Civil Society Groups Score Obama on Open Government

17 February 2016

The Obama administration has made only “limited” progress toward achieving its stated goals to improve access to information, according to a detailed assessment issued Feb. 16 by the OpenTheGovernment.org.

The report developed by 23 civil society organizations analyzes the administration’s efforts toward fulfilling 16 commitments. They were made in the second US national action plan created as a member of the multi-lateral Open Government Partnership.

“Among the findings, the report highlights the shortcomings in the completion rate, lack of political mandate and follow-through, and need for greater focus on civil society/government collaboration,” according to a press release. In a slight threat, the group continues, “All of these, and a deeper commitment to openness measures, must be improved for civil society organizations to continue to commit resources to helping the US government fulfill its Open Government Partnership (OGP) pledges and sustain engagement at the level this report reflects.”

Out of the 16 commitments, only one as fully completed, while the other 15 were ranked as having limited to substantial progress.

Unambitious FOI Goals Unfulfilled

Looking at the FOIA-related commitments, the report generally faults them as only moderately ambitious. “The measures spelled out in this commitment lack both ambition and the enforcement mechanisms needed to encourage measurable steps towards transformative advances in FOIA and public access to information,” the report states.

In its recommendations, the group says the administration should:

  • Promote legislative reforms that would enshrine the “presumption of openness” in FOIA.
  • Reduce the FOIA burden by identifying and proactively disclosing whole records categories, and increase public participation in the proactive disclosure process.
  • Issue guidance to narrow the application of Exemption b(5). We have recommended the guidance and agencies’ FOIA regulations be revised to require agencies to consider the public interest in disclosure and balance that interest against the agency interest in withholding.

Five FOI Goals Examined

The report summarizes what the administration has one on five FOI-related commitments:

  • Consolidated Online FOIA Service: While the Department of Justice Office of Information Policy (OIP) worked with the development office of General Services Administration (GSA) – 18F – throughout 2014 to develop and build the consolidated FOIA portal (FOIA.gov), and despite meetings with civil society on priorities and our review of website, the site does not improve on FOIA.gov nor offer tools to improve FOIA processing. OIP reported to civil society in August 2015 that they were working with the Chief Technology Officer (CTO) to continue work on the portal, but the project with 18F was ended in late 2015.
  • Develop Common FOIA regulations and practices for federal agencies: Civil society organizations met with officials from the Office of Information Policy (OIP) and agency volunteers who were working on drafting sections of the common FOIA regulations in 2014 to discuss proposed model regulations. At that time, OIP laid out a schedule for the work and next steps to develop the regulations. Civil society worked extensively to develop model FOIA regulations, and made them available to OIP and published them online in July 2014. To date, there have been no drafts of the agency common regulations been shared with civil society organizations. OIP officials informed civil society members during an August 2015 meeting that the common FOIA regulations were still under development, and, as of December 2015, there is no deadline planned for the release of the regulations.
  • Improve internal agency FOIA processes: In 2014, DOJ launched a series of best practices workshops that focus on specific topics in FOIA administration, a few of which have been open to the public. In October 2014 OIP hosted a forum featuring best practices from FOIA requesters’ perspectives. The DOJ tracks all documented best practices, as well as related guidance and resources, on its website.
  • Establish a FOIA Modernization Advisory Committee: NARA launched the FOIA Advisory Committee in June 2014, comprised of government and non-government members of the FOIA community (10 each). This committee has held 6 meetings since June 2014 to address important issues, such as FOIA litigation, FOIA fees, proactive disclosure, and FOIA enforcement. There are two meetings currently scheduled for 2016. The Committee has the authority to recommend legislative action, policy changes, or executive action, and is currently preparing recommendations on ways to improve FOIA administration.
  • Improve FOIA training across government: OIP developed and released standard e-learning training resources – ranging from basic resources to a high-level executive training video, to a comprehensive set of modules intended for FOIA professionals. OIP gathered input from civil society organizations in the development phase of the e-learning tools.

Looking Ahead

The recently released third national action plan includes five commitments to modernize the implementation of the FOIA, including measures that continue on the NAP 2 FOIA commitments. The report summarizes:

These include expanding the services of the consolidated website, FOIA.gov reviewing existing technologies, such as FOIAonline, and leveraging these technology tools to expand on the existing FOIA.gov. The NAP 3 also includes a commitment to improve agency proactive disclosures by posting FOIA-released records online. This involves a pilot program involving 7 agencies that has been underway since July 2015 under DOJ’s lead, to look at associated costs, resources needed, etc. This has important potential, and could help reduce FOIA backlogs and get more information out to the public.

Collaboration Seen as Weak

Regarding collaboration between civil society groups and government officials, the report is concludes:

Overall, there is large room for improvement in terms of fostering greater collaboration and better feedback in response to civil society’s input on FOIA-related initiatives. For example, civil society groups worked extensively to develop the model FOIA regulations, yet, over a year and a half later, we still have not seen any draft language from OIP, and have no indication on when these regulations will be released. There is general disappointment with the feedback received in response to civil society input, and a growing sentiment that civil society contributions to FOIA-related OGP measures are not leading to meaningful openness advances.

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