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

This White House’s decision to continue U.S. government participation in the Open Government Partnership was far from certain, given the demonstrated distaste of the Trump administration for international agreements and institutions. In that context, The Trump administration’s commitment to participating … Continue reading

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

What’s next for open data in the United States? That was the open question posed at the Center for Data Innovation (CDI) last week, where a panel of industry analysts and experts gathered to discuss the historic open government data … Continue reading

Open government data complements FOI laws, but it cannot replace them

In March 2018, three public policy scholars posted a provocative question: could the open government movement shut the door on freedom of information? At the time, I let it flow without refuting it from the Sunlight Foundation’s platform, but it’s … Continue reading

VA rejects Freedom of Information Act request for missing open government plan

The VA is being neither open nor transparent about its missing open government plans or policies. On March 29, 2018, I made a Freedom of Information Act request to the United States Department of Veterans Affairs (VA) in which I … Continue reading

Why I’m joining the Sunlight Foundation

I won’t bury the lede on this story: today is my first day at the Sunlight Foundation as a senior analyst. I’m enormously excited to be joining an organization that’s been at the heart of a global movement towards opening governments to the people they serve with technology, from open source to open data.

If you’ve followed my writing and interests over the past decade, you know that I’m passionate about open government in all of its forms. I’ve been humbled to meet thousands of people around the world who are deeply committed to public service and improving how government functions.

This is a natural fit. From improving public access to information to civic engagement to collaboration around code to participation in democratic governance processes, from regulations to legislation, the Sunlight Foundation has been at the cutting edge of making government more open, effective and accountable.

There’s also a personal reason I made this decision: Jake Brewer, a former Sunlighter and White House staffer who we lost far too early last year, frequently urged me to to make the most of my short time on Earth. This is the right place for me to be.

Long-time readers should expect me to continue writing and participating in this role, creating acts of advocacy journalism in the public interest.

I believe that people have a right to know what is being done in their name by their elected governments. Implicit in that view is the notion that representative democracy is the worst form of government, save for all the rest. It’s up to us to protect and improve the states that we have founded and fought to preserve.

As people who have been paying close attention to Sunlight know, it’s an organization in transition. I’m proud to join up with this open government “restartup”, pitching in where ever my talents are helpful. I believe 2016 is going to be a dynamic year at Sunlight, which is why I’ve thrown in my lot with the extraordinary folks on staff.

I hope that you will continue to send your thoughts, feedback, suggestions, tips and ideas my way in the days and months to come.

Obama Administration Secretly Lobbied Against FOIA Reform In Congress

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A Freedom of Information Act lawsuit showed that the Obama administration vigorously lobbied against Freedom of Information Act reform in Congress.  The documents and correspondence, which were obtained through the Freedom of the Press Foundation’s lawsuit against the Justice Department and reported out by Jason Leopold at Vice Media, showed that the administration was literally lobbying against its own policy becoming law.

The Department of Justice’s six page memorandum shows that the agency opposed Congress making the exact language in Attorney General Eric Holder and President Obama’s 2009 memorandums on FOIA law.

The Justice Department opposing FOIA reform direct conflicts commitments made in the U.S. National Action Plan on Open Government required as part of its participation in  the Open Government Partnership.

I asked Ambassador Power how the United States can be a credible leader on open government if the White House and DoJ does this. In an alternate universe, she and the administration would respond publicly.

Unfortunately, it’s easy to predict the outcome of this news: publicly committing to open government reforms and then undermining them privately will erode abysmal levels of trust in government even more.

In the face of hypocrisy from the Justice Department on this count, the public should  call on their Senators to make the Freedom of Information Act reform legislation the House of Representatives passed in January into law.

New Freedom of Information Act Reform Bill Introduced In Congress

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On Tuesday, the U.S. House of Representatives will once again weigh reforming the Freedom of Information Act to improve how the most important open government law of the United States is honored.

The FOIA Reform Act,  authored by Rep. Darrell Issa (R-CA) is once again on the Congressional Calendar, with an additional 22 page report, H.R. 391.

According to government transparency advocate Lisette Garcia, an expert on FOIA law, the new FOIA bill (H.R. 653) was “heavily negotiated between both parties throughout the drafting stages.” She expects it to be considered in suspension of ordinary debate rules and fast-tracked with little opportunity for public input.

Garcia, who alerted us to the new bill text via email, said that Congressman Jason Chaffetz (R-CO) gave her an advance copy of the bill last December in exchange for her feedback as an experienced FOIA requester.

“Now is the time to register any objection or endorsement you may want to offer regarding any specific provisions,” she wrote.”Feedback to your representative, or any member of the Oversight Committee, may be submitted by calling the U.S. House switchboard at (202) 224-3121.”
That feedback matters because of the way that FOIA reform died in 2014.

Alert readers may recall that Congress was poised to enact historic Freedom of Information Act reforms in late 2014, only to see FOIA reform die as the press looked the other way and lobbying by the financial industry scuttled it at the last minute.

That was a huge loss for the public interest and a giant missed opportunity for public engagement around public access to public information.

Despite FOIA reform passing both Houses of Congress unanimously, the government transparency bill expired when federal agencies, including the Justice Department and the Federal Trade Agency, reportedly lobbied against the bill when it came before the House one final time and Speaker of the House John Boehner failed to put it on the legislative calendar.

The fiasco led press freedom advocates to criticize the Obama administration for failing to support making the same FOIA policy the President introduced and endorsed publicly in 2009 the law of the land.

Over the past several years, the Obama administration has committed and recommitted to modernizing how the federal government complies with the Freedom of Information Act for years.

On the one hand, there has been progress on a new website for requests and pilot projects for ‘release to one, release to all’ policies. The administration has also released  vast amounts of public data online and used technology to inform and engage the public in governance and science in unprecedented ways, from crowdsourcing and challenges to social media.

On the other, there’s a gap between what the Obama administration says about open government and how it follows through when informed members of the public ask tough questions.

The “presumption of openness” presented with such hope on the first day of President Barack Obama’s presidency in 2009 hasn’t led to the change that the public wished to see in 2016.

Researchers at the FOIA Project at Syracuse University found last week that there was a record number of pending FOIA lawsuits in 2015.

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FOIA reform may face higher barriers to passing in the 114th Congress, but it’s more sorely needed than ever.

Here’s one way to give it some more attention. At the end of 2015, the Obama administration outlined 45 different ways it’s working to make the U.S. government more open and accountable to the people it serves.

If the White House intends to fulfill the open government promise it made in January 2009, President Barack Obama could start by adding a single sentence endorsing FOIA reform in Congress during his final State of the Union speech tomorrow night, making the “presumption of openness” law.

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If President Obama still believes that he has led the “most transparent administration in history,” maybe it’s time to ask the public and Congress to make his public policies permanent so that the next inhabitant of the People’s House cannot easily reverse them.

Updates: 

  1. Yes, FOIA is still broken, but for more reasons than you might think. 

    The Washington Times and The Blaze  reported on today’s House Oversight Committee’s report, which lambasted the Obama administration’s handling of FOIA requests as “hobbled” and “broken.”What both publications left out — along with Congressman Issa, who wrote an op-ed in the Daily Caller about the FOIA Oversight and Implementation Act he sponsored — is important. As the Wall Street Journal reported in 2013 and the New York Times reported today, the private sector is a huge user of this open government law. Consulting groups and hedge funds use FOIA requests for business intelligence.

    In fact, according to a 2015 study by Margaret B. Kwoka, an assistant professor at the University of Denver Sturm College of Law, cited by the Times, commercial resellers of data make the majority of FOIA requests at some federal agencies: 75%+ at the FDA, 9% at the Defense Logistics Agency.

    In theory, a “release to one, release to all” policy would address this issue, if FOIA officers and agencies worked to reconcile it with complementary efforts to proactive disclosure of open data online across the federal government — and the Department of Justice was willing to hold agencies and itself to a higher standard.

  2. This reform could weaken the current Freedom of Information Act.
    While they’re supportive of the core reforms that are preserved from the original FOIA Reform Act, open government advocates are decrying the addition of new language that would exempt the U.S. intelligence community from certain provisions of the Freedom of Information Act, including the consultation process that the bill would create.

    Yep: this FOIA reform bill could enable a vast portion of the federal government to be more secretive, not less.

    “The changes to the House FOIA bill, added as a result of a last-minute demand of HPSCI, is a pattern that is becoming all too familiar and objectionable” said Patrice McDermott, the executive director of OpenTheGovernment.org, in a statement.

    “The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government.”

  3. FOIA reform passed the House but the bill is not law yet.

     The Hill reported that the House is poised to approve the FOIA reform bill on Tuesday, Jan.12.

    In fact, the House moved to consider H.R. 653 “as amended” on Monday night, under suspension of the rules, and passed the bill under voice vote.

    Now that the House has passed FOIA reform (again), it’s on to the Senate.

 

U.S. Civil Society Groups release model National Open Government Action Plan

This is the week for seeking feedback on open government in the United States. 4 days ago, the White House published a collaborative online document that digitized the notes from an open government workshop held during Sunshine Week in March. Today, Abby Paulson from OpenTheGovernment.org uploaded a final draft of a Model National Action Plan to the Internet, as a .doc. I’ve uploaded it to Scribd and embedded it below for easy browsing.

Nelson shared the document over email with people who contributed to the online draft.

Thank you so much for contributing to the civil society model National Action Plan. The Plan has made its way from Google Site to Word doc (attached)! We will share these recommendations with the White House, and I encourage you to share your commitments with any government contacts you have. If you notice any errors made in the transition from web to document, please let me know. If there are any other organizations that should be named as contributors, we will certainly add them as well. The White House’s consultation for their plan will continue throughout the summer, so there are still opportunities to weigh in. Additional recommendations on surveillance transparency and beneficial ownership are in development. We will work to secure meetings with the relevant agencies and officials to discuss these recommendations and make a push for their inclusion in the official government plan. So, expect to hear from us in the coming weeks!

National Security Archive finds 40% E-FOIA compliance rate in federal government agencies

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For Sunshine Week 2015, the National Security Archive​ conducted an audit of how well 165 federal government agencies in the United States of America comply with the E-FOIA Act of 1996. They found that only 67 of them had online libraries that were regularly updated with a significant number of documents released under the Freedom of Information Act. The criteria for the 165 agencies were that they had to have a chief Freedom of Information Officer and components that handled more than 500 FOIA requests annually.

Almost a decade after the E-FOIA Act, that’s about a 40% compliance rate. I wonder if the next U.S. Attorney General or the next presidential administration will make improving on this poor performance priority. It’s important for The United States Department of Justice​ to not only lead by example but push agencies into the 21st century when it comes to the Freedom of Information Act.

It would certainly help if Congress passed FOIA reform.

On that count, the Archive highlights a relevant issue in the current House and Senate FOIA reform bills in Congress: the FOIA statute states that documents that are “likely to become the subject of subsequent requests” should be published electronic reading rooms:

“The Department of Justice’s Office of Information Policy defines these records as “frequently requested records… or those which have been released three or more times to FOIA requesters.” Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law. Troublingly, both the current House and Senate FOIA bills include language that codifies the instructions from the Department of Justice.

The National Security Archive believes the addition of this “three or more times” language actually harms the intent of the Freedom of Information Act as it will give agencies an easy excuse (“not requested three times yet!”) not to proactively post documents that agency FOIA offices have already spent time, money, and energy processing. We have formally suggested alternate language requiring that agencies generally post “all records, regardless of form or format that have been released in response to a FOIA request.”

This is a point that Members of Congress should think through carefully as they take another swing at reform. As I’ve highlighted elsewhere, FOIA requests that industry make are an important demand signal to show where data with economic value lies. (It’s also where the public interest tends to lie, with respect to FOIA requests from the media.)

While it’s true that it would take time and resources to build and maintain a system that tracks such requests by industry, there should already be a money trail from the fees paid to the agency. If FOIA reform leads to modernizing how it’s implemented, perhaps tying FOIA.gov to Data.gov might finally take place. The datasets are the subject of the most FOIA requests are the ones that should be prioritized for proactive disclosure online.

Adding a component that identifies which data sets are frequently requested, particularly periodically, should be a priority across the board for any administration that seeks to “manage information as an asset.” Adding the volume and periodicity of requests to the expanding national enterprise data inventory might naturally follow. It’s worth noting, too, that reform of the FOIA statute may not be necessary to achieve this end, if the 18F team working on modernizing FOIA software worked on it.