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, confirming what watchdogs have been highlighting daily about this administration since January 2017.

Every Sunshine Week is an opportunity to take stock of how federal, state and local governments are complying with public records, public meetings laws, and ethics statutes with disclosure requirements, from city halls to legislatures. As the National Security Archive highlighted, the state of the Freedom of Information Act is cloudy:

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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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 →

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

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If the American public wants to see meaningful progress on transparency, accountability or ethics in U.S. government, it should call on Congress to act, not the Trump White House. With little fanfare or notice, the United States of America has … Continue reading →

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

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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 →

Livestreaming ban in Tennessee House shows how power can limit the right to record

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Livestreaming is not new to American politics in 2019. presidential candidates started using uStream in 2008. But it is much easier than ever before. Recent advances in smartphones and wirelesss Internet access have radically improved the capacity of politicians and … Continue reading →

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

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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 →

President Trump signs historic open government data bill into law

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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

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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.

Senate passes evidence-based policymaking bill, setting up historic win for open government data

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The arc of open government in United States is long, but perhaps it will bend towards transparency and accountability as 2018 comes to a close, in an unlikely moment in our history. After years of dedicated effort by advocates and bipartisan leadership in both houses of Congress, the Open, Public, Electronic, and Necessary Government Data Act (AKA the OPEN Government Data Act) is about to become law after the United States Senate passed the bill as part of H.R. 4174 on December 19.

Senator Brian Schatz (D-HI) shared the news in a tweet last night:

…followed by Representative Derek Killmer (D-

Here’s Schatz speaking about the bill at a Data Coalition event last winter:

Two steps remain: passage of the bill in the House and President Donald J. Trump signing it into law. Barring a scheduling issue or unexpected change (keep an eye out for shenanigans on the House floor today), the nation is close to a historic codification of two powerful principles:

  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 to make public policy

Along with making open government data the default in U.S. government and requiring the White House Office of Management and Budget to oversee enterprise data inventories for every agency, the bill would require federal agencies to do the following, as listed in the summary from the Law Library of Congress:

This bill requires departments and agencies identified in the Chief Financial Officers Act to submit annually to the Office of Management and Budget (OMB) and Congress a plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of such departments and agencies.

The plan must include: (1) a list of policy-relevant questions for developing evidence to support policymaking, and (2) a list of data for facilitating the use of evidence in policymaking.

The OMB shall consolidate such plans into a unified evidence building plan.

The bill establishes an Interagency Council on Evaluation Policy to assist the OMB in supporting government-wide evaluation activities and policies. The bill defines “evaluation” to mean an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency.

Each department or agency shall designate a Chief Evaluation Officer to coordinate evidence-building activities and an official with statistical expertise to advise on statistical policy, techniques, and procedures.

The OMB shall establish an Advisory Committee on Data for Evidence Building to advise on expanding access to and use of federal data for evidence building.

Open, Public, Electronic, and Necessary Government Data Act or the OPEN Government Data Act

This bill requires open government data assets to be published as machine-readable data.

Each agency shall: (1) develop and maintain a comprehensive data inventory for all data assets created by or collected by the agency, and (2) designate a Chief Data Officer who shall be responsible for lifecycle data management and other specified functions.

The bill establishes in the OMB a Chief Data Officer Council for establishing government-wide best practices for the use, protection, dissemination, and generation of data and for promoting data sharing agreements among agencies.

While the United States would not be not the first democracy to pass such a law, it would be a welcome advance, codifying many aspects of the open government data policies that have been developed and promulgated in the federal government over the past decade.

How did open government data get into the US Code?

This was no accident of fate or circumstance: This bill, which was previously passed by the House last month, was sponsored by the Speaker of the House, Paul Ryan. It’s an important element of his legislative legacy, and one that can and should earn praise – unlike other aspects of his time with the gavel.

It’s taken years of advocacy and activism by a broad coalition to get here, including the Sunlight Foundation, the EFF, Business Software Alliance, Center for Data Innovation, the Scholarly Publishing and Academic Resources Coalition, American Library Association, the R Street Institute, among many others, and bipartisan efforts on both sides of the aisle. Senator Ben Sasse (R-NE) co-sponsored the OGDA in the Senate, with 5 others, and former Representative Blake Farenthold (R-TX) cosponsored it in House, with 12 others.

That original bill almost made it into law in 2016, when the Senate passed OGDA by unanimous consent, but the House didn’t move it before the end of the 115th Congress. In September 2017, when it was poised to pass Congress as part of the National Defense Authorization Act., before it was stripped from the final version.

In October 2017, the text of the Open Government Data Act, however, was incorporated into H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2017,

The new bipartisan, bicameral companion legislation was introduced on October 31, 2017 by Speaker of the House Paul Ryan (R-WI) and Senator Patty Murray (D-WA) to enact the recommendations contained in the final report from the Commission of Evidenced-Based Policy.

While it has been watered down a bit, what I argued then is still true today: the bill “offers 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.”

The addition of OGDA into that bill was “an important endorsement of open government data by one of the most powerful politicians in the world” and “a milestone for the open movement, an important validation of this way of making public policy, and the fundamental principles of data-driven 21st century governance.”

The OGDA was one of the primary legislative priorities for me during my years as a senior analyst and then deputy director at the Sunlight Foundation, along with Freedom of Information Act Reform and Honest Ads Act.

I picked up the transparency baton on OGDA from former Sunlight analyst Matt Rumsey, Sunlight federal policy manager Sean Vitka, OpenGov Foundation founder Seamus Kraft, and Data Coalition founder Hudson Hollister, who drafted the original open data bill, working to make the principle that “public data created with taxpayer dollars should be available to the public in open, machine-readable forms when doing so does not damage privacy or national security” the law.

This is a huge win for public access to public information that every American can and should celebrate today. Special thanks for this victory are due to Christian Hoehner, policy director for the Data Coalition, who did extraordinary yeoman’s work getting this through Congress, Sasha Moss of the R Street Institute, Hollister, Daniel Schuman of Demand Progress, Daniel Castro and Joshua New at the Center for Data Innovation, and Gavin Baker from the American Library Association, some with whom I went to Congress with me to meet with staff over the years and advocated for the bill on and offline.

The passage of this bill won’t mean that the scanned images of spreadsheets that agencies still send in response to FOIA requests will magically go away tomorrow, but journalists, watchdogs and the public can now tell civil servants that they’re now behind the times: open government data is now the default in the USA! Please publish our data on the agency website in a structured format and let the public know.

[Image Credit: Sunlight Foundation]