[STAT] State Department employees made .004% of email sent in 2013 into public records

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According to a new report from U.S. Department of State’s Office of the Inspector General, agency employees sent more than 1 billion emails, of which they made just 41,649 of them into public records.

That’s about 0.004% of them, by my rough calculation.

It’s a minuscule number, which probably why The Daily Beast ran a post reporting “only .00006% of State Department emails are preserved.”

While their calculation looks off by orders of magnitude, this tiny percentage still translates into members of the civil and foreign service entering almost none of their emails into archiving systems.

While the story hardly need it, this adds more interesting context to former Secretary of State Hillary Clinton’s decision to designate roughly 50% of her personal email as public records.

As Sunlight Foundation policy director John Wonderlich commented in Politico, this IG report undermines her argument that her emails with State Department workers were preserved on their end.

“Her justification around FOIA requests and around preservation became that most of the documents were cc’d or sent to .gov or state.gov addresses used by employees and therefore were preserved and accessible to requests, ” said Wonderlich “This [report] suggests that is not reliable at all.”

For more, read Josh Gerstein report exploring the broader ramifcations of the watchdog report on Clinton’s defense at greater length.

Could Hillary Clinton’s email account galvanize Congress to pass FOIA reform?

IMG_1992It’d be swell if the flap over former Secretary of State Hillary Clinton’s personal email account catalyzed the passage of Freedom of Information Act reform in Congress. Trevor Timm, executive director of the Freedom of the Press Foundation, laid out a strong case in the Guardian today for why both sides of the aisle should support reform:

Instead of both parties competing over who can be more secretive, like they did in the 2012 presidential campaign, this is also a great opportunity for 2016 presidential candidates to debate about who can deliver the most transparent White House. That doesn’t mean just voluntarily releasing emails you want the public to see – though that’s a start – but implementing lasting policy changes and laws that will change the trajectory of US secrecy law, which has grown out of control in the past decade.

The challenge is that the interests that didn’t want that reform to happen, both inside and outside of government, aren’t going to go away, from the financial industry to government agencies.

As readers no doubt recall, FOIA reform bills passed the U.S. Senate and House *unanimously* last year and yet failed to become law.

The pushback is already (quietly) happening in Congress, as reported last week in E&E publishing:

“I think a number of the agencies are probably concerned. This is the impression that I get: They think that you shouldn’t have this presumption that things should be revealed. In other words, there should be more of a screening process,” [Representative Elijah] Cummings said. “It’s hard for them to just come outright and say, ‘No, we don’t like that, we’re not going to do it.’ But I get that impression that they don’t feel that people need to have access to every record.”

Asked whether he or other lawmakers have heard from agencies regarding his bill, Cummings said their concerns about FOIA are more subtly made to Congress.

“In general, in general. But I don’t think it’s a big push, but that’s just the impression I get,” said the ranking member on the House Oversight and Government Reform Committee.

That doesn’t mean that reform won’t happen, or that it couldn’t be a political winner for members of both parties, particularly Republican Senators who aspire to higher office. This year, editorial boards are more outspoken on the issue and transparency could, once again, be a campaign issue. Here’s hoping that’s enough to lead to Congress enacting FOIA reform the country needs, not a watered down bill.

In a step towards sunlight, United States begins to publish a national data inventory

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Last year, a successful Freedom of Information request for the United States enterprise data inventory by the Sunlight Foundation was a big win for open government, nudging Uncle Sam towards a better information policy through some creative legal arguments. Today, the federal government started releasing its enterprise indices at data.gov. You can browse the data for individual agencies, like the feed for the Office for Personnel Management, using a JSON viewer like this one.

“Access to this data will empower journalists, government officials, civic technologists, innovators and the public to better hold government accountable,” said Sunlight Foundation president Chris Gates, in a statement. “Previously, it was next to impossible to know what and how much data the government has, and this is an unprecedented window into its internal workings. Transparency is a bedrock principle for democracy, and the federal government’s response to Sunlight’s Freedom of Information request shows a strong commitment to open data. We expect to see each of these agencies continue to proactively release their data inventories.”

Understanding what data an organization holds is a critical first step in deciding how it should be stored, analyzed or published, shifting towards thinking about data as an asset. That’s why President Barack Obama’s executive order requiring federal agencies to catalog the data they have was a big deal. When that organization is a democratic government and the data in question was created using taxpayer funds, releasing the inventory of the data sets that it holds is a basic expression of open and accountable government.

With hours of sunshine left, passage of FOIA reform in the U.S. House hangs in the balance

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Update: The House Majority Leader didn’t put S.2520 on Thursday’s legislative calendar (PDF). Per Congress.gov, it was “held at the desk.” We can’t pronounce it dead until 3:30 PM, as the Speaker of the House could bring the bill up by unanimous consent, but FOIA reform in this Congress likely just expired at midnight.

Imagine if an important reform to public access to government information hung in the balance in the United States Congress and the editorial boards of the country’s major newspapers ignored it. Unfortunately, that’s exactly what has happened. Only a few weeks ago, it looked this ‘do nothing Congress’ was actually set to do something: pass much-needed reforms to the Freedom of Information Act. Over the weekend, an unexpected hold in the Senate by Senator Jay Rockefeller put months of bipartisan collaboration in jeopardy. If the U.S. House of Representatives doesn’t schedule a vote tomorrow on the Freedom of Information Improvement Act that passed the Senate on Monday, however, FOIA reform will quietly expire.

Senator Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, is urging the House to pass the bill before the 113th Congress ends.

“This legislation is all about government transparency. If House Republicans want this administration to be more accountable, then they must put it on the suspension calendar without delay. Let’s get it done,” Leahy said. “With the sun about to set on this congressional session, the House should not leave this sunshine bill undone, on the table.  Time is quickly running out, and the House must act without further delay.

Representative Darrell Issa (R-CA), the chairman of the House Oversight and Government Reform Committee, and Ranking Member Representative Elijah Cummings (D-MD) have also called on the House to pass the Freedom of Information Act (FOIA) Improvement Act and send it to President Barack Obama after its unanimous passage in the Senate.

“The FOIA Improvement Act will strengthen FOIA, the cornerstone open government law,” Issa and Cummings said, in a joint statement.  “The House unanimously passed companion legislation, H.R. 1211, earlier this year.  The FOIA Improvement Act is a bipartisan bill that, after last night’s passage by the Senate, deserves to be taken up by the House and sent to the President.”

Given that FOIA reform passed the U.S. House unanimously 410-0 in February, why aren’t Speaker of the House John Boehner and Minority Leader Representative Nancy Pelosi bringing S.2520 to a vote? One source tells me that banks have sent lobbyists to the offices of House Financial Services members to oppose the FOIA reform and have told staff there that proprietary regulatory information could be released under the bill. FreedomInfo.org is also reporting that banking lobbyists are opposing the FOIA reform bill. This rumored pressure is in addition to the pressure of the same federal agencies that lobbied against the bill in the Senate.

A similar argument was made in the Senate, and it’s by all accounts a bogus one: Exemption 8 of the FOIA provides protection against such disclosure and the “foreseeable harm” standard embraced by this reform would not result in the release of such regulatory records,  given that there would be a clear foreseeable harm in their release. As FreedomOfInfo.org notes, “the Senate committee report includes lengthy language underscoring the importance of protecting financial information”:

 The paragraph secured support for the bill by the chairman of the Senate Banking Committee, Sen. Tom Johnson (D-SD), sources said. The relevant section of the report begins with a caution: “Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” The quote is from the FOIA.

The report language (minus footnotes) continues:

Currently, financial regulators rely on Exemption 8, and other relevant exemptions in Section 552(b), to protect sensitive information received from regulated entities, or prepared in connection with the regulation of such entities, in fulfilling their goals of ensuring safety and soundness of the financial system, compliance with federal consumer financial law, and promoting fair, orderly, and efficient financial markets. Exemption 8 was intended by Congress, and has been interpreted by the courts, to be very broadly construed to ensure the security of financial institutions and to safeguard the relationship between the banks and their supervising agencies. The D.C. Circuit has gone so far as to state that in Exemption 8 Congress has provided “absolute protection regardless of the circumstances underlying the regulatory agency’s receipt or preparation of examination, operating or condition reports.” Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts.

There’s a lot at stake here, and almost no time on the legislative clock. It is, as Sean Vitka wrote for the Sunlight Foundation wrote today, literally do-or-die time for FOIA reform. It’s crunch time. It’s now or (almost) never: if Speaker of the House John Boehner doesn’t bring the bill up for a vote by unanimous consent today, the process begins again in the next Congress, but without key sponsors of the FOIA reforms in the House and Senate occupying the chairs of committees.

“For all of his talk about the desire of House Republicans to hold the Obama Administration accountable, we are shocked and angered that Speaker Boehner would decide to allow a bill that strengthens and reforms the Freedom of Information Act (FOIA) die without a vote,” said Danielle Brian, chair of OpenTheGovernment.org and executive director of the Project On Government Oversight, in a statement. “S.2520 is a critical bill that strengthens the FOIA watchdog, the Office of Government Information Services, and would force agencies to finally deliver the levels of transparency that the Administration promised on their first day in office in 2009. We call on Speaker Boehner to do the right thing for the American public and call for a vote on S.2520 before the House leaves for the year.”

Update: On Thursday morning, when he was asked about FOIA reform at a press conference, Speaker Boehner said that “I have no knowledge of what the plan is for that bill.”

“We are particularly concerned that Speaker Boehner has now said that he has ‘no knowledge of the plan’ to pass the bipartisan, bicameral FOIA reform bill,” said Brian, in response. “If accountability and making the federal government answer to the public is really a priority for the Republican Caucus, passing this bill should be a priority. The House passed the House companion bill 410 – 0. The Senate passed the bill by unanimous consent after the open government community waged an all-out war against a last second attempt by the Federal Trade Commission (FTC) and other independent agencies that are supposed to be on the public’s side to stop the bill. It’s up to Speaker Boehner to put this bill to a vote and create the levels of open government the public needs.”

If the people’s right to know what their government does in their name matters to you, please let your Member of Congress know that FOIA reform matters to you, and let the Speaker of the House know. You can email the Speaker directly through OpenCongress, call him up at (202) 225-6205 and tweet him @SpeakerBoehner. Even if the press won’t represent itself and the people by asking Congress to support the free flow of government information, you can.

Update: FOIA reform failed to pass in the 113th Congress. As Newsweek reported, in an opaque move, Speaker Boehner tabled the government transparency bill. It was never brought up for a vote in the House. Unless the Speaker reconvenes the House, the FOIA bill is likely dead.

“…the fact that the bill was very close and was tabled because of the influence of lobbyists that found a problem in the legislation that didn’t even exist is frustrating not only for those who wanted the bill to pass but for those who want the American democratic process to be a shining light for the world – not an embarrassment,” wrote Scott A. Hodes, at the FOIA Blog.

“For all of his talk about his desire to hold the Obama Administration accountable, we find it unfathomable that that Speaker John Boehner would allow a bill that strengthens and reforms the Freedom of Information Act (FOIA) to die without a vote,” said Danielle Brian.

In reaction, Senator Leahy made the following statement:

“I am deeply disappointed that last night the House failed to pass the FOIA Improvement Act. This bipartisan bill was reported unanimously by the Senate Judiciary Committee last month, and it was the product of months of hard work by Senator Cornyn and me. Our bill is supported by more than 70 public interest groups that advocate for government transparency and it passed out of the Senate unanimously. I would think that members of the House Republican leadership, who have spent so much time on oversight of the Obama administration, would support the goal of making government more accountable and transparent. But instead of supporting this bill, they have chosen secrecy over sunlight.

“The FOIA Improvement Act would codify what the President laid out in his historic executive order in 2009 by requiring Federal agencies to adopt a ‘Presumption of Openness’ when considering the release of government information under FOIA. This bill would require agencies to find a foreseeable harm if they want to withhold information from the public. Prioritizing the people’s interest in what their government is doing, our bill will reduce the overuse of exemptions to withhold information. Federal agencies have been required to apply this standard since 2009. They also used this same standard during President Clinton’s terms in office. It was only during President George W. Bush’s term of secrecy that this standard was rolled back. It appears the House leadership wants to return to that era. It should not matter who is in the White House, information about what their government is doing belongs to the people.

“In a political climate as divided as this, I had hoped that we could come together in favor of something as fundamental to our democracy as the public’s right to know. That government transparency and openness would not just be the standard applied to the Obama Administration but what is applied to every future administration. The FOIA Improvement Act would have done just that.”

Postscript: Writing for the Sunlight Foundation, Matt Rumsey published a sunny post about the death of FOIA reform.

Sunlight has been strongly supportive of the FOIA Improvement Act because it addresses real world problems faced by requesters every day, specifically targeting overly broad exemptions and limiting unnecessary fees. Just like Sen. Patrick Leahy, D-Vt., one of its strongest champions, we aredisappointed that it did not become law.

And yet, we are hopeful for the future.

Most laws never make it out of committee even after repeated attempts spread over multiple years. The FOIA Improvement Act came tantalizingly close to becoming law its first time around.

Rest assured that the FOIA Improvement Act will be reintroduced in the 114th Congress and that the Sunlight Foundation and its allies will be fighting harder than ever for its passage. We want to say a hearty thank you to Leahy, Sen. John Cornyn, R-Texas, and everyone else that worked so hard during the 113th Congress to make these needed reforms possible. We’ll see you next year!

The Washington Post, to its credit, did a post-mortem on how this popular government transparency bill died in Congress. The reason the FOIA reform stalled in the House may not simply have been lobbying by the financial industry, however, as had been previously reported.

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “forseeable harm” requirement as the basis for frequent lawsuits.

This detail led Trevor Timm, executive director of the Freedom of the Press Foundation, to argue that it was the Justice Department that secretly tried to stop FOIA reform, despite the text of the legislation being almost word-for-word the poilcy that the agency itself embraced in 2009.

The “foreseeable harm” section referred to by the Post would force federal agencies to justify withholding information if they wished to do so. Essentially, they would have to show the information would cause “foreseeable harm” if released. Not exactly a tall order. But what makes the Justice Department’s objection so shocking is that this “foreseeable harm” provision would not deviate at all from the Justice Department’s own policy. In fact, it was based on it.

In a March 19, 2009 memo to all federal agencies, Attorney General Eric Holder himself wrote that the Justice Department would carry out Obama’s aforementioned transparency order by rescinding the Bush DOJ’s more restrictive FOIA rules and designating new ones. From that moment on, Holder declared:

[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

Now read the full text of the provision in the just-killed FOIA reform bill that the Justice Department allegedly objected to:

An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law.

As you can see, the two passages are virtually identical. How does the Justice Department think this provision will lead to more lawsuits it would have to defend if they’re not supposed to be defending those lawsuits in the first place?

The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to—or have to—comply with its own FOIA rules.

The DOJ has repeatedly been criticized for failing to enforce, and downright ignoring its own FOIA guidance for years, and their stance on transparency in general has been incredibly hypocritical. For example, Holder has claimed hewanted the torture report to be public as soon as possible, meanwhile fighting in court to prevent the release of any documents on its own torture investigation. Likewise, he’s claimed the Justice Department supports a federal shield law so reporters can protect their sources, while at the same time destroying the already-existing reporter’s privilege in the Fourth Circuit.

Writing for the National Security Archive, Nate Jones looked for lessons from the death of the unanimously supported FOIA bill and decried “Janus-faced support for open government.”  Here was his key takeaway:

Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really.  To me, that’s the only plausible reason a FOIA bill could garner unanimous approval (thrice in the Senate over the past seven years!) and still die; that’s the only plausible reason agencies whisper that instructions about FOIA currently on the books will ruin the federal government as we know it; that’s the reason for White House silence on the benefits the FOIA Ombuds office not being forced to run its reports though the Department of Justice so they can be “rosified;” that’s the reason the New York Times wins Pulitzers for its FOIA-based reporting, but doesn’t assign a Congressional beat reporter to cover the bill’s death.

How do we overcome these FOIA Januses?  First, we must avoid being stalled out.  We should force Speaker Boehner to act on his pledge that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.”  FOIA champions Senators Leahy, Cornyn, and Grassley remain in the Senate Judiciary Committee; these senators have an impressive history of defending and working to reform FOIA, no matter which party is in the majorly.  Replacing Representative Issa on the House Oversight Committee is Jason Chaffetz (R-Ut); Democratic FOIA champion Elijah Cummings remains.  Encouragingly, Chaffetz has said he “wants to address the Freedom of Information Act and the difficulties many have in getting the executive branch to comply with FOIA requests.”  Both houses should immediately reintroduce the FOIA bill.  More than 440 members who voted for FOIA reform remain in Congress.

On Saturday, December 20, the New York Times editorial board called for the 114th Congress to revisit the freedom to see government records. In doing so, it made no mention of the reporting on the cause of death by this blog, Vice News, the Washington Post, the Hill, Roll Call or Politico, nor lobbying by banks or federal agencies, nor silence by the White House while most of the press looked the other way.

Threatening legacy, Senator Jay Rockefeller stands alone holding back historic FOIA reform in the USA

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Multiple sources have confirmed that retiring U.S. Senator Jay Rockefeller (D-WV) has put a hold on the FOIA Improvement Act, the bill that would enact historic reforms to the Freedom of Information Act, the core open government law in the United States of America that gives every citizen the right to information about their government. While the senator may wish to tout his legacy of service online, if he does not release his hold by Monday, the bill will be dead, and the responsibility for that failure will lie squarely upon his shoulders.

Without naming Senator Rockefeller specifically, Senator Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, issued the following statement into the Congressional Record last night:

The Freedom of Information Act is one of our Nation’s most important laws. James Madison said the people “must arm themselves with the power knowledge gives.” For nearly 50 years, FOIA has given Americans a way to access government information ensuring their right to know what their government doing. The FOIA Improvement Act advances this fundamental democratic principle. It is why I urge all Senators to support the FOIA Improvement Act of 2014, without delay. This legislation builds on what the President laid out in his historic executive order in 2009 by requiring Federal agencies to adopt a “Presumption of Openness” when considering the release of government information under FOIA. Prioritizing the people’s interest in what their government is doing, our bill will reduce the overuse of exemptions to withhold information where there is no foreseeable harm. It will make information available for public inspection and frequently requested documents available online. It will provide the Office of Government Information Services (OGIS), with additional independence and authority to carry out its work. I believe this legislation reaffirms the fundamental premise of FOIA, that government information belongs to all Americans. Supporting these commonsense reforms will help open the government to the 300 million Americans it serves. The bill is supported by more than 70 public interest groups that advocate for government transparency. The Sunshine in Government Initiative, said the Leahy-Cornyn bill “strengthens government transparency by limiting the ability of agencies to hide decades old documents from the public.” At the Judiciary Committee’s business meeting to consider this legislation, which was reported to the full Senate with unanimous support, Ranking Member Grassley said the FOIA Improvement Act “opens wide the curtains and provides more sunlight on the Federal government.” Senator Cornyn, my partner for many years on government transparency, noted our bipartisan efforts “to open up the government and make it more consumer and customer friendly.” I thank both Senators for their work on this legislation. We often talk about the need for government transparency, and many also note how rare it is that Democrats and Republicans can come together on any legislation. We have accomplished both with the FOIA Improvement Act. It was drafted in a bipartisan fashion after a long and thoughtful process of consultation. This week, we can pass this bill in the Senate and send it over to the House, where I am confident that it will pass, and send it to the President to sign before the end of the year. There is no reason to delay this legislation, which has broad support from a range of stakeholders, costs very little to implement and will improve access to government for all Americans. I urge the Senate to pass the FOIA Improvement Act now, without delay.

In his farewell address, Senator Rockefeller bemoaned the “hyper-partisan politics” in today’s Washington, offering memories of the Senate where compromises led to good policy.

Respectfully, Mr. Rockefeller, to opine thus and then block a bipartisan bill that passed the U.S. House of Representatives unanimously, 410-0, before it was amended, introduced by Senator Leahy and Senator John Cornyn (R-TX), and then unanimously passed by the Senate Judiciary Committee is nothing less than rank hypocrisy.

It’s hard to believe that Senator Rockefeller wants to be known for blocking open government reform at a time of historic lows in trust in government and abysmal public perceptions of the U.S, but that’s exactly what will happen if he doesn’t release this hold.

Update: on Friday night, Senator Rockefeller made the following statement on the FOIA Improvement Act, confirming the hold:

“I have a long record of support for open government and the FOIA process. I am concerned that provisions in this bill will have the unintended consequence of harming our ability to enforce the many important federal laws that protect American consumers from financial fraud and other abuses. According to experts across the federal government, these provisions would make it harder for federal agency attorneys to prepare their cases, and they would potentially give defendants new ways to obstruct and delay investigations into their conduct. I hope there is a way to address these concerns and pass the bill.”

In response, David Plazas, editorial board chair of the Tennessean, maintained that Senator Rockefeller should lift his hold.

“The bill specifically states that all records are presumed to be open unless there’s a law that would exempt it,” he wrote. “Clearly, the concerns raised in the senator’s statement should be assuaged. That House members voted unanimously for the companion bill and that a bipartisan group of senators are backing it has us questioning the real motives behind this hold.”

So do I, for the same reason. For 509 other members of Congress, these concerns were not enough to halt progress of much-needed reforms. It’s not clear which provisions the Senator is referring to, or what experts across the federal government he is referring to, because this short statement, issued at 6:30 PM on Friday after a full day of advocates, journalists and citizens asking for an explanation, doesn’t explain.

Currently, these same federal agencies are failing to comply with FOIA requests, overusing exemptions and delaying responses for years. Vague concerns about delaying investigations or harming enforcement of financial fraud, perhaps referring to actions by federal attorneys at the Federal Trade Commission or Securities and Exchange Commission, don’t hold water when balanced against the documented resistance to the public’s right to know what’s being done in their name. Raising these issues at this point in the legislative calendar very well may scuttle the bill, which would still need to go back to the House and then to the White House. If that’s the outcome, Senator Rockefeller’s “long record of support for open government and the FOIA process” will be forever cast into shadow.

Patrice McDermott, executive director of OpenTheGovernment.org, made the following statement:

“We encourage Senator Rockefeller to reconsider his hold on the bipartisan FOIA Improvement Act, S. 2520, and release the bill as soon as possible. The benefits of this critical reform bill far outweigh any nebulous concerns about unintended consequences, all of which can be addressed by the Senate as they pass the bill. S. 2520 was passed unanimously by the Judiciary Committee and is set to be taken up by the House as soon as it clears the Senate. It is also widely supported by a range of groups that cross the political spectrum and represent a wide range of interests. Senator Rockefeller shuld not remain the sole holdout that stops our ability to make the federal government more open and accountable.”

Update: On Friday, The Hill (accurately!) reported that Senator Rockefeller is being blamed for blocking the Freedom of Information reform bill. Roll Call covered the fact that Senator Rockefeller opposes the FOIA bill, advancing the story in reporting that his objections were as a surprise to Senator Leahy:

“Yesterday was the first we have heard of these concerns,” a Leahy aide said. “The FOIA Improvement Act, which was introduced in June, was approved unanimously by the Judiciary Committee on November 20. It has the support of more than 70 government transparency groups and is the result of months of consultation with the administration and a wide range of stakeholders.”

If wanted FOIA reform to address his concerns, why didn’t he raise them earlier? As always, apply Occam’s Razor: the most likely explanation is that he knew putting a hold on it this late in the legislative calendar would keep it from passing. What might motivate that action?

As reporter C.J. Ciaramella noted in his FOIA newsletter, FreedomInfo.org reported that Senator Rockefeller’s “doubts were identified by one bill supporter as being stimulated by the Federal Trade Commission, an independent agency. An advocate for the bill said the FTC was concerned about the administrative burden and judicial review of the foreseeable harm standard.”

The emerging consensus among the open government advocates in DC that I’ve talked to over the past 24 hours is that the FTC was actively lobbying against this bill, and appears to have found a receptive ear. Neither the FTC or Rockefeller’s is taking questions. As Ciaramella ironically observed, “it’s pretty cool that the federal agency and U.S. Senator who are single-handedly holding up a transparency bill that has the support of 99 other Senators won’t answer questions about it.”

Update: Josh Gerstein, writing about the Senate standoff over the FOIA bill, reported more on the concerns that led Senator Rockefeller to put the hold on it:

…sources said the agencies’ concerns are that the legislation would allow companies to pierce the attorney-client and attorney work-product privileges, potentially giving targets of enforcement actions a roadmap detailing what kind or level of misconduct will trigger action and what kind is likely to be ignored.

“The bill would statutorily require government law enforcement agencies to withhold documents from a FOIA request only if they first establish that ‘the agency reasonably foresees that disclosure would harm an interest protected by’ the exemption invoked,” said a Rockefeller aide who asked not to be named. “Consequently, the bill could expose law enforcement agencies to needless litigation and drain their already limited resources in defending FOIA decisions that have long been invoked for legitimate law enforcement purposes.”

“The chairman believes this new foreseeable harm standard would likely have a chilling effect on internal communications and deliberations and could limit internal debating on law enforcement strategy, deter agency employees from providing candid advice, and lower the overall quality of the government decision-making process – all which are absolutely vital to effective law enforcement,” the aide added.

Since news of Senator Rockefeller’s hold on the bill first broke on Friday, dozens of people on Twitter and Facebook have been asking @SenRockefeller to release the hold.

Tweets are almost certainly not going to be enough. If this is an issue that concerns you or (if you’re in the media, your listeners, readers or viewers, since FOIA applies to everyone), Senator Rockefeller’s office is in at 531 Hart Senate Office Building, Washington, DC 20510. The office number is (202) 224-6472, the fax is (202) 224-7665, and the email is senator@rockefeller.senate.gov. Unfortunately, the DC phone continues to go to voicemail and there’s no guarantee that your email will be read. Concerns citizens or reporters looking for answers can also call the senator’s satellite offices in Beckley, WV (304-253-9704), Charleston (304-347-5372), Fairmont (304-367-0122), or Martinsburg (304 262-9285) or contact other U.S. Senators and ask them about the hold.)

This post has been updated over time.

On its 3rd anniversary, opportunities and challenges for the Open Government Partnership

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In 2010, President Barack Obama spoke to the United Nations General Assembly about open government. “The common thread of progress is the principle that government is accountable to its citizens,” he said, “and the diversity in this room makes clear — no one country has all the answers, but all of us must answer to our own people.”

In all parts of the world, we see the promise of innovation to make government more open and accountable.  And now, we must build on that progress.  And when we gather back here next year, we should bring specific commitments to promote transparency; to fight corruption; to energize civic engagement; to leverage new technologies so that we strengthen the foundations of freedom in our own countries, while living up to the ideals that can light the world.

Open government, said Samantha Power, now the U.S. ambassador to the United Nations, could have a global impact.

In 2011, a historic Open Government Partnership launched in New York City, hailed as a fresh approach to parting the red tape by the Economist. “The partnership is really the first time that there is a multilateral platform to address these issues,” said Maria Otero, former under secretary of state for democracy and global affairs at the United States State Department. “The partnership could have focused on countries come in and present best practices and exchange ideas and then just go home.”

“The partnership is really focused on first having countries participate that have already demonstrated interest in this area and have already put in place a number of specific things and the material laid out, if you will, the minimum standards that are being requested. What the partnership really looks for is to provide a mechanism by which the countries can each develop their own national plans on ways to expand what they’re doing on transparency, accountability, and civic engagement, or to start new initiatives for them. That is really what is very different and important about this partnership, is that it is very action- and results-oriented.”

In 2012, the Open Government Partnership became a player on the world stage as it hosted a global gathering of national leaders and civil society an annual meeting in Brazil, with the responsibilities and challenges that accompany that role, including pushing participants to submit missing action plans and progress reports, not just letters of commitment.

In January 2013, Power hailed the Open Government Partnership (OGP) as President Obama’s signature governance initiative:

It’s not about the abstraction about ‘fighting corruption’ or ‘promoting transparency’ or ‘harnessing innovation’ — it’s about ‘are the kids getting the textbooks they’re supposed to get’ or does transparency provide a window into whether resources are going where they’re supposed to go and, to the degree to which that window exists, are citizens aware and benefiting from the data and that information such that they can hold their governments accountable. And then, does the government care that citizens care that those discrepancies exist?

In May 2013, a seminal event in the evolution of OGP occurred when Russia withdrew from the Open Government Partnership:

If the dominant binary of the 21st century is between open and closed, Russia looks more interested in opting towards more controllable, technocratic options that involve discretionary data releases instead of an independent judiciary or freedom of assembly or the press. One of the challenges of the Open Government Partnership has always been the criteria that a country had to pass to join and then continue to be a member. Russia’s inclusion in OGP instantly raised eyebrows, doubts and fears last April, given rampant corruption in the public sector and Russia’s terrible record on press freedom. “Russia’s withdrawal from the OGP is an important reminder that open government isn’t easy or politically simple,” said Nathaniel Heller, executive director of Global Integrity. “While we don’t yet fully understand why Russia is leaving OGP, it’s safe to assume that the powers that be in the Kremlin decided that it was untenable to give reformers elsewhere in the Russian government the freedom to advance the open government agenda within the bureaucracy.”

In November 2013, the world may have hit ‘peak open‘ at the OGP annual summit in London, despite the partnerships’ members facing default states of closed.

Swirling underneath the professional glitz of an international summit were strong undercurrents of concern about its impact upon governments reluctant to cede power, reveal corruption or risk embarrassment upon disclosure of simple incompetence. The OGP summit took place at a moment where 21st century technology-fueled optimism has splashed up against the foundations of institutions created in the previous century. While the use of the Internet as a platform for collective action has grown, so too have attendent concerns about privacy and surveillance, in the wake of disclosures by NSA contractor Edward Snowden, where the same technologies that accelerated revolutions across the Middle East and North Africa are being used to capture and track the people advocating for change.

In 2014 the Open Government Partnership has matured and expanded, with France joining earlier in the year and Bosnia and Herzegovina bringing the total number of participating countries to 65 out of about 88 eligible countries worldwide. As OGP turns three, the partnership is celebrating the success of its expansion and looking ahead to its future, with a clearer mission and goals and ambitious four year strategy (PDF). The partnership is finally writing letters to countries that are not living up to their commitments, although the consequences for their continued participation if they do not comply remain to be seen.

The challenges and opportunities ahead for a partnership that provides a platform for civil society to hold government accountable are considerable, given the threats to civil society worldwide and the breathtaking changes brought about through technological innovation. Today, 10 national leaders will speak in New York City to mark OGP’s third anniversary. (I’ll be there to listen and share what I can.)

After the speeches end and the presidents and prime ministers return home, serious questions will remain regarding their willingness to put political capitol behind reforms and take tough stands to ensure that their governments actually open up. Digital government is not open government, just as not all open data supports democratic reforms.  As Mexico prepares to become lead co-chair of OGP, one element that didn’t make it into the challenges listed for the country is the state of press freedom in Mexico. As the Committee to Protect Journalists highlighted, open government is not sustainable without a free press. As long as the murders of journalists go unpunished in Mexico, the commitments and efforts of the Mexican national government will have to be taken in context.

Given this blog’s past stance that as press freedom goes, so too does open government, I’ve signed a petition urging the White House to explicitly support a right to report. Every other country that has committed to open government should do the same. Given OGP’s own challenges around the media and open government (PDF), I would also urge the partnership to make sure that press freedom and freedom of expression occupies a prominent place in its advocacy efforts in the years ahead.

Open government advocates: terms and conditions mean DC open data is fauxpen data

500px-WilsonbldgEarlier this summer, this blog covered the launch of District of Columbia’s executive order on open government, open data policy, open data platform and online FOIA portal. Last week, the Sunlight Foundation laid out what DC should have done differently with its open data policy.

“The evolution of open data policies since 2006 provides a chance for stakeholders to learn from and build on what’s been accomplished so far,” wrote policy associate Alisha Green. “This summer, a new executive directive from Mayor Vincent Gray’s office could have taken advantage of that opportunity for growth, It fell far short, however. The scope, level of detail, and enforceability of the policy seem to reveal a lack of seriousness about making a significant improvement on DC’s 2006 memorandum.”

Green says that DC’s robust legal, technology and advocacy community’s input should have helped shape more of the policy and that “the policy should have been passed through the legislative, not executive, process.” Opportunities, missed.

Yesterday, civic hacker and Govtrack.us founder Joshua Tauberer took the critique one step further, crying foul over the terms of use in the DC data catalog.

“The specter of a lawsuit hanging over the heads of civic hackers has a chilling effect on the creation of projects to benefit the public, even though they make use of public data released for that express purpose,” he wrote. “How does this happen? Through terms of service, terms of use, and copyright law.”

The bottom line, in Tauberer’s analysis, is that the District oF Columbia’s open data isn’t truly open. To put it another way, it’s fauxpen data.

“Giving up the right to take legal action and being required to follow extremely vague rules in order to use public data are not hallmarks of an open society,” writes Tauberer. “These terms are a threat that there will be a lawsuit, or even criminal prosecution, if civic hackers build apps that the District doesn’t approve of. It has been a long-standing tenant that open government data must be license-free in order to truly be open to use by the public. If there are capricious rules around the reuse of it, it’s not open government data. Period. Code for DC noted this specifically in our comments to the mayor last year. Data subject to terms of use isn’t open. The Mayor should update his order to direct that the city’s “open data” be made available a) without restriction and b) with an explicit dedication to the public domain.”

In the wake of these strong, constructive critiques, I posted an update in an online open government community wondering what the chances ar that DC public advocates, technologists, lawyers, wonks, librarians and citizens will go log on to the DC government’s open government platform, where the order is hosted, and suggest changes to the problematic policy? So far, few have.

The issue also hasn’t become a serious issue for the outgoing administration of Mayor Vincent Gray, or in the mayoral campaign between Muriel Bowser and David Catania, who both sit on the DC Council.

The issues section of Bowser’s website contains a positive but short, vague commitment to “improved government”: “DC needs a government that works for the people and is open to the people,” it reads. “Muriel will open our government so that DC residents have the ability to discuss their concerns and make suggestions of what we can do better.”

By way of contrast, Catania published a 128 page platform online that includes sections on “democracy for the District” and “accountable government.”(Open data advocates, take note: the document was published on Scribd, not as plaintext or HTML.) The platform includes paragraphs on improving access to government information, presenting information in user-friendly formats, eradicating corruption and rooting out wasteful spending.

Those are all worthy goals, but I wonder whether Catania knows that the city’s current policy and the executive order undermines the ability and incentives for journalists, NGOs, entrepreneurs and the District’s residents to apply the information he advocates disclosing for the purposes intended.

Last week, I asked Bowser and Catania how their administrations would approach open data in the District.

To date, I’ve heard no reply. I’ve also reached out to DC’s Office of Open Government. If I hear from any party, I’ll update this post.

Update: In answer to a question I posed, the Twitter account for DC.gov, which manages DC’s online presence and the open data platform in question as part of the Office of the Chief Technology Officer, indicated that “new terms and conditions [were] coming shortly.” No further details were offered.

The White House (quietly) asks for feedback on the open government section of its website

Obama at computer. Official White House Photo by Pete Souza

Official White House Photo by Pete Souza

Over at Govfresh, Luke Fretwell took note of the White House asking for feedback on the open government section of WhiteHouse.gov. Yesterday, Corinna Zarek, senior advisor for open government in the White House Office of Science and Technology Policy (OSTP), where the administration’s Open Government Initiative was originally spawned under former deputy chief technology officer Beth Noveck, published a email to the US Open Government Google Group:

We are working on a refresh of the Open Gov website, found at whitehouse.gov/open, and we’d like your help!

If you’re familiar with the history of the page, you can see we have begun updating it by shifting some of the existing content and adding new tabs and material.

What suggestions do you have for the site? What other efforts might we feature?

Please let us know – reply back to this thread, email us at opengov@ostp.gov, or tweet us at @OpenGov!

Here’s some background on the group and its purpose: The White House’s Open Government Working Group needs to solicit feedback from civil society in the United States on the various initiatives and commitments the administration has made. Such engagement is essential to the providing feedback from governance experts, advocates and the public on the development of new agency open government plans and discuss progress on the national open government action plan.

As a result of a discussion at the working group this spring, OSTP created the US Open Government discussion group to connect White House staff and agency officials who work on open government to people outside of the federal government. According to the group’s description, the goal of this group is to “provide a safe and welcoming arena for government-focused collaboration and news-sharing around Open Government efforts of the United States government.” That “safe and welcoming” language is notable: the group is moderated by OpenTheGovernment.org with an eye on constructive, on-topic feedback, as opposed to, say, the much more open-ended freewheeling posts and threads on the (long-since closed) Open Government Dialog of 2009 or Change.gov.

After almost six months, the open government group, which can be accessed through a Web browser or using an email listserv, has 177 members and 37 posts. By almost any measure, these are extremely low levels of participation and engagement, although the quality of feedback from those members remains extremely high. By way of contrast, a open government and civic tech group on Facebook now has over 1900 members and an open government community on Google+ has over 1400 members, with both enjoying almost daily contributions. Low participation rates on this US Open Government Google Group are likely due in part to lack of promotion by other White House staff to the media or using the various social media platforms has joined, which cumulatively have millions of followers, and, more broadly, the historic lows of public trust in government which have created icy headwinds for open government initiatives in recent years.

So far, Zarek’s solicitation has received two responses. One comes from Daniel Schuman, policy director for Citizens for Responsibility and Ethics (CREW) in Washington, who made great suggestions, like adding a link to ethics.data.gov, a list of staff working on openness in the White House and their areas of responsibility, a link to 18f and the USDS.

“Finally, there are many great ideas about how to make government more open and transparent,” wrote Schuman. “Consider including a way for people to submit ideas where those submissions are also visible to the public (assuming they do not violate TOS). Consider how agencies or the government could respond to these suggestions. Perhaps a miniature version of “We the People,” but without the voting requiring a response.”

The other idea comes from open government consultant Lucas Cioffi, who suggested adding a link to a “community-powered open government phone hotline” like the experiment he recently created.

To those ideas, I’ll add eight quick suggestions in the spirit of open government:

1) Reinstate the open government dashboard that was removed and update it to the current state of affairs and compliance, with links to each. The Sunlight Foundation and CREW have already audited agency compliance with the Open Government Directive. By keeping an updated scorecard in a prominent place, the Obama administration could both increase transparency to members of the public wondering about what has been done and by whom, and put more pressure on agencies to be accountable for the commitments they have made.

2) Re-integrate individual case studies from the “Innovator’s Toolkit,” which was also removed, under participation and collaboration

3) Create a Transparency tab and link to the “IC on the Record” tumblr and other public repositories for formerly secret laws, policies or documents that have been released.

4) Blog and tweet more about what’s happening in the open government world outside of the White House. Multiple open government advocates do daily digests and there’s a steady stream of news and ideas on the #opengov and #opendata hashtags on Twitter. Link to what’s happening and show the public that you’re reading and responding to feedback.

5) Link to the White House account and open government projects on Github under both the new participation and collaboration tabs, like Project Open Data.

6) Highlight 18F’s effort to reboot the Freedom of Information Act.

7) Publish the second national action plan on open government as HTML on the site, and post and link to a version on Github where people can comment on it.

8)  Create a FAQ under “participation” that lists replies to questions sent to @OpenGov

If you have ideas for what should be wh.gov/open, well, now you know who to tell, and where.

18F launches alpha foia.gov in a bid to reboot Freedom of Information Act requests for the 21st century

alpha foia gov

18F, the federal government’s new IT development shop, has launched a new look at the Freedom of Information Act (FOIA) in the form of a open source application hosted on Github. Today’s announcement is the most substantive evidence yet that the Obama administration will indeed modernize the Freedom of Information Act, as the United States committed to doing in its second National Action Plan on Open Government. Given how poor some of the “FOIA portals” and underlying software that supports them exists is at all level of government, this is tremendous news for anyone that cares about the use of technology to support open government.

Notably, 18F already has a prototype (pictured above) online that shows what a consolidated request submission hub could look like and plans to iterate upon it.  This is a perfect example of “lean government,” or the application of lean startup principles and agile development to the creation of citizen-centric services in the public sector.  Demonstrating its commitment to developing free and open source software in the open, 18F asked the public to follow the process online at their FOIA software repository on Github, send them feedback or even contribute to the project.

18F has now committed to creating software that improvse how requests made under the Freedom of Information Act can be improved through technology. Specifically that it will develop tools that “improve the FOIA request submission experience,” “create a scalable infrastructure for making requests to federal agencies” and “make it easier for requesters to find records and other information that have already been made available online.”

According to 18F’s blog post, this work is supported and overseen by a “FOIA Task Force,” consisting of representatives from the Department of Justice, Environmental Protection Agency, the Office of Management and Budget, the Office of Science and Technology Policy. The task force will need to focus upon more than technology: while poor software has hindered requests and publishing, that’s not the primary issue that’s hindering the speed or quality of responses.

Despite the U.S. attorney general’s laudable commitment to a new era of open government in 2009, the Obama administration received a .91 GPA in FOIA compliance earlier this year from the Center for Effective Government.

While White House press secretary Josh Earnest may be well correct in stating that the federal government is processing more FOIA requests than ever, As the National Security Archive noted in March, the use of a FOIA exemption (protecting “deliberative processes”) to deny or heavily redact requests has skyrocketed in the past two years.

use of B5 exemptions

[NATIONAL SECURITY ARCHIVE: Chart created by Lauren Harper.]

As with the reduced access to government staff and scientists that a group of 38 journalism and open government advocates decried earlier this year, improving FOIA compliance cannot solely be addressed through technological means. To address endemic government secrecy and outright abuse of exemptions to protect against politically inconvenient disclosures, Obama administration — in particular, the U.S. Justice Department — will need to expend political capital and push agencies to actually shift the cultural default towards openness and release uncomfortable or embarrassing data and documents and not redact them beyond understanding.

That’s admittedly a huge challenge, particularly for an administration facing multiple foreign and domestic conundrums, including a scandal over missing IRS emails and obfuscated records in an election year and the most politically polarized Congress and electorate in the nation’s history, but if President Barack Obama is truly committed to “creating an unprecedented level of openness in government,” it’s one that he and his administration will need to take on.

Data journalism and the changing landscape for policy making in the age of networked transparency

This morning, I gave a short talk on data journalism and the changing landscape for policy making in the age of networked transparency at the Woodrow Wilson Center in DC, hosted by the Commons Lab.

Video from the event is online at the Wilson Center website. Unfortunately, I found that I didn’t edit my presentation down enough for my allotted time. I made it to slide 84 of 98 in 20 minutes and had to skip the 14 predictions and recommendations section. While many of the themes I describe in those 14 slides came out during the roundtable question and answer period, they’re worth resharing here, in the presentation I’ve embedded below: