Open government endures in the nation’s capital. On November 19, the U.S. National Archives and Records Administration (NARA) hosted a meeting between the Archivist of the United States, David Ferriero, senior officials, and representatives of civil society organizations that advocate for transparency and accountable government. Ferreiro has been hosting these meetings for nine years and counting. As in the past, I shared the agenda of our discussion online on the day of the meeting.

And, as in the past, NARA told me that the information they shared with us at the meeting was public – so I’ve written up what I learned, below.

On Kavanaugh records requests

The first topic on the agenda addressed Congressional and Freedom of Information Act requests and subsequent records disclosures stemming from associate Supreme Court Justice Brett Kavanaugh’s public service at the White House.

These records were the subject of considerable interest before his nomination and continue to be relevant to public understand of his public service and legal thinking, now that he has been confirmed to a seat on the nation’s highest court. (The White House invoked executive privilege on many of these documents.)

NARA’s chief counsel, Gary Stern, said that NARA has tried to be as transparent as possible about these records in response to requests from the U.S. Senate, highlighting the landing page for Kavanaugh’s records on Archives.gov. These requests comprise some 900,000 pages from Kavanaugh’s tenure as White House counsel in the Bush administration and 20,000 from his time on the special counsel’s team, of which 300,000 were processed by the end of October.

NARA could not process and disclose all of these records in their entirety prior to the hearing, Stern said. The remainder are pending, with another tranche of documents expected to go online in mid-December.

NARA determined that it was legally obligated to respond only to requests from the chairman of a given Senate or House Committee, citing an opinion by the Department of Justice’s Office of Legal Counsel.

Stern also noted a parallel process of review in which a private attorney, Bill Burke was involved in reviewing records for disclosure.

In answer to my question, NARA’s chief counsel confirmed that this situation was unprecedented, and said the scenario was neither addressed nor precluded by the statute.

As with the issue of requests by the minority party or the transparency of presidential libraries, NARA said that Congress would need to change the statute to address any loopholes.

Updates from the National Declassification Center (NDC)

The NDC is moving forward with declassification of more records from the Nixon presidency. It is also consolidating all classified records from the libraries of former administrations. NARA said it will announce a new National Declassification Center director this calendar year.

Separately, NDC chief operating officer William Bosanko said that NDC has sent CDs with more records from the Argentina Declassification Project to the National Security Council. NARA said that President Donald J. Trump will give the CDs to Argentine President Mauricio Macri at this week’s G20 Summit in Buenos Aires, as he did in 2017. The records on them will be disclosed to the public at the end November.

These disclosures by the State Department and US intelligence agencies are the result of actions directed by President Barack Obama in 2016, when he announced that the United States would declassify records about human rights abuses during Argentina’s dictatorship, from 1976 to 1983.

Updates from the Information Security Oversight Office (ISOO)

ISOO director Mark Bradley said that the office is making slow, deliberate, ongoing progress updating a new executive order on security classification system and has found it refreshing to find support in his work across agencies on the recommendations in ISOO’s annual report to the president. He noted that ISOO is facing the challenge of declining budgets at the same time a deluge of electronic records is inbound across the federal government.

Updates on records management

Laurence Brewer, the chief records officer of the United States, said NARA is continuing to work on updating the 2005 records guidance on Web records, with a goal of getting new guidance in place before 2020. NARA is focusing on modernization and transparency, and internally discussing how technology, resources, and sustainability. The updated guidance will include not just websites, but social media, instant messaging, cloud-based collaboration software like Slack, and ephemeral apps like Snapchat.

Brewer said that there will be a follow-up “very soon” on a 2017 meeting regarding this policy with me, Gavin Baker from the American Library Association, and the former leaders of the Sunlight Foundation’s Web Integrity Project. Sunlight, the American Library Association, and OpenTheGovernment subsequently sent a letter to NARA advocating that the policy include proactive public engagement, including public explanation and narration of updates, downtime, or removals to public records online. I encouraged NARA to engage more public stakeholders in future discussions, particularly the Internet Archive and the Library of Congress.

Separately, NARA is evaluating Regulations.gov as a government-wide tool for sharing proposed schedules and gathering public comment, moving beyond email. I highlighted some concerns about the impact of limitations to the Regulations.gov API on public access to public comments, and encouraged NARA to ensure bulk open data access would be an option.

When asked about the failure of the Department of Homeland Security to create adequate documentation to enable the reunification of children with their parents when it began enforcing the Trump administration’s family separation policy, NARA’s position is that DHS should have been creating records sufficient to the need. (This fall, a former adviser in DHS’ Office for Civil Rights and Civil Liberties said Border Patrol and Immigrations Customs Enforcement agents did not consult with the office, nor create sufficient documentation to enable the Department of Health to reunite families.) Brewer said that NARA relies upon agencies to have policies in place for a given activity, although it does require agencies to conduct training at all levels and performs oversight triggered by risk assessments of self-reported data and unauthorized dispositions.

When asked about the use of phone calls to avoid creating records, Stern said that while there is a threshold need to create adequate paper documentation of public business, it’s subject to interpretation. NARA has talked with senior staff about the issue and unauthorized dispositions and will posting updates on its dashboard.

When asked about reports that the President of the United States has a habit of ripping up public records – and that the career civil servants at the records management office tasked with taping them back together had been terminated – NARA’s chief counsel said that it has no authority regarding violations of the Presidential Records Act. Archivist David Ferriero said that he is in regular contact with the White House and has provided guidance on presidential and federal records.

The day after a historic midterm election night brought historic changes to the composition of Congress, state and local governments that more closely reflect the extraordinary diversity of the union, the United States remains a partisan, polarized nation.

Despite references to bipartisanship by U.S. House Minority Leader Nancy Pelosi and President Donald J. Trump in press conferences today, the prospects for productive camaraderie between a White House that demonizes its political opponents, the press, and immigrants and a House of Representatives that is investigating corruption, fraud, waste, and maladministration in the institution are dim this afternoon.

That is not, however, the weather forecast for sunshine in Washington.

The public should expect the 116th Congress to obtain the president’s tax returns, which he said again today that he would not disclose. (Under the law, the House Ways and Means Committee, the Senate Finance Committee & the Joint Committee on Taxation “can obtain any of the president’s returns from the IRS without his consent.”) Expect genuine oversight of federal agencies and Investigations of the president’s conflicts of interest and abuses of power. Depending upon what the special counsel reports to Congress, articles of impeachment. And maybe even anti-corruption and ethics reform, in its wake.

Rep. Elijah E. Cummings, the ranking member of the House Committee on Oversight and Government Reform, shared the grave concerns I expressed before the committee in 2017 about corruption, transparency, and ethics in this administration. Nearly every one has come to pass, and worse. In 2019, the new chairman of the oversight committee will be in a position to hold the Trump administration and the president accountable in a way he has not been before. Cummings issued a statement today that makes his commitment to doing his constitutionally mandated job clear:

“I thank the voters of Maryland’s seventh district for showing their faith in me and electing me to represent them in Congress.

The American people voted to give the House of Representatives a mandate—to conduct credible, independent, robust, and responsible oversight of the Trump Administration.

I have served as the top ranking Democrat on the Oversight Committee for nearly eight years. I have served with both Republican and Democratic Chairmen, and with Republican and Democratic Presidents. I have seen oversight work well, and I have seen it work poorly. For the past two years, it has been virtually nonexistent.

Meanwhile, President Trump has been eroding the foundations of our democracy. He has been degrading the vision of our Founding Fathers—from attacking the right to vote to undermining the freedom of the press.

Yesterday, the American people voted to change that. They voted for transparency and accountability. They voted to make sure our government works effectively and efficiently for the American people. And they voted to bring integrity back to government.

As part of that mandate, I plan to shine a light on waste, fraud, and abuse in the Trump Administration. I want to probe senior Administration officials across the government who have abused their positions of power and wasted taxpayer money, as well as President Trump’s decisions to act in his own financial self-interest rather than the best interests of the American people. I also want to focus on uplifting the American people and improving their day-to-day lives, from lowering prescription drug prices to ensuring access to affordable and quality healthcare to expanding funding for the opioid epidemic.

We must now accept this mandate and fulfill our solemn duties under the Constitution. I call on all of my Republican and Democratic colleagues to join us in this effort.”

Contrary to the hypocritical contention of Senate Majority Leader Mitch McConnell, oversight is not “presidential harassment.” While threatening to investigate Members of Congress of the opposition party for holding him to account was an abuse of public power by President Trump, there is no doubt that Congressional Democrats would be fulfilling their constitutional duty.

Congressional oversight of the executive branch has occurred throughout US history under the Constitution. Unfortunately, despite warnings from watchdogs concerned about corruption, there has been an embarrassing void of meaningful oversight in first two years of the Trump administration, despite warning signs in the presidential transition and then copious examples of ethics violations and corruption.

The 115th Congress was marked by an abdication of leadership on ethics and open government, in which Speaker of the House Paul Ryan simply abdicated his Constitutional role to check and balance a president with no experience in public service who has proceeded to brazenly mix public business with private interests in the most unethical presidency in modern U.S. history.

The public should expect more from our representatives. In 2019, we are likely to be more informed about the corruption, venality, and maladministration that has marked over the past two years in “Trump Town,” all of which Congress tolerated and even enabled through deregulation and lax oversight. In order to begin to restore public trust in federal government, those revelations will need to be accompanied by accountability and ethics reforms that an angry, active citizenry demand. Our union will only be as strong as we make it, together.

Silence speaks volumes when it comes to public engagement and announcements about transparency initiatives. That’s a gross understatement in the White House of 2018, but true around the world.

As Tajha Chappellet-Lanier reports, an August 31 deadline has come and gone – but there is still no fourth National Action Plan for Open Government for the Open Government Partnership, three months after the United States government re-opened public comments for new commitments to the global, multi-stakeholder initiative.

When asked for comment, the White House had no response to Chappellet-Lanier.

Over the past three weeks, I’ve repeatedly asked the White House Office of Management and Budget and the Office of the Press Secretary for comment and received no response. If I do, I’ll update this post.

Unless you’re looking to do a puff piece or they’re trying to push a certain message out, “no comment, no response” seems to be OMB’s preferred method for handling most press requests these days. Disappointing for an agency with such a large portfolio of gov IT policy issues. https://t.co/Y0MmlcnkRk

— Derek B. Johnson (@DerekDoesTech) September 10, 2018

After receiving and documenting assurances from White House officials and civil servants in June that workshops and this public consultation were being held in good faith, the Trump White House has once again simply gone dark, as it did after the Office of Management and Budget abruptly delayed a publishing new plan on October 31, 2017.

What to make of this?

It is one of the two likely scenarios that I outlined in an explanatory analysis I contributed to Federal Computer Week in August:

As in other nations, if the White House submits a plan, look for it to position existing digital government initiatives and emerging technology programs – like those outlined in the Presidential Management Agenda – in a handful of commitments in a new open government plan. (That’s a maneuver that has been aptly described as “openwashing” in the past.) It’s also possible that the administration will keep delaying and drawing the consultation process out, given the absence of meaningful consequences for doing so in the court of public opinion, particularly at a historic moment when the presidency itself typified by crisis.

The latter scenario is where the process stands today.

Will this silence matter? It’s unlikely, given the context of the chaotic, corrupt presidency in which regression from good governance has been the norm.

In September 2018, the consequences for delaying a national plan for the Open Government Partnership again are negligible for the United States government if watchdogs don’t cry foul, Congress doesn’t hold hearings, and media outlets that the White House and President Trump cares about don’t cover it.

That doesn’t mean that those constituencies shouldn’t be paying attention, only that public attention is both deeply fractured, polarized, and focused on other issues.

The Partnership itself isn’t commenting, beyond noting that its steering committee will review the issue in January 2019, long after a different sort of verdict has been rendered upon this Congress and administration in the midterm election.

Thanks @digiphile. Here is a link to rules regarding dates and deadlines for OGP Action Plans. For the U.S., a review by the OGP Steering Committee will commence on January 1 if a plan is not submitted. https://t.co/lmnF9e4dGN

— Open Gov Partnership (@opengovpart) September 5, 2018

On May 29, senior officials from the White House Office of Management and Budget and the State Department confirmed that the United States will develop a new National Action Plan for Open Government for the Open Government Partnership this spring and summer, hosting two “co-creation” events in June and re-opening an online forum for public comments on Github. The State Department announced that the U.S. would be restarting the consultation process for building a new plan two weeks ago, at a separate event.

Today, in an email sent to the open government and civil society working group email listserv, GSA analyst Alycia Yozzi shared noted about the remarks delivered by the three officials, who were

• Matt Lira, special assistant to the president for innovation policy and initiatives in the White House Office of American Innovation
• Matt Bailey, acting policy unit chief, Office of the U.S. Chief Information Office, White House Office of Management and Budget
• Chanan Weissman, special advisor in the Department of State

I’ve published the notes in full, below:

From: Alycia (Piazza) Yozzi
Date: Wed, May 30, 2018 at 5:20 PM
Subject: Save the Date & Notes from the 5/29 Inter-Agency Open Government Working Group Meeting
To: US Open Government <us-open-government@googlegroups.com>, OpenGov@listserv.gsa.gov

Hello OpenGov Community,

Yesterday morning, we convened the public U.S. inter-agency Open Government Working Group meeting with civil society in the offices of General Services Administration (GSA) and launched the process to develop and ultimately publish the Fourth Open Government Partnership (OGP) U.S. National Action Plan.

Thank you to those who joined us by phone and in-person. If you could not make it we’ve captured notes and I’m including them below.

SAVE THE DATE(s) – We will be hosting 2 Co-Creation Sessions to develop the 4th U.S. National Action Plan (NAP 4) and would love to have you join us. Space is limited so please register in advance. Passcode: OpenGov2018

You can register for either:

Thursday, June 14 from 9:00 am – 12:00pm

Thursday, June 21, from 1:00 pm – 4:00 pm

https://www.eventbrite.com/e/nap-4-working-session-registration-46585789350  Passcode:OpenGov2018

RESOURCES – Here are links to a few of the key resources mentioned at the meeting:

• NAP4 Co-creation process Github repository
• OpenGov Google Group
• https://open.usa.gov/
• Independent Reporting Mechanism (IRM) Report on the Third U.S. National Action Plan

OpenGov Civil Society Meeting Minutes – 5/29/18

• Matt Lira – Special Assistant in the White House Office of American Innovation
• • This Administration is committed to open government in the United States. Today we are here to renew the process of drafting and publishing the Fourth National Action Plan.
  • Empowering American citizens to hold their government accountable is a core function of any democracy and a priority for this Administration. A core objective is to ensure that our government is efficient, effective, and accountable to the American people.
  • We view this as a whole-of-team effort. The U.S. government will have a number of offices within the State Department, the GSA, and other agencies working on the fourth OGP National Action Plan.
  • We want to hear from you – citizen engagement and public participation is a critical part of this process. To help focus these discussions, the President’s Management Agenda will serve as a guiding document for our commitments. In particular, we will look forward to your input on the following areas of interest:
  • • Modernizing Government Technology to Increase Productivity and Security
    • Leveraging Data as a Strategic Asset
    • Developing a Workforce for the 21st Century
  • Consistent with OGP’s feedback to all of its participants, we expect the fourth National Action Plan to include fewer – but more impactful – commitments relative to previous years.
• Matt Bailey – Acting Policy Unit Chief, OFCIO, OMB
• • Highlighted that the OpenGov team really wants to get agencies and civil society together for the co-creation events, especially those that are able to make commitments for the new NAP.
  • We want to be able to have frank, open discussions with the public and the agencies that will be able to implement the recommendations.
  • Save the date for 6/14 and 6/21 for the co creation events. More information coming soon. [Note that 6/14 and 6/21 are now the confirmed dates.]
    
  • Cross-agency priority goals constitute the President’s Management Agenda (PMA) which, along with previous public input will serve as the starting point for this process
• Chanan Weissman, Special Advisor, Department of State
• • Chanan provided a very brief overview of the soon-to-be released Independent Reporting Mechanism (IRM) Report on the Third U.S. National Action Plan and the status of the upcoming OGP Global Summit.
  • He thanked open gov representatives throughout the inter-agency for their feedback on the pre-publication version of the Report. Agencies provided 60 plus distinct comments, edits, clarifications, etc. back to OGP IRM researchers.
  • IRM cited three noteworthy highlights:
  • • Modernization of access to information
    • Open science
    • Police open data
  • IRM Report’s five main recommendations included:
  • • collaboration with the public,
    • fewer and more transformative commitments,
    • ethics reform,
    • service delivery and infrastructure, and
    • legislation branch involvement.
  • IRM Report information can be found online and out for release soon.
  • The OGP Global Summit in Tbilisi, Georgia on July 17-19. The last one was in Paris, France in December 2016. This year, they are streamlining the number of attendees (1000-1500 versus ~3,000 in years’ past) and limiting the number of panel discussion themes to three: anti-corruption, public service delivery, and civic participation.

Questions/Feedback

Q: There is a Google Group to share information and a Github account. Unfortunately, Github is not accessible to everyone. Can the group be sure to use the google group to share?

Yes. We will be sure to leverage the Google group to include the majority of people.

Q: Can you talk more about the OGP co-creation events?

We’d love to hear feedback on how to structure that process most effectively. We are still developing the structure but want it to be productive. Both events will be at GSA, one in the morning and one in the afternoon. We are considering ways to include folks who cannot be present in person

Regrettably, I could not attend nor participate in this public meeting due to illness, or I would have asked several questions.  Thanks to the GSA for taking these notes and circulating them online.

Whether the United States government actually follows through engaging the public almost a year later in an open process that involves that “collaboration of citizens, civil society, political and official champions and other stakeholders” is an open question that will be answered over the next month — but there’s ample reason to be skeptical, given political polarization, partisan rancor and low trust in government.

After historic regressions on open government, the Trump administration committed to continued participation in the partnership last fall, only to delay building a new plan after short, flawed public consultation.

Almost a decade ago, we saw what the Obama administration at least attempted to do with Change.gov and then the Open Government Initiative. Two government-hosted events in DC and a Github forum next month are not going to meet the more robust standards for public participation and co-creation that OGP has promulgated after years of weak consultations. The U.S. government can and must do better for this to be taken seriously by the public, press and politicians.

The Open Government Partnership was designed to be a platform that would give civil society an equal seat at the table. That means not just people voting on a pre-existing management agenda on a website or pre-populated commitments from closed workshops at agencies that require passwords to register, but getting commitments that are responsive to the great challenges that face American democracy into the plan, including ethics reforms.

In the Trump era, until we start seeing seeing federal agencies, Cabinet members, and the White House itself using social media, mobile devices, radio, and TV appearances to not only inform and engage the public but to incorporate public feedback into meaningful government reform proposals — including sitting down with journalists for interviews about the effort and its goals — unfortunately there’s little reason to trust that this newfound commitment to open government is serious.