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

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

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

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

U.S. House unanimously votes in favor of FOIA reform and a more open government

Earlier tonight, The United States House of Representatives voted 410-0 to pass the FOIA Oversight and Implementation Act. If the FOIA Act passes through the Senate, the bill would represent the most important update to United States access to information laws in generations.

“Transparency in government is a critical part of restoring trust and the House will continue to work to make government more transparent and accessible to all Americans,” said House Majority Leader Eric Cantor (R-VI). “By expanding the FOIA process online, the FOIA Oversight and Implementation Act creates greater transparency and continues our open government efforts in the House.”

The FOIA Oversight and Implementation Act (FOIA), ‪‎H.R.1211‬, is one of the best opportunities to institutionalize open government in the 113th Congress, along with the DATA Act, which passed the House of Representatives 388-1 last November.

The FOIA reform bill now moves to the Senate, which passed unanimous FOIA reform legislation in the last Congress.

As Nate Jones detailed at the National Security Archive, the Senate’s own legislative effort to reform FOIA, the so-called the “Faster FOIA Act” (S.627S. 1466), was not picked up by the House: the open government bill was hijacked in service of a 2011 budget deal, where the FOIA provisions in it ultimately met an untimely end. Chairman Darrell Issa (R-CA.), Ranking Member Elijah Cummings (D-MD), and Representative Mike Quigley (D-IL) chose to draft their own bill instead of taking that bill up again.

Open government advocates applauded the unanimous passage of the FOIA Act, although there are some caveats about its provisions for the Senate to consider.

“This vote shows strong congressional support for government transparency and the Freedom of Information Act,” said Sean Moulton, Director of Open Government Policy at the Center for Effective Government, in a statement:

Since its original passage nearly 50 years ago, FOIA has been a cornerstone of the public’s right to know. By modernizing FOIA, H.R. 1211 would improve Americans’ ability to access public information and strengthen our democracy.

We thank the chair and ranking member of the House Committee on Oversight and Government Reform, Reps. Darrell Issa (R-CA) and Elijah Cummings (D-MD), who worked with the open government community to develop this legislation in a bipartisan fashion. We urge the Senate to advance legislation addressing these issues and other pressing FOIA reforms, including the need to rein in secrecy claims under Exemption 5, which restrict access to important information about government operations.

Access to public information is crucial to our democracy and the government’s effectiveness. It allows Americans to actively engage in policymaking in a thoughtful, informed manner and to hold public officials accountable for decisions that impact us all.

The bill represents important incremental, improvements to the FOIA process, but “it doesn’t address some fundamental shortfalls in the way that the FOIA is implemented and viewed within the Federal government,” wrote Matt Rumsey, policy analyst at the Sunlight Foundation:

… A “presumption of openness” and improved online infrastructure are important, but the bigger challenge will be getting agencies to change their posture away from one of non-disclosure and often aggressive litigation that is opposed to openness. … It clearly shows that ensuring public access to government information is not a partisan issue, or even one that should divide the branches of government. We hope to see the Senate take up legislation in the near future so that both chambers can work together to send a strong FOIA reform bill to President Obama’s desk for him to sign.

Passage of the House bill is a good first step but only a first step, wrote Anne Weismann, chief counsel of Citizens for Responsibility and Ethics in Washington:

Without a doubt these are needed reforms. As CREW has long advocated, however, meaningful FOIA reform must include changes in the FOIA’s exemptions to make the statute work as Congress intended.  All too often agencies hide behind Exemption 5 and its protection for privileged material to bar public access to documents that would reveal the rationale behind key government decisions.  For example, the Department of Justice denies every request for a legal opinion issued by DOJ’s Office of Legal Counsel that determines what a law means and what conduct it permits, claiming to reveal these opinions would harm the agency’s deliberative process.  This has led to the creation of a body of secret law — precisely what Congress sought to prevent when it enacted the FOIA.

To address this serious problem, CREW has advocated adding a balancing test to Exemption 5 that would require the agency and any reviewing court to balance the government’s claimed need for secrecy against the public interest in disclosure.  Other needed reforms include a requirement that agencies post online all documents disclosed under the FOIA.  The House bill, however, does not incorporate any of these reforms.

This post has been updated with additional statements over time.

FOIA bill in the U.S. House is one of the best opportunities to institutionalize open government

b368b5d878ffa594d2_qtm6bxsz7
U.S. House unanimously voted 410-0 in favor of FOIA reform.

Unless the Congress passes legislation to codify reforms and policies proposed or promulgated under a given administration, the next President of the United States can simply revoke the executive orders and memoranda passed by his or her predecessor.

Today, almost a year after its introduction, the FOIA Oversight and Implementation Act (FOIA), H.R. 1211, will go before the U.S. House for a vote. If enacted*, it would commit the reforms to the Freedom of Information Act that the Obama administration has proposed but go further, placing the burden on agencies to justify withholding information from requestors, codifying the creation of a pilot to enable requestors to submit requests in one place, creating a FOIA Council, and directing federal agencies to automatically publish records responsive to requests online.

While these actions were proposed by the administration in its National Open Government Action Plan, Congressional action would make them permanent.

If it passed both houses of Congress and is signed into law, the FOIA Reform Act would carry into law the spirit of President Barack Obama’s Open Government Memorandum of January 21, 2009 and subsequent Open Government Directive, along with Attorney General Eric Holder’s FOIA memorandum: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails.”

The bipartisan bill, cosponsored by House Oversight and Government Reform Chairman Darrell Issa (R-CA.), Ranking Member Elijah Cummings (D-MD), and Representative Mike Quigley (D-IL), has received support from every major open government advocacy group in Washington, DC. The released a letter to Congress this week urging the passage of the FOIA Reform Act. The Sunshine in Government and Small Business and Entrepreneurship Council also published letters in support of the bill. It has not, however, picked up a sponsor in the Senate yet.

Currently, 97% of POPVOX users support HR1211. While the bill may not be perfect, very few pieces of legislation are.

“Requests through the Freedom of Information Act remain the principal vehicle through which the American people can access information generated by their government,” said Issa, in a statement last March. “The draft bill is designed to strengthen transparency by ensuring that legislative and executive action to improve FOIA over the past two decades is fully implemented by federal agencies.”

“This bill strengthens FOIA, our most important open government law, and makes clear that the government should operate with a presumption of openness and not one of secrecy,” said Cummings, in a statement.

Given the continued importance of the Freedom of Information Act to journalists and its relevance to holding the federal government accountable, I would urge any readers to find your Representative in Congress and urge him or her to vote for passage of the bill. Improving open government oversight through FOIA reform has been a long time coming, but change should come.

[Image Credit: CREW]