US government officials and Congressmen praise open government during Sunshine Week in DC

Celebrating Sunshine Week is off to a good start in the nation’s capitol, but not without some shadows along the way.

So far, the public has heard robust defenses of the role of access to information and journalists in our democracy on a national Freedom of Information Day conference at the Newseum, and a forum on open government at the National Archives that included reflections from all three branches. I attended both events in person. I didn’t go over to the Justice Department, where Principal Deputy Associate Attorney General Jesse Panuccio gave a speech at the agency’s Sunshine Week kick-off, but I did hear that he criticized unnamed groups whose requests are “straining the system.”

“Some groups have turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking,” he said. ”Immediate litigation has become a feature of FOIA administration rather than a last resort, and the result is often that large and complex requests by institutional actors are moved, by court order, ahead of requests by average citizens.”

Panuccio said that he sent a a memorandum to all agency General Counsels and Chief FOIA Officers stressing that “improving FOIA performance requires the active participation of agency Chief FOIA Officers.” The Department of Justice has not disclosed the memorandum yet.

Here’s else what I saw, heard, and learned so far on Sunshine Week in 2019.

Freedom of Information Day 2019

Embedded above is a Twitter thread on Freedom of Information Day thread on Freedom of Information Day, which included an impassioned speech celebrating the press by House Oversight Committee Chairman Elijah Cummings and encouragement to journalists.

In an age where far too many politicians are attacking the press, it was a powerful benediction from a preacher’s son. The following text is a rough paraphrase of Cummings’ remarks, not an official transcript. You can watch video of the entire event, including his speech, on CSPAN, which is in of itself a great example of government transparency.

200 years from now, people will be reading about this period in history.

They will ask: when you saw the press being suppressed, a White House that blocked info from getting to people’s reps, a President who sent memos to career employees telling them they could not be whistleblowers, they’re going to ask what did you do? What did you do? Did you stand on the sidelines? Did you say it was someone else’s business? Did you write the story? Did you take a moment to write the editorial? Did you become fearful?

I view an attack on our press as an attack on all of us, and I will fight with everything I’ve got. And I want you to understand that I’ve got your back. I am the son of 2 Pentecostal ministers. In my house, a lie was a lie and the truth was the truth. We cannot allow fake information to become the norm. And you are the guardians of our freedom of the press. You are the ones who are in guerrilla warfare trying to get info out.

That’s why it’s so critical for Congress to protect your rights and people throughout the nation to get information through FOIA. People want to hold Trump accountable, but how can you hold him accountable if you don’t have information? If you have a secret meeting with Putin & no one knows about it?

Come on now: We’re better than that. If you block information, it’s impossible to have accountability. FOIA is critical to help the American people understand the decisions being made by their government. It is also crucial to understanding who is making those decisions and how they will affect their daily lives.

One of our top priorities this Congress is to investigate agency compliance with FOIA & evaluate how we can improve the law. “Never mistake a comma for a period.”

Things can always be improved upon. I hope Republicans will work with us in a bipartisan manner. It took us 3 years of hard work, with the help of many, & I thank you, & negotiation, & then with the help of Senator John Cornyn and Senator Leahy, we got it over the finish line. The FOIA Improvement Act is a prime example of how Congress can work together.

This week’s Freedom of Information hearing will have the EPA, Department of the Interior and The Justice Department. I invited The Justice Department because they’re in charge of ensuring compliance with the FOIA. In my opinion, they must do a much, much, much better job. At EPA, FOIA requests sent through political appointees and “Deep 6’ed.” Certain FOIA requests were deliberately delayed. That’s why Congress needs to conduct oversight, to shed a light. Secretary Ross will be coming before House Oversight to testify about how citizenship question was added to the 2020 Census.

As Oversight Chairman, my immediate responsibility is to do this kind of oversight. That work helps us to develop reforms for the future. You are so important. You are more important than you know.

I beg you to tear down any walls that might block you from getting info to the American people that they need to know. Stand up for strong FOIA law. Work with us. Don’t be silent.

I want our grandchildren to know that we stood up for this democracy. That we, all of us, had great respect for the people who created the Constitution. That we decided to be about freedom of the press & getting the information out. We are at a critical moment in our country’s history. I am so glad that you have been called to this moment to be the guardians of our information and the flow of our information.

Sunshine Week at the National Archives

Embedded below is a tweeted thread from the National Archives Sunshine Week event, including Judge Howell, discussion with federal FOIA ombudsman staff, and a livetweet of Senator Patrick Leahy’s comments. Video of the entire event is embedded above.

The National Archives subsequently wrote about celebrating Sunshine Week on its website.

Leahy, who subsequently tweeted out a transcript of his remarks, observed that ”the list of threats to transparency under the Trump administration goes on, and expands far beyond just FOIA itself.”

“President Trump’s ongoing, opaque ties to his business organization make it impossible to know whether foreign governments and corporations are able to curry favor with him by spending money on his business,” the senator said. “The Trump administration has also issued an unprecedented number of lobbyist waivers to its appointees in secret – preventing the public from knowing whether Trump agency officials are simply continuing their advocacy on behalf of special interests in their official capacities.”

Senator Cornyn, a former judge and Texas attorney general, also spoke to the value of open government but not posted a transcript yet. He did tweet about his visit, stating that “Government transparency is the cornerstone of democracy. I’m proud to have passed the #FOIA Improvement Act and will continue to push for policies that ensure our government remains accountable to we the people.

As I tweeted from the event, I learned the FOIA was amended in 1974 to include sanctions against individual federal agency employees, as noted in this 2013 paper on enforcing the public’s right to access information, after Ralph Nader suggested it:

I also confirmed that the Justice Department hasn’t ever sanctioned any U.S. government officials or staff for violating FOIA under the amended statute. The fact that sanctions for violating government access laws are almost never applied at any level of government might shed some sunlight on why the state of compliance with public records laws not just in the US government but around the USA.

If FOIA officers and appointees faced fines or even jail time for obstructing disclosures under the law, we might see more of a normative shift towards the “openness by default” described in the FOIA statute. Unfortunately, the Department of Justice’s Office of Information Policy does not show any inclination to do more than encourage agencies to comply and praise those that do.

Sunshine Week in the People’s House

Earlier today, the Oversight Committee released a fact sheet that documents various aspects of the Trump administration record of secrecy.

Tomorrow morning, the public will see what Sunshine Week looks like in the House of Representatives, when the Oversight Committee holds a hearing on FOIA and transparency, followed by a  hearing with Commerce Secretary Wilbur Ross on Thursday “to determine why he and other Trump Administration officials gave misleading testimony about how the citizenship question was added to the Census, which has been deemed ‘unconstitutional and a violation of federal statute‘ by two federal judges.”

Whether more sunshine disinfects secrecy and corruption remains to be seen, but more public information about how public power is being wielded will inform both the public and their representatives in Congress. On Sunshine Week, that’s a good start.atch

Shadows and celebrations for Sunshine Week 2019

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Sunshine Week 2019 may officially begin on March 10, but it’s unofficially kicking off tomorrow with the National Freedom of Information Day Conference at the Newseum in DC.

For those unfamiliar with this annual celebration of open government around the United States, Sunshine Week was founded over a decade ago by the American Society of Newspaper Editors, who now support it with the Reporters Committee for Freedom of the Press.

Sunshine Week always falls around President James Madison’s birthday on March 16. Madison is generally regarded as the forefather of open government in the United States, as evidenced by this memorable letter in 1822:

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“Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives,” he wrote.

In 2018, the “information darkness” of the Trump administration led to ignominy, from the Electronic Frontier Foundation’ “Foilies” to the Society for Professional Journalists’  Black Hole Award to the National Security Archives’ Rosemary Awards.

In 2019, transparency and accountability have taken on additional context during the Trump administration, which has continued to be allergic to transparency, rife with conflicts of interest, and hostile to the essential role journalism plays in a democracy. When the President of the United States repeatedly calls journalists “the enemy of the people,” a disinformation virus is weakening our body politic.

Despite the enactment of a historic open government data bill, the state of open government (data) remains divided, at risk, and underfunded in the United States.

After years of delays and democratic regression, the US government released a weak open government plan for the Open Government Partnership that was not responsive to the demands of this moment. The Open Government Partnership’s researchers found backsliding in the USA

Representative Elijah Cummings, D-Md, and Senators Chuck Grassley, R-Iowa, Patrick Leahy, D-Vt., and John Cornyn, R-Texas, recently sent a stern letter to the Interior Department reprimanding the agency for its efforts to weaken its FOIA regulations and urging it to reconsider the rule change. The proposed rule changes which garnered more than 65,000 comments – include allowing the DOI to preemptively reject what it defines as “unreasonably burdensome” requests, the possibility of imposing a monthly limit to the number of either pages or requests from a single requester the agency will process, and a host of other changes that may make it more difficult to obtain fee waivers and expedited processing.

The bipartisan group of lawmakers, all seasoned FOIA champions, told the Interior Department, “We write to express significant concern with the rule recently proposed by the Department of the Interior (DOI) concerning its Freedom of Information Act (FOIA) procedures. The proposed rule appears to restrict public access to DOI’s records and delay the processing of FOIA requests in violation of the letter and spirit of FOIA. The American people have the right to access information from DOI, and the proposed rule needlessly encroaches on that right.”

The context for oversight of open government at the national level for this year, however, is different. 2018 midterm elections delivered a 116th Congress that brought with it a commitment to oversight that was sorely lacking in the last session. A core element of that oversight has been public hearings that hold public officials and corporate executives accountable for their service or services.

That will continue next week, when, as has been the tradition in past years, the U.S. House Oversight Committee will be holding a hearing during Sunshine Week in 2019, considering the Freedom of Information Act and transparency under the Trump administration.

There will be many other Sunshine Week events around DC as well. The Department of Justice’s awards for FOIA officers. The National Archives celebrating the 10th anniversary of the Office of Government Information Services (aka the federal FOIA ombudman) during the day on March 11. That night, there will be a panel discussion on how to obtain and improve coverage of climate data at the National Press Club hosted by its Journalism Institute and Freedom of the Press Committee.

There will be a DC Open Government Summit and a forum on science in the Trump era put on by the Government Accountability Project, the Union of Concerned Scientists, and the Sunlight Foundation’s Web Integrity Project on the evening of March 12.

Despite the threats to American democracy at the federal level and ongoing challenges to open government in the states and cities, there’s still much to celebrate in 2019.

The free press, independent judiciary, and watchdog organizations have continued to provide transparency when elected officials and civil servants have tried to make decisions in secrecy, shedding light on corruption, fraud, waste, abuse and incompetence.

Their combined efforts to bring in sunshine in government across American civil society have been a bulwark against tyranny and corruption in the United States and around the world. Thank you to everyone who continues to support, defend and extend the public’s right to know in the 21st century.

Open Government Partnership IRM finds backsliding in the USA

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After years of delays and democratic regression, USA releases weak open government plan

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The state of open government (data) remains divided, at risk, and underfunded

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President Trump signs historic open government data bill into law

Today, President Donald J. Trump signed H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2018, which, as the White House release summarized, “improves evidence-based policy through strengthening Federal agency evaluation capacity; furthering interagency data sharing and open data efforts; and improving access to data for statistical purposes while protecting confidential information.”

Back on December 21, 2018, the United States Congress sent the Foundations for Evidence-Based Policymaking Act of 2017 to the President’s pen in a historic win for open government in the United States of America.

The Open, Public, Electronic, and Necessary Government Data Act (AKA the OPEN Government Data Act) is now the law of the land.

Two canonical principles for open, digital government in the 21st century are now the default in the United States:

  1. public information should be open by default to the public in a machine-readable format, where such publication doesn’t harm privacy or security
  2. federal agencies should use evidence when they make public policy

As I’ve said before, this reform represents “a genuine opportunity to not only improve how the nation makes decisions but embed more openness into how the federal government conducts the public’s business.”

This is a historic, bipartisan win for open government data, after years of trying. It is a milestone for the open movement, codifying core principles into code.

Thank you to all of the advocates, legislators, watchdogs and journalists who played an essential role in making open government data the law of the land.

Open Government Partnership places United States under review

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When the Trump administration committed to participating in the Open Government Partnership in September 2017, it surprised watchdogs and transparency advocates. When it delayed releasing a new plan one month later, it came as no surprise, given the administration’s clouded record in its first year and regression on anti-corruption programs, reforms, and policies.

The White House Office of Management and Budget has been silent for four months after it missed a second, key deadline for submitting new United States National Action Plan for Open Government for the Open Government Partnership after it convened workshops and an online forum in 2017 and 2018.

The leadership of the Open Government Partnership has now confirmed that the United States is under review after it has failed to deliver commitments in good faith for two years.

“Having failed to submit an Action Plan by 12/31, the US will automatically be placed under ‘Review’ for procedural violations,” tweeted Nathaniel Heller, co-chairman of the Open Government Partnership. “That Review process can ultimately lead to being rendered ‘Inactive’ in OGP, or resolved with the eventual submission of a NAP in the coming months.

In followup tweets, Heller clarified that there is now a strong precedent that, if a country fails to deliver the NAP during the Review period (here, Aug 2019), the Steering Committee would be very likely to agree to inactivity.

Aidan Eyakuze, co-chairman of the OGP Criteria and Standards subcommittee, clarified the next steps in a 5-part series of tweets, which add up to the following statement, condensed.

“The United States did not deliver an Open Government Partnership Action Plan (NAP) by the December 31, 2018 deadline. This delay means the US has not delivered an Action Plan for two consecutive cycles. As a result, the US will be placed under review by the Open Government Partnership Criteria & Standards subcommittee (C&S). This review process involves enhanced support by C&S, the Open Government Partnership Support Unit and the full Open Government Partnership Steering Committee to resolve issues that have delayed the submission of the NAP. The US will continue to be a full member of Open Government Partnership as the review process progresses, and a NAP for 2019 – 2021 is expected by August 31, 2019. If a NAP is not submitted by this date, C&S may consider recommending to the full Open Government Partnership Steering Committee that the US be designated as inactive.”

The consequence of missing the deadline are unclear.

On the one hand, the shadowed record on good government and “information darkness” of the Trump administration and has been well-documented by journalists and nonpartisan watchdogs. On the other, Republicans still believe that this is an open and transparent administration.

“In the summer of 2018, an increasing proportion of the American public now tells Pew Research that President Trump “has definitely or probably not run “an open and transparent administration.” But there also has been an increase in the proportion of people who think that Trump definitely has done so, likely in part because the president has made that claim repeatedly.

In fact, in 2018 more Republicans now say Trump has run an open and transparent administration, over a time period when his administration’s record on open government if anything, grew worse in its second year: secretive, corrupt, hostile to journalism and whistleblowers, mired in scandal, shadowed by foreign entanglements, and characterized by false and misleading claims made to the public by a president whose tangled relationship with the truth is unprecedented in American history.”

As with President Trump’s corruption, his administration’s failure to deliver a new plan for open government and commit to democratic governance should speak for itself.

But in our age of partisan polarization and presidential disinformation, the news that the Trump administration failed to deliver new commitments on open government is likely to be dismissed by supporters and buried behind the President’s prime time address on immigration tonight, particularly if he invokes the emergency powers of his office. The public deserves better.

Congress votes to make open government data the default in the United States

On December 21, 2018, the United States House of Representatives voted to enact H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2017, in a historic win for open government in the United States of America.

The Open, Public, Electronic, and Necessary Government Data Act (AKA the OPEN Government Data Act) is about to become law as a result. This codifies two canonical principles for democracy in the 21st century:

  1. public information should be open by default to the public in a machine-readable format, where such publication doesn’t harm privacy or security
  2. federal agencies should use evidence when they make public policy

For the full backstory on what’s in the bill and how it came to pass, read yesterday’s feature.

It’s worth noting that last minute objection did result in two amendments that the Senate had to act upon. Thankfully, on Saturday, December 22nd, the Senate acted, passing the resolution required to send the bill onwards to the president’s desk.

Here’s what changed: First, the text of Title I was amended so that it only applied to CFO Act agencies, not the Federal Reserve or smaller agencies. Title II (the Open Government Act) still applies to all federal agencies.

Second, there was a carve out in Title I “for data that does not concern monetary policy,” which relates to the Federal Reserve, among others.

 

While the shift weakened the first title of the bill a bit, this was still a historic moment: Congress has passed a law to make open data part of of the US Code.

While the United States is not the first or even the second democracy to pass an open data law –  France and  Germany have that distinction – this is a welcome advance, codifying the open government data policies, practices, roles and websites (looking at you, Data.gov) that the federal government had adopted over the past decade.

Open government activists, advocates and champions continue to celebrate, online and off.

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“The bipartisan passage of the Foundations for Evidence-Based Policymaking Act is a significant step toward a more efficient, more effective government that uses evidence and data to improve results for the American people,” said Michele Jolin, CEO and co-founder of Results for America, in a statement. “We commend Speaker Ryan, Senator Murray and their bipartisan colleagues in both chambers for advancing legislation that will help build evidence about the federally-funded practices, policies and programs that deliver the best outcomes. By ensuring that each federal agency has an evaluation officer, an evaluation policy and evidence-building plans, we can maximize the impact of public investments.”

“The OPEN Government Data Act will ensure that the federal government releases valuable data sets, follows best practices in data management, and commits to making data available to the public in a non-proprietary and electronic format,” said Daniel Castro, in a statement. “Today’s vote marks a major bipartisan victory for open data. This legislation will generate substantial returns for the public and private sectors alike in the years to come.”

“The passage of the OPEN Government Data Act is a win for the open data community”, said Sarah Joy Hays, Acting Executive Director of the Data Coalition, in a statement. “The Data Coalition has proudly supported this legislation for over three years, along with dozens of other organizations. The bill sets a presumption that all government information should be open data by default: machine-readable and freely-reusable. Ultimately, it will improve the way our government runs and serves its citizens. This would not have been possible without the support of Speaker Paul Ryan (WI-1-R), Senators Patty Murray (WA-D), Brian Schatz (HI-D), Ben Sasse (NE-R), and Rep. Derek Kilmer (WA-6-D). Our Coalition urges the President to promptly sign this open data bill into law.”

Congratulations to everyone who has pushed for this outcome for years.

[Image Credit: Sunlight Foundation]

This post has been updated, and corrected: France was ahead of Germany in enacting an open data law.