September 20 marked the one-year anniversary of the Open Government Partnership (OGP), an international initiative bringing government and civil society together to promote greater openness in (currently 57) countries around the world. But in the words of Rakesh Rajani, head of one of OGP’s active civil society partners, at a recent anniversary celebration, “the mark of success for OGP is not how many countries sign on, but how many commitments they deliver.” A number of countries have made commitments to openness in the past year, and now comes the task of holding them to their word and ensuring that each commitment is translated into action. Several commitments in the U.S. National Action Plan (NAP) are of great interest to the Project On Government Oversight and OpenTheGovernment.org, a coalition in which POGO is a partner.
The Obama Administration released a National Action Plan for the OGP detailing 26 specific commitments to make the U.S. government more open, transparent, and accountable to the public. These commitments are categorized under three broad challenges—increasing public integrity, managing public resources more effectively, and improving public services. Some of the wide-ranging commitments focus on the Freedom of Information Act (FOIA), declassification of national security information, improving whistleblower protections, and enhancing transparency in extractive industries and federal spending.
POGO and our allies in the transparency community had offered recommendations to the Administration to ensure a robust plan, and we were glad to see that the commitments largely incorporated many of our recommendations for reform. Now, a year later, is a good time to take stock of developments. OpenTheGovernment.org recently published a Civil Society Progress Report about the Administration’s headway since the NAP was released. (POGO’s Executive Director Danielle Brian chairs OpenTheGovernment.org’s Steering Committee, and POGO’s Director of Public Policy Angela Canterbury contributed to the progress report.)
So what are some highlights from OpenTheGovernment.org’s Progress Report, and what do they mean for the American people?
Eight commitments have been met in full, although it is important to note that some of those had already been achieved before the NAP’s launch. Also, there are several areas in which we’d like to see the Administration stretch beyond their basic commitments in order to get credit for real strides in open government. The Administration’s deadline to enact the plan in its entirety is January 2013.
The Administration has made progress on a number of commitments that require the government to take advantage of technology. For instance, the Administration made progress on the commitment to reform records management policies and practices across the Executive branch when President Obama issued a Presidential Memo on Managing Government Records, launching an effort to modernize records management. In August, the Office of Management and Budget and the National Archives and Records Administration followed up with a Managing Government Records Directive requiring all executive agencies to eliminate paper and use electronic records to the fullest extent possible. Unfortunately, it establishes an unnecessarily long timetable for implementation—agencies are not required to manage all permanent electronic records in an electronic format until 2019! Nevertheless, these directives are a step in the right direction for bringing government into the twenty-first century.
There have also been strides on the commitment to expand public involvement in the development of federal regulations. Regulations.gov is an online portal for the public to view and comment on pending regulations. According to OpenTheGovernment.org’s Progress Report, the eRulemaking Project Management Office has “released some significant updates over the course of the year” to revamp the public participation interface. You can read about some of the improvements they implemented in September 2012 here.
There is also a commitment to use Data.gov as a platform to spur innovation, and the Administration’s progress on this commitment is another bright spot in the report. Data.gov provides the public with lots of useful government data. Any Silicon Valley startup trying to create new code to develop an app, for example, can utilize these easily accessible, high-value data sets. See some examples here. According to OpenTheGovernment.org’s report, there are now about a dozen communities on Data.gov focused on a range of issues such as education and safety. The White House also released the Data.gov source code in December. This allows other countries to implement their own open data sites, encouraging citizen engagement abroad and a global commitment to openness and transparency.
So what work remains to be done for the Administration to fully implement the NAP?
There is certainly more to do in regards to the commitment on improving FOIA administration. According to OpenTheGovernment.org, “the Administration has continued to press agencies to reduce their backlog” and “process requests for information faster,” but the public is still enduring long delays. Several agencies are really lagging on their average processing times. Although there is an interagency working group to discuss leveraging technology to speed up the process, OpenTheGovernment.org states:
There is no indication that the Administration has embraced, or encouraged agencies to embrace, a holistic approach to using technology to make it easier for the public to make and track FOIA requests, to make it easier for the government to manage FOIA requests, and to make it easier for the public to access information released under the FOIA.
Another NAP commitment near and dear to POGO’s heart that has not yet been met centers on strengthening and expanding whistleblower protections for government personnel. But there has been some progress. The Administration pledged to continue to work with Congress to enact federal whistleblower reform. And since OpenTheGovernment.org’s report was published, Congress has taken action on the Whistleblower Protection Enhancement Act (S. 743). On September 29, the House finally passed the bipartisan WPEA by unanimous consent. This is legislation that has been under consideration for more than 14 years. It would expand protections for federal workers who blow the whistle on waste, fraud, abuse, and illegality (in large part by getting rid of existing loopholes). The Senate is poised to consider the bill upon their return in November from the election recess. The Administration has offered assistance and support as needed on this landmark bill.
In the NAP, the Administration also committed to exploring the option of using Executive authority to implement expanded whistleblower reforms. We strongly urge the Administration to move from exploration to execution without delay.
The report notes that although “there have been some positive developments under the independent offices that support whistleblowers, primarily under the leadership of Obama appointees (appointed prior to the NAP)” at the Office of Special Counsel and the Merit Systems Protection Board, the Administration has taken “serious actions” that truly undermine this commitment. The following actions all roll back protections and move would-be whistleblowers to think twice about coming forward with the truth:
- This Administration has prosecuted more federal workers for disclosures under the Espionage Act than all other presidencies combined.
- The President’s Director of National Intelligence issued a directive increasing surveillance of national security workers, which raises grave concerns about intimidation of whistleblowers.
- There have been several reported instances of agencies participating in email surveillance of federal workers.
- Obama’s Department of Justice (DOJ) and Office of Personnel Management (OPM) recently chose to appeal a case (Berry v. Conyers and Northover) to the Federal Circuit that resulted in removal of hundreds of thousands of employees from the merit system. Any federal worker classified as “sensitive” may no longer have access to review under the Merit Systems Protection Board. The Court accepted DOJ and OPM’s argument that decision-making authority on classification issues lies exclusively with the Executive, implying national security concerns trump congressionally mandated government workers’ rights.
Thus, with the regards to the whistleblower protection commitment, the report concludes:
It will be difficult to give any credit to the Administration under this objective if they fail to issue an official executive action that significantly reforms and expands protections for whistleblowing and makes clear the President’s policy is zero tolerance for suppression and retaliation of whistleblowers.
POGO hopes the Administration will take further and immediate action to fulfill its commitment and the President’s promise to whistleblowers.
The NAP commitment on monitoring agency implementation of Open Government Plans has also only been partially met. In 2010, OpenTheGovernment.org and its partners, including POGO, performed an initial independent audit of agency open government plans, reviewed agencies’ progress in their updated plans, and more recently, did an assessment of the 2.0 versions. In the one-year anniversary progress report, OpenTheGovernment.org mentions that even though most agencies have released updated versions of the Open Government Plans in the last year as required, the Administration’s Open Government Dashboard has not been updated to reflect agencies’ efforts to implement version 1 or the release of version 2.
On September 28, American University Washington College of Law’s Collaboration on Government Secrecy held their annual “International Right-to-Know Day,” an event in which civil society leaders, advocates, and academics discuss the latest in government transparency around the world. OpenTheGovernment.org’s Assistant Director Amy Bennett was a speaker at the panel on the OGP, and she opened by noting that the Administration’s progress on each of the 26 commitments are important steps that represent momentum. Bennett also pointed to the fact that in some areas, the Administration has done more than required, going above and beyond the basic commitments.
But there was also some criticism from the panel of the underlying structure of the U.S. National Action Plan. The NAP lacks specificity—no responsible individuals are named and it does not include metrics or performance measurements. Using concrete indicators is an important way civil society can hold the Administration accountable for achieving its expressed goals.
OpenTheGovernment.org will release a comprehensive assessment in January when the U.S.action plan should be fully implemented. Stay tuned for a full evaluation that will include metrics of success for each of the 26 achievements. We will keep you updated on the Administration’s progress leading up to the New Year.
Suzie Dershowitz is a public policy fellow with the Project On Government Oversight.Follow @SuzieDershowitz