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.

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.

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

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

On Kavanaugh records requests

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

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

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

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

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

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

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

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

Updates from the National Declassification Center (NDC)

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

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

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

Updates from the Information Security Oversight Office (ISOO)

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

Updates on records management

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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