US House hearing on transparency misses the open government forest for the FOIA trees

When sunshine is applied to government, what’s revealed can be determined by the eye of the beholder. After the 115th Congress neglected oversight of open government, the U.S. House Oversight Committee held a hearing on the Freedom of Information Act … Continue reading

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

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

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

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

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

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

Freedom of Information Day 2019

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunshine Week at the National Archives

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

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

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

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

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

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

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

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

Sunshine Week in the People’s House

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

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

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

Shadows and celebrations for Sunshine Week 2019

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

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

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

madison letter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Open Government Partnership IRM finds backsliding in the USA

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

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

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

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

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]

The FCC Should Avoid Regulatory CAPTCHA

This morning, James Grimaldi reported that Ajit Pai, chairman of the Federal Communications Commission, has told two U.S. Senators that he has proposed “to rebuild and re-engineer” the agency’s online electronic comment system “to institute appropriate safeguards against abusive conduct.” … Continue reading

Facebook’s new opaque political ads transparency site shows self-regulation isn’t enough

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This past week, Facebook launched a new political ad transparency website. Facebook believes that “shining a light on ads” will increase transparency, which in turn “will lead to increased accountability & responsibility over time – not just for Facebook but advertisers as well.“

I think they’re right — which should be no surprise given my focus on advocating for more political transparency in Washington over the two years I spent at the Sunlight Foundation — but reviewing reports of unlabeled political ads is going to be hard.

Overall, this site is a welcome step towards more transparency, but misses the mark. The site only “exceeds expectations” if you think a search interface that exposes no underlying data is sufficient to inform the public and regulators.

In my initial assessment, I concur with journalists who found Facebook’s new political ad system is missing a lot, as ProPublica reported. (Please install ProPublica’s political ad collector so they can inform the public about how well Facebook’s tool actually works.)

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On the one hand, it was easy to use Facebook’s new archive of “ads with political content” – essentially a simple search tool for paid political ads that have run since May 7, 2018 – at least once I got on my laptop and logged into Facebook. I found recent ads that matched Trump, Clinton, gun control and corruption.

If you click on “see ad performance,” you can learn more about each ad.

If you click on the username, you arrive at the Page behind the ads. Unfortunately, there’s no tab for political ads or link to this archive. It’s hard to see how folks will find them, without it.

As I noted on Twitter, however, there’s one more critical wrinkle: you can’t get to the page unless you’re logged into Facebook!

This would be hilariously ironic, if it weren’t for the context of Russian interference and how Facebook handled it. Self-regulation is not enough.

As sociology professor Zeynep Tufecki noted, no one — whether member of the public, the press, watchdog, academic, regulator or legislator – should have to agree to Facebook’s Terms of Service and become a user to access political data.

To Facebook’s credit, the director of product at Facebook, Rob Leathern, responded publicly to Tufecki on Twittter, stating that this page is a first step:

“More ways are coming to make the ads with political content and information more accessible to people. One of those is an API, another is exploring opening the archive to people not on Facebook. We started with the Facebook community to see how they use the tool and gain feedback from third parties, including our newly-formed Election Commission. We’ll continue to update on our progress.”

If Facebook started with open data with no log-in, they could have gotten feedback from third parties like the Center for Responsive Politics or the public. No one should have to be part of Facebook’s “community” to understand who is buying electioneering on the platform, for whom, and what’s being shown.

As I commented to Leathern, if Facebook is only “exploring” making this archive open to people not on Facebook, then it is not implementing the Honest Ads Act, as its staff has claimed to Congress and the public. I asked Facebook to post a public ad file as bulk open data on the open Web.

Leathern told me that “we have prioritized getting the archive in the hands of people to use (as of today) + will follow up soon with an archive API. Thank you for the feedback, we are definitely listening.”

That’s good news, but not good enough.

Real transparency at Facebook will look like a public file of all paid political ads that are disclosed on a public website with bulk open data downloads and an API, none of which require the public to log into the site.

The good news is that I think Facebook understands this page as a start, not an end. In a post that closes matches what he told me, Leathern wrote that they’re “working closely” with a new “Election Commission” to launch an API for the archives.

It’s good news, but no deadline cited.

It’s hard for me not to be happy that Facebook is finally explicitly embracing political ad transparency in words and (some) deeds, including public soul searching about what constitutes a political ad and a policy.

That’s progress.

It’s just long overdue. Ultimately, elected representatives should be the ones to enact standards for transparency for political ads online after debate, not tech company executives.

Until Congress and other legislatures around the world empower regulators like Federal Election Commission by updating electioneering rules and enacting standards for disclaimers and disclosures, however, I’m glad to see positive actions.

I hope Facebook, its founder and its staff deliver on its most recent promises and their public obligations. Given past, current or predictable interference, opacity is unpatriotic.

Why it’s past time for governments to fix public comments online – and how

The Bot Wars, begun they have. Over the past two years, automated social media accounts and fraudulent regulatory filings have been used by anonymous parties to obscure public opinion, distort public discourse, and corrupt the integrity of rulemaking in the … Continue reading