Next Steps on Government Transparency and Openness

Comments Submitted on the Development of the U.S. Action Plan for the Open Government Partnership by OpenTheGovernment.org, a Coalition Chaired by POGO

Notwithstanding putting significant energy into the openness agenda, the president is still not able to say his administration is the most open in history. Many in the openness community want to help the president achieve his objective on openness. Accordingly, we have identified three approaches to make major strides forward on the openness agenda.

I. Implementation Problems

Many of the excellent policies offered since the Obama administration took office have not lived up to expectation; the problem rests with implementation. The White House team is so busy moving from one issue to the next that it leaves little time to follow-up on existing projects to assess how they are working or to make needed changes. For example, the highly acclaimed White House visitor logs have been increasingly criticized because of data quality and inadequacies in the website itself. Here are three steps to improve implementation:

(a) The White House should review major policy initiatives and assess how they are being implemented. The assessment should involve consultation with those outside of government. This would include efforts as diverse as the White House visitor logs, E.O. on Controlled Unclassified Information, and Data.gov. The CUI E.O. deserves special attention because it received universally positive response from openness advocates, yet the implementing agency may be under-resourced to handle how it is deployed;

(b) Based on weaknesses identified in the assessments, create a plan for addressing the weaknesses that includes performance objectives and timelines for achieving specific milestones (a model for this document could be the Dec. 9, 2010 White House plan to reform information technologymanagement); and

(c) Assure that all future policy announcements addressing government transparency have performance objectives, timelines for achieving milestones, and identification of a person who will follow-up, serve as a liaison to the openness community, and report on implementation issues.

II. White House Staffing

There are two types of staffing problems that we think can be easily resolved. First, there is a need for a second senior policy person to complement Steve Croley, who we believe is doing excellent work. This would be a replacement for the Norm Eisen position. Portfolios can be defined to maximize efficiencies. Second, it would help to better articulate the responsibilities of the White House policy staff working on openness issues and share that with the openness community to foster improved communications.

III. Top Policy Priorities

Here are seven policy priorities that the White House can undertake that can make important, strategic steps in strengthening transparency and accountability in government:

1. Policy directive to improve FOIA's implementation, emphasizing the importance of full disclosures where possible, limiting the overuse of exemptions, directing the Department of Justice (DOJ) to coordinate and evaluate agency requests for new exemptions from disclosure in the aftermath of the Milner v. Department of Navy U.S. Supreme Court decision, ensuring the integrity of the FOIA process including the proper use of FOIA fee waivers, and continuing the drumbeat on reducing backlogs. Referencing the Office of Government Information Services best practices document would be helpful.
2. Policy directive to implement the Openness Floor or elements within that document. We suggest a meeting between administration officials and the openness community to review the elements in the Floor to determine items the administration can support. Next create a minimum disclosure standard on the agreed elements for all government agencies; call it the Open Government Standards. This could be done by amending the Open Government Directive and announcing as a key step to implementing the president’s Jan. 21, 2009 FOIA memo that “agencies should take affirmative steps to make information public.” It could also be a contribution to the international right to know initiative known as the Open Government Partnership.
3. Policy directive to limit unnecessary security restrictions on information. Under E.O. 13526, Classified National Security Information, agencies are to complete a comprehensive review of their classification guidance by June 27, 2012. On Jan. 27, 2011, the Information Security Oversight Office sent a memo to agencies reminding them of their responsibilities under the E.O. Nevertheless, there has been little progress within the agencies and this process takes more than a year to do. White House action is needed on the classification guidance to get agencies moving.
4. Executive Order on whistleblower protections. Proceed with an executive order to implement items in the Whistleblower Protection Enhancement Act that stalled in the last Congress and appears to be stalled now. This may have the positive impact of spurring congressional action.
5. Strengthen DOJ policy on state secrets for greater accountability. The Attorney General’s September 2009 policy on when the Department will invoke the state secrets privilege is an important first step for reform, including the legal standard asserted. However, the memorandum states that in certain cases, the Department will continue to “seek to dismiss a litigant’s claim or case on the basis of the state secrets privilege.” The Attorney General should modify the 2009 policy, recognizing that the state secrets privilege is an evidentiary privilege, and instruct Justice Department attorneys not to seek dismissal of a case or claim on this basis at the pleadings stage.
6. Continued support for media shield law. The media shield law is a protection for the public and our form of government. If we are to have a free press – which leads to a stronger democracy – it is vital to protect the relationship between journalists and trusted sources to whom journalists have promised confidentiality.
7. Work on lobbying procurement reform, disclosure of political contributions, Ethics.gov, review of the lobbying restrictions under the Ethics EO. There needs to be a renewed push on disclosure of special interest influences as promised during the presidential campaign. Work on procurement lobbying reforms (as required by the Ethics E.O.) has stalled. Ethics.gov was considered a high priority at the start of the administration but has stalled, although the Office of Government Ethics is working on a website to make various key ethics data publicly accessible and could serve as a down payment. The administration has worked on various approaches to disclosure in the aftermath of the Citizens United and other Supreme Court decisions, but nothing has been put in place for the next election cycle. There is a need to revisit the effectiveness of the 2-yr ban on LDA lobbyists working for the administration and the use of waivers.