from agency to agency with some being very minimal to others that are extremely experimental or that harness ideas that were successful from other organizations. In the Open Government Directive (2009), agencies were instructed on how to formulate Open Government Plans and what components should be included. An agency’s plan was required to include details of how agencies would increase collaboration, participation, and transparency within their agency and also detailed various requirements for publishing agency information and introducing innovative ways to increase collaboration and public participation.
In the 2009 Memorandum on Transparency and Open Government, President Obama stated that government should be transparent, participatory, and collaborative. These three terms have created a direction and foundation for federal agency open government requirements and goals. In the Open Government Directive, requirements for agencies’ open government plans were outlined with a section each for transparency, public participation, and collaboration. Excerpts from the introduction of each section are included below to show the level of importance place on each topic.
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. (p. 7)
Participation- 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 (p. 9).
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 (p. 9).
Open Government Plans were to be created with input from senior policy, technology, and legal agency leadership within the agency as well as open government experts and the public. Agency Open Government Plans vary from 10 pages to around 100 pages. The majority of federal agencies released open government plans in: 2010, 2012, and 2014 as required by the Open Government Directive. Some agencies have released Open Government Plan updates every year and have labeled the in between years versions 1.5, 2.5, and 3.5. The department of Commerce is a good example of an agency that has used this schedule for Open Government Plan updates, beyond the every two year requirement. The OMB released updated guidelines for agencies’ Open Government plans in 2014 and 2016.
Guidelines and requirements for agencies’ open government plans have been updated by the OMB in 2014 and 2016. In a memorandum released on February 24, 2014, entitled 2014 Agency Open Government Plans, new guidelines were given to federal agencies for their open government: plans, initiatives, and websites.
The new and expanded initiatives to be incorporated in agencies’ 2014 Open Government Plans:
● Open Data
● Proactive Disclosures
● Privacy
● Whistleblower Protection
● Websites
Ongoing initiatives to be incorporated in agencies’ 2014 Open Government Plans:
● Participation in Transparency Initiatives
● Public Notice
● Records Management
● FOIA Requests
● Congressional Requests
● Declassification
● Participation
● Collaboration
● Flagship Initiative
● Public and Agency Ideas
Guidelines for agencies’ 2016 Open Government Plans were delayed until the release of memorandum m-16-16, on July 15, 2016 – 2016 Agency Open Government Plans. The memorandum calls for yearly updates to agencies’ Open Government Plans to be released beginning on September 15, 2016. Though, as of November 2016, some Federal Agencies do not appear to have yet published Open Government Plans after their 2014-2016 versions. Several new components for agencies’ Open Government Plans were added with the OMB’s 2016 guidelines. Also, previously required Open Government Plan components were expanded upon with the 2016 OMB guidelines. Additional initiative sections to be incorporated in agencies 2016 Open Government Plans included:
● Open Innovation Methods
● Access to Scientific Data and Publications
● Open Source Software
● Spending Information
The Open Government Directive (2009) also required agencies to outline at least one Flagship Initiative that focused on transparency, collaboration, and/or participation within their open government plans. The requirement for agency Flagship Initiatives has been a recurring requirement through the updated guidelines released by the OMB. Required updates on the status of previous Flagship Initiatives and new initiatives are required in new Open Government Plans.
Data Portals and Government APIs
Data portals have become powerful tools of open government and they continue to grow and evolve. In March of 2009, a new Chief Information Officer for the OMB, Vivek Kundra, was appointed and announced the creation of data.gov (Hansell, 2009). In December of 2009, M-10-06, the Open Government Directive instructed federal agencies to publish available data on data.gov and identify other potential data sources that could be published. At minimum, agencies were to publish three machine readable high-value data sets. A steady increase to the number of available data sets has resulted since the creation of data.gov, and the utility has gone far beyond accessing research data. Eurostat for the European Union and Data.gov.uk for the United Kingdom are also similar large scale government data portals.
These three sites are growing destinations for accessing government: applications, APIs, tools, data visualizations, research, records, statistics, spatial data, and more. Data.gov hosts nearly 200,000 data sets, approximately 9,000 APIs and links to 334 government applications available from 78 agencies and sub agencies of the federal government and 30 non-federal (state, city, county, tribal) sources (U. S. General Services Administration [GSA], n.d.-a). Data.gov acts as an aggregate for information on open data resources and state, local, and tribal governments can submit data to be displayed by submitting data sets that meet the federal requirements and standards (GSA, n.d.-b). Researchers, software and application developers, entrepreneurs, journalists, nonprofits, private firms, and more all have the potential to greatly benefit from the trove of data and tools available through government data portals like data.gov, Eurostat, and data.gov.uk.
Data.gov was developed publicly on GitHub with the use of the open source platforms CKAN and WordPress (GSA, n.d.-b). The Open Data Policy – Managing Information like an Asset, released in 2013, set new data standards for metadata and metadata vocabulary through the Project Open Data Metadata Schema. The standards include required fields for all data sets published to data.gov.
Open Government Partnership (OGP) and Open Government Declaration
On September 20, 2011, at the United Nations General Assembly, President Barack Obama along with seven other heads of state and civil society leaders publicly endorsed the Open Government Declaration and formed the multilateral initiative of the Open Government Partnership (OGP) (White House, n.d.-a; United States Department of State, n.d.). The eight founding member countries of the OGP included: Brazil, Indonesia, Mexico, Norway, the Philippines, South Africa, the United Kingdom, and the United States (United States Department of State, n.d.). Today, membership to the OGP has expanded from the original eight founding nations to 70 nations around the globe and over a third of the world’s population live in a nation that is a member of the OGP (White House, n.d.-a; Open Government Partnership, n.d.-a). The map below comes from the OGP and displays member countries and their various levels of progress with NAPs. The OGP releases annual reports, holds annual summits, and gives awards for innovative practices. Also of note, the hashtag on Twitter for the OGP, #ogpatun, has seen a steady stream of activity from around the world from citizens, government officials, and members of civil society.
For a country to become a member of the OGP it must take three outlined steps: achieve eligibility, submit a letter of intent, and identify a lead ministry or agency and begin developing an Action Plan (Open Government Partnership, n.d.-b). To achieve eligibility, a nation must show a level of commitment to open government principles in the areas of: fiscal transparency, access to information, income and asset disclosures, and citizen engagement. Nations must meet a minimum eligibility criteria level of 75% to be deemed eligible for admittance. In the letter of intent filed with the OGP, the applying nation must endorse the principles and commitments of the Open Government Declaration and letters of intent are published on the OGP website. Finally, in naming a lead agency or ministry and developing a National Action Plan (NAP), permanent mechanisms for public input and consultation with civil society must be established.
The Open Government Declaration, the foundational document of the OGP, is a concise document that, once endorsed, acts as a nonbinding, voluntary commitment for nations to the principles of open government in the 21st century. The document opens with an acknowledgment that citizens from around the world are demanding more openness in government including increased: transparency, accountability, civic participation, responsiveness of government, and government effectiveness (Open Government Partnership, 2011). Further, the Open Government Declaration recognizes the value of promoting openness when engaging with citizens to manage resources, improve services, promote innovation, and create safer communities. The document highlights its natural association to promoting human rights, human dignity, better government, innovation, progress, and an increasingly interconnected world. The main titles of the four commitment sections include: 1. Increase the availability of information about governmental activities, 2.Support civic participation, 3. Implement the highest standards of professional integrity throughout our administrations, 4. Increase access to new technologies for openness and accountability.
National Action Plans (NAPs)
Also during the September 2011 United Nations General Assembly, the United States released its 1st National Action Plan entitled The Open Government Partnership: National Action Plan for the United States of America. NAPs act as a guide to current and future open government commitments, initiatives, and strategies. 23 new, federal level, open government commitments were created or expanded upon in the United States’ 1st NAP. The 2nd U.S. NAP was released on December 5, 2013 and the 3rd U.S. NAP was released on October 27, 2015. Each successive plan has become longer and more in depth as the foundations of a new approach to government, on a national level, are being formulated and expanded upon.
E.O. 13571 and the Digital Government Strategy
On April 27, 2011, President Obama released Executive Order 13571 – Streamlining Service Delivery and Improving Customer Service. The executive order cited the previous executive actions by President Clinton and added that advancements in technology and service delivery in other sectors had caused the public’s expectations for government to rise (Obama, Streamlining Service Delivery and Improving Customer Service, 2011). Agencies were instructed to, among other things, identify ways to streamline service delivery with innovative technologies, decrease delivery times of services, improve the customer experience, and develop Customer Service Plans. In E.O. 13571 in 2011, President Obama instructed the Federal CIO to develop a government-wide digital government strategy (Obama, Streamlining Service Delivery and Improving Customer Service, 2011).
On May 23, 2012, the CIO released Digital Government: Building a 21st Century Platform to Better Serve the American People, also known as the Digital Government Strategy. Obama stated in a memorandum released the same day, that he had instructed the CIO to create this strategy to create a “digital Government that delivers better digital services to the American people” (Obama, 2012). The Digital Government Strategy created new practices, standards, and organizations to increase inter-agency collaboration, manage digital content, better deliver services at lower costs, and share experiences and technologies within the government (Chief Information Officer Council, 2012).
The Digital Government Strategy also called for the creation of a Digital Services Innovation Center and Advisory Group. The Advisory Group was to be assembled with leaders across government agencies to coordinate agency collaboration. The initial goals of the Advisory Group were:
● Advise the CIO on the implementation of the Digital Government Strategy
● Help prioritize shared services needs for the Digital Services Innovation Center
● Foster the sharing of existing policies and best practices
● Identify and recommend changes to help close gaps in policy and standards
● Publish deliverables online
The Innovation Center had three initial goals:
● Identify shared and open content management system (CMS) solutions and support implementation through training and best practices
● Help agencies develop web APIs and unlock valuable data
● Launch a shared mobile application development program
Open Data Memorandum and Open and Machine Readable Information E.O.
On May 9, 2013, the OMB released M-13-13, Open Data Policy-Managing Information as an Asset on the same day as President Obama released E.O. 13642, Making Open and Machine Readable the New Default for Government Information. The Open Data Policy put in place new policy requirements to better steward the collection and management of data through its life-cycle and requirements for agencies including: an enterprise data inventory of all data resources for agencies and a public data listing (Office of Management and Budget, 2013). The importance of making documents machine readable and managing data through its life cycle was a major focus of these actions.
Open Government from 2014 to 2016 and the FOIA Improvement Act of 2016
2014-2016 saw increased expansion of open government initiatives by federal agencies through the release of 3.0 Open Government Plans and the White House through the third NAP. 2014-2016 seemed to be a time of experimental practices by federal agencies trying to implement new open government tools, practices, and systems while identifying new potential directions for open government within the agency. Identifying, digitizing, standardizing, and publishing datasets became a chief priority for agencies through mandated OMB and executive requirements.
The FOIA Improvement Act of 2016 (Pub. L. 114-185) codified into law several important FOIA and OGD policies including: the Department of Justice’s “foreseeable harm” standard for FOIA requests, presumptive disclosure by segregating and releasing nonexempt information not restricted by law, and notify requesters of denied FOIA requests of their right and services to appeal decisions. Other components of the legislation include duties for Chief FOIA Officers, the creation of a Chief FOIA Officer Council, and additional FOIA report requirements.
Open Government History Analysis
Balancing national security/privacy concerns and the public’s access to government information will most certainly be an ongoing issue of debate around the world. As executive administrations, technologies, and common standards change, so shall the default approaches to dealing with disclosure and OGD. Though, the infrastructure put in place to improve government services and manage government data is unlikely to be drastically reversed. As presidential administrations change, it will be interesting to watch for executive actions and memorandums from the Attorney General and the OMB on the implementation of the FOIA and the federal government’s default stance on open government. Perhaps the biggest unknown is whether traditions, partnerships, and mandates on open government and public participation will be continued or eliminated. Will NAPs, agency open government plans, and open government initiatives become ingrained parts of our system or a passing fad? Will the presumption of disclosure of federal agency information continue, regardless of administration, after steps were taken to codify DOJ implementation guidance like the foreseeable harm standard? Will the Department of Justice find a way to revert back to defending federal agency decisions to withhold information and deny FOIA requests if a legal basis can be established? How will the handling and release of presidential records change by administration?
International trends and agreements seem to show open government as here to stay or a nation might risk missing out on improvements for government, private sectors, and the public in innovation, productivity, collaboration, and economic potential. The federal government stance on continuously pursuing higher levels of open government, aspired to by President Obama, will more than likely change by administration, but the cultures, systems, processes, and infrastructure implemented and embraced by agencies, over the last eight years, will have lasting impacts of varying degree.
Following the history of open government policy has highlighted how public pressure, crises, fear, and politics can lead to new open government policies. The Roaring Twenties, the Great Depression, the Cold War, the Watergate scandal, September 11th, and changes in Presidential administrations have all had transformative effects that influenced open government policies and especially in regard to public access to government information. While it is true that closing out the year of 2016 the United States enjoys the highest level of transparency and public participation in the nation’s history, reviewing the history of open government reveals that it has not always been a linier progression towards greater transparency. The patterns of oscillation between greater levels of government transparency and restricting access to government information has repeated enough to be significant. With new methods and tools for collecting and distributing government data being implemented, new privacy and security concerns can be imagined. Beyond new technology created concerns, geopolitical tensions and international relations could drastically effect access to OGD and public participation. During the Cold War and the post 9/11 Bush administration, access to information was restricted that was once made available to the public. It is not unrealistic to expect that large geopolitical events could once again be used as justification for restricting public access to government information.
Download the complete research paper,”Open Government: Innovative Practices,” through the link below.
http://dustinmcg.com/wp-content/uploads/2019/04/Open-Government-Innovative-Practices.pdf
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