Recent Obama Administration Open Government Milestone; Tearing the Wall of Separation Between the American People and Their Government Isn’t Easy

As the Obama Administration ought to know by now, open government isn't easy. There are a lot of constituent elements in the wall that separates the American people and their government. Getting open government right requires planning and dedication.  Moreover, resource and legal constraints can thwart even the best-intentioned efforts by government agencies to operate in a more open fashion.

Earlier this month, the Obama administration announced a number of new developments related to its Open Government Initiative, suggesting that the Administration is taking seriously many of the important barriers to open government.

First, all of the Cabinet agencies released their open government plans, detailing steps they'll take to make “transparency, citizen participation, and collaboration part of the way they work.” The EPA's plan says it will make more of the data it uses available to the public. For example, the agency has committed to publishing a “Green Vehicle Guide,” a searchable database that brings together information on the emissions and fuel economy of all makes and models of cars that have been manufactured since 2001.

The plan also describes more abstract, but no less important measures that the agency intends to take, such as “creating and institutionalizing a culture of open government” among its personnel. For example, EPA is instituting policies that encourage the use of social media for increasing public participation and collaboration in agency decisionmaking. These kinds of culture changes may not reap immediate open government benefits, but they promise to sustain EPA’s commitment to increased open government efforts in the years to come.

Each federal agency is required to include one “flagship initiative” in its open government plan. EPA’s flagship, for example, is “community engagement.” The agency says it will develop new methods to communicate with the public when toxic contamination is discovered in communities, in order to explain the risks posed and steps people can take to protect themselves.

The second transparency development is that the administration—via new policy guidance from the White House Office of Information and Regulatory Affairs (OIRA)—has reduced some of the potential legal constraints on agency open government efforts.   One of the biggest legal constraints on these efforts is the Paperwork Reduction Act (PRA), a federal statute that regulates agency requests for information from the public to minimize the paperwork burden these requests create. The statute requires agencies to jump through a series of resource-intensive procedural hoops before they can make such requests. As such, to the extent that open government activities—such as public participation and collaboration—are seen as placing a paperwork burden on the public, the law discourages agencies from engaging in such activities at all. To that end, OIRA issued a guidance document providing a general overview of the PRA’s applicability with an eye toward clarifying how the statute would apply in circumstances involving agency open government efforts. OIRA also issued a second guidance document explaining more specifically that the PRA does not apply to most agency uses of social media (e.g., blogs, wikis, social networks, etc.). The practical effect of these two policy guidance documents is to remove a potentially huge legal barrier to the employment of innovative open government strategies, enabling agencies to experiment with them more freely as they try to implement their new open government plans.

As these guidance documents illustrate, OIRA has a crucial role to play in the administration’s Open Government Initiative. Housed in the White House Office of Management and Budget (OMB), OIRA is institutionally well positioned to examine other potential constraints (both legal and resource) that might inhibit agency open government efforts. I encourage OIRA to identify more constraints, and to issue similar policy guidance that might mitigate their effects.

But OIRA can do more as well: It should implement an open government plan of its own.   This would no doubt help OIRA to identify the potential constraints that agencies face in trying to implement their own open government plans. More importantly, though, the Obama administration’s broader open government movement would benefit greatly if OIRA—an executive branch agency that has significant transparency problems of its own—joined in as well. For instance, OIRA’s reporting of its meetings with outside parties regarding rules that are under regulatory review needs to be drastically improved. Currently, OIRA only reports the names and affiliations of the people who attend each meeting; the rule that is under discussion; the time and date of the meeting; and any documents that were presented during the meeting. In most cases—particularly those meetings in which no documents were presented—it is impossible to determine what was discussed at these meetings. OIRA could greatly improve the transparency of these meetings—meetings that potentially have a large impact on the substance of rules—if it also posted the minutes of these meetings, and in a timely fashion.

In addition, this open government plan could commit OIRA to doing a better job of publishing emails and documents from its communications with agencies over rulemaking. Executive Order 12866—the presidential order that governs the regulatory process—requires such documents to be publicized after a rule that has been under review is finalized (see Section 6(b)(4)(D)). Unfortunately, these documents do not always find their way into the rule’s rulemaking docket, leaving interested parties with incomplete evidence of how OIRA’s regulatory review affected the ultimate substance of the rule in question.

Of course, fixing transparency at OIRA wouldn’t be easy. But it should step up to the challenge.