Mexico’s commitment to open government questioned by civil society

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The ability of the government of Mexico to lead the Open Government Partnership is now being questioned by multiple parties, leading to one of the most serious challenges for the international multilateral initiative since its historic launch in 2011. In January, civil society organizations demanded that the scope of the Open Government Partnership be expanded in Mexico. This week, a series of statements further heightened the tension.

On February 17th, the civil society organizations that participate in the Open Government Partnership in Mexico issued a serious warning regarding possible regressions on access to information:

In the upcoming days, the Mexican Senate is scheduled to vote for a General Transparency Law initiative that has been co-constructed in an unprecedented act of open parliament, where the voice of Civil Society was actively heard and incorporated.

However, this best practice of co-creation is being hindered by petition of the Executive Branch of the Federal Government; the modifications it proposes, above all, are contrary to the recent Constitutional Reform.

There are three main concerns with these modifications to the initiative. First and foremost, they will produce a great regression in what Mexico has gained regarding transparency and access to information; gains that the Civil Society and relevant stakeholders have pro-actively defended for the past twelve years.

Second, they blatantly weaken the Federal Institute for Access to Public Information and Data Protection (IFAI) by constraining its independence and authority.

Third, there are a series of small adjustments that limit the right of access to information and transparency, the obligations towards transparency and accountability of public servants, and broaden the number of criteria to withdraw information from the public and the number of years it must remain undisclosed.

Should this initiative pass with these modifications, the most likely scenario will be one where public servants will be able to act with no accountability, and with an extraordinary ease to wash their hands of any omission on their part.

On February 19th, Ana Cristina Rueles made an even stronger statement in an editorial at FreedomInfo.org, writing that “The government’s rhetoric is all about transparency and co-creation but in their offices they are pushing us backward, to opacity and zero accountability.” She also warned of the risks of regression on open government:

If these changes are approved they can lead us where we were on 2006 — before the recognition of the RTI principles in the Constitution and the Supreme Court criteria we have gained throughout these years — neutralizing the effects of the last Constitutional reform.

Therefore, I wonder how Mexico can still be the leader of the OGP if there is no willingness from the President’s Office to make a change and effectively guarantee RTI to all their citizens. I know OGP is not only about transparency and access to information and that it is supposed to solve particular problems. But no Action Plan can be completed with this limited legal framework. Mexican civil society organizations have sent a letter to the OGP protesting the government’s proposed changes (CSO letter in English and Spanish.)

The transparency and openness the government preaches is clearly just a display. In the past year, Mexico was involved in serious corruption issues related to the white house of the President’s wife and security issues for the forced disappearance of 43 students from Ayotzinapa. The President responded by saying that transparency and openness would outline government actions from there on. However, there is plenty of difference between this momentum and the position of his legal advisor and his party who fight for regression.

These weeks are crucial for the General Law final approval. Senators are still negotiating changes and suppose to bring a final draft before the end of the month but timing is still unclear.

On February 21, the civil society co-chairs of the Open Government Partnership issued a statement responding to the serious concerns that have been raised.

Suneeta Kaimal and Alejandro González Arreola praised the recent record of the Mexican government on transparency, listing various advances since 2002, ending with the advancement of the reform law that has led to this moment.

“One of the most compelling features of these constitutional reforms is that they embraced an unprecedented process of open parliament,” they wrote. “Congress and civil society collaborated closely and the IFAI Commissioners were appointed in an open and public process. This same spirit of co-creation guided the elaboration of the General Transparency Law that regulates the application of the constitutional reform. The robust bill that was presented in December 2014 represented broad consensus among all key stakeholders.”

Kaimal and Arrelo ended the statement, however, by acknowledging the “expressions of deep concern” from Mexican civil society and the commissioners (PDF) of the Federal Institute for Access to Information and Data Protection (IFAI), an independent constitutional body in Mexico.

“As Civil Society Co-chairs of the Open Government Partnership, we share these concerns. We encourage the Mexican Government and Congress to seize this opportunity to re-confirm their proven record and commitment towards transparency, access to information and co-creation processes with civil society, as appropriate to their leadership of the OGP.”

What happens next is up to Mexican President Enrique Peña Nieto. While he and his administration has wholeheartedly embraced the aspects of government that relate to digital government, open data and innovation, now they must demonstrate the commitment to social justice, press freedom and constitutional reform that the moment demands in order to retain credibility as the leader of this international initiative.

The words that President Peña delivered at the United Nations must now be matched by action.

In the wake of scandal, the State of Oregon seeks to restore trust through publishing public records

or-state-sealIn a fascinating turn of events, rainy Oregon is embracing sunlight online after a scandal that led to the resignation of its governor. After governor Kate Brown was sworn in as the 38th governor of the state of Oregon, replacing fellow Democrat John Kitzhaber, her administration chose to try to restore public trust by not only posting public records requests online but including the authors, status and a downloadable link to the records themselves, once fulfilled. The records only go back to January 15th, 2015, with a note that requests made prior to that date are “still being processed.”

The City of Oakland’s public records system, built by Code for America, does the same thing but this appears to set a new bar for state government that’s unmatched in the United States of America. As has been reported elsewhere, exemptions to Oregon’s public records laws mean that this website will be no panacea, but it looks like progress from 3000 miles away in snowy Cambridge.

As Kirk Johnson reported for the New York Times, Brown’s record includes open government work while she was a state legislator, where, as Senate Majority Leader, she worked to reform Oregon’s ethics law and helped to enact legislation that created an online campaign finance database.

“…throughout my 24 years in public service, I have also sought to promote transparency and trust in government, working to build confidence that our public dollars are spent wisely,” she said, in her inaugural speech.

Later in her remarks, Governor Brown said that “we must seize this moment to work across party lines to restore the public’s trust. That means passing meaningful legislation that strengthens the capacity and independence of the Government Ethics Commission. We also must strengthen laws to ensure timely release of public documents.”

On that count, it’s notable that two of the records requests that have been posted for download involve Cynthia Hayes, the fiancee of former Governor Kitzhaber who was at the center of the scandals that led to his resignation. One comes from Margaret Olney, who is quite likely the same Margaret Olney who served in Oregon’s Department of Justice. The other requester was Alejandra Lazo, who co-authored a Wall Street Journal article on former Governor Kitzhaber’s resignation. In an interesting sidenote, the records for both responses were uploaded to Dropbox.

If you know of another state that meet or exceeds this standard for digital transparency, or have experience or feedback regarding the quality or importance of the public records posted by Oregon, please let us know in a comment.

Emily Shaw, the national policy manager at the Sunlight Foundation, said on Twitter that she has not seen any other state’s public records system exceed this standard of transparency.

As Healthcare.gov again faces glitches, HealthSherpa.com continues to sign people up

As an open enrollment deadline draws near, HealthCare.gov​ is once again having issues, according to a USA Today report.

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The folks at Healthsherpa.com, however, tell me that it’s working fine. Last year, Ning Liang, one of the founders of the site, wrote me last year to tell me about updates to the site. Ling said that they can now enroll people in ACA marketplace plans, including subsidies.

According to Liang, as of June 2014 they were “the only place besides Healthcare.gov where this is possible. We have signed an agreement with CMS as a web based entity to do this. We are directly integrated with the federal data hub, so going through us is identical to going through Healthcare.gov.”

To date, they’ve helped more than 110,000 people sign up for insurance under the Affordable Care Act.

What a missed opportunity to have created a thriving ecosystem of other Web-based entities that are alternatives to the default government website.

FCC Commissioners take agency to task for opacity around rulemaking

Today, Federal Communications Commission​ Commissioner Ajit Pai​ released a statement & fact sheet on the non-public FCC’s proposal for Open Internet Rules, which would be applied to regulating broadband Internet service providers. He tweeted out a picture of himself holding the document (above) several days ago. In his statement today, Pai said that the American people are being misled about what’s in the rules and broke out an outline of the 300-page document. Reporting and analysis of Pai’s objections to the proposal may be found at the New York Times and National Journal. Subsequent to Pai’s statement and press conference, FCC Special Counsel for External Affairs Gigi Sohn tweeted out a series of rebuttals, including a clarification regarding the size of the document.

Here, I’ll focus on something else: the commissioner took FCC Chairman Tom Wheeler​ to task for not releasing them ahead of the scheduled vote on February 26th, in DC, although Pai did note that doing so would be “unprecedented.” In fact, FCC commissioner Mike O’Rielly tweeted much the same thing, stating that “all FCC meeting items should be made public when circulated to Commissioners. ”

O’Rielly published a blog post on advanced posting of Commission items back in January, following a previous post in August 2014.

In August, I wrote a blog post urging the Commission to post on its website the actual text of the items to be considered at our Open Meetings at the same time they are provided to Commissioners. I made the suggestion because the inability of the public to obtain a complete picture of what is in a pending notice of proposed rulemaking or order routinely leads to confusion over what exactly is at stake. Making matters worse, Commissioners are not allowed to reveal the substantive details to outside parties. We can’t even correct inaccurate impressions that stakeholders may have received, and we are barred from discussing what changes we are seeking. This barrier to a fulsome exchange can be extremely frustrating for all involved. Despite positive feedback from people at the FCC, outside parties, Members of Congress, [1] and the general public, four months later, we have yet to post a single meeting item in advance. Moreover, the lack of full disclosure and transparency has continued to be a problem as some parties have not been fully briefed on recent items, such as the recently adopted 911 Reliability NPRM, while others are not briefed at all. The reason that nothing has happened, I am told, is that there are two basic concerns with the proposal: 1) that it could be harder to comply with the Administrative Procedure Act (APA); and 2) that it could be more difficult to withhold documents under the Freedom of Information Act (FOIA). I do not find either argument persuasive or insurmountable

Wheeler took a question on this issue in a press conference last month: “The precedent here, through Democratic chairmen and Republican chairmen, has always been that just like, you know, in the court system, and elsewhere that when you’re handling cases like this, you have an internal discussion and then you release what the result of that vote is. And you don’t change that decades of precedent overnight without following the procedures to review questions like that.”

Asked for comment, FCC press secretary Kim Hart Jonson​ said that “Chairman Wheeler circulated his proposal to his fellow Commissioners three weeks before the planned vote in accordance with long-standing FCC process. We are confident the other Commissioners will give the proposal an exhaustive review. The Chairman looks forward to receiving their input and releasing it to the public after the February 26 vote.”

What this boils down to is that publishing proposed rules before a vote is technically legal but has never been done before. As Pai himself noted, “FCC rules prohibit disclosure of nonpublic information except as authorized by the Chairman.” Then-FCC chairman Julius Genachowski didn’t pull the full version of the 2010 Open Internet rules up until right before Christmas, well after the vote. The standard FCC procedure for rulemaking is to circulate the draft rules at least 3 weeks prior to a vote, incorporate edits received from FCC commissioners, then finalize everything. In practice, however, some commissioners have complained that edits may be made right up until a vote. Once rules have been voted upon, they’re published in the federal register.

As long-time readers know, I was critical of that decision at the time, and remain so. To reiterate what I said them, Genachowski made a commitment to a more open, transparent and data-driven F.C.C. under President Obama’s Open Government Directive. In many respects, in its first year of open government, the agency made commendable progress, with strides towards taking public comment through e-rulemaking at OpenInternet.gov, Broadband.gov and Reboot.FCC.gov. The sites were deployed by an able new media team that has used online communications in unprecedented ways. The chairman and his managing director, Steven Van Roeckel, both deserved credit for their plans to reboot FCC.gov as a platform for government including the use of APIs and open source technologies like Drupal.

When it comes to the question of whether the public could see the proposed Open Internet rules before the commissioners vote upon it, the agency fell short of its transparency pledge. I have not found a legal precedent that explicitly gives the agency authority to keep the text of a proposed rule secret until it is voted upon by the Commission. While it is true that the FCC does not appear to be under no legal obligation to do so, given that the members of the commission presumably had to negotiate on the details of the final rules for vote, the decision not to share a version publicly may have made such discussion more flexible.

The choice not to post the proposed rules online before the most reced vote is an example of the same level of government transparency in the creation of important regulation as before, not more. It’s possible that the legal context for how the FCC operates might change in the future, if a bill by Senator Dean Heller (R-NV) were to be passed. Per his office, the FCC Reform Act would:

“provide more opportunities for the public to see pending FCC action by publishing the exact rule or amendment to a rule for at least 21 days and by allowing any Commissioner to ask for a vote on any order issued by a bureau. *Enhance consistency and transparency in the Commission’s operations by requiring the FCC to establish procedures for handling extensive new data submitted towards the end of a comment period, adequate review and deliberation regarding pending orders, providing the status of open rulemaking proceedings, minimum public review periods for statistical reports and ex parte communications. *Empower the Commission to operate more efficiently through reform of the “sunshine” rules, allowing a bipartisan majority of Commissioners to meet for collaborative discussions subject to transparency safeguards.

A provision that the FCC must “identify a market failure, consumer harm, or regulatory barrier to investment before adopting economically significant rules,” however, may well mean that Democrats in the Senate won’t support its advance. As always with these net neutrality stories, to be continued.

UPDATE: Commissioner Pai tweeted another picture of a revised plan February 21, including his intention to vote against it and again noting that the public cannot see it before the vote. In the tweet, he says the plan is now 317 pages, which means it has been trimmed by 15 pages.

White House names VMWare CIO Tony Scott new United States Chief Information Officer

tony-scottPer Federal News Radio, the White House will name Tony Scott to be the next chief information officer (CIO) of the United States of America. Scott, currently the CIO of VMware, is a veteran of the enterprise information technology industry with over thirty years of experience. Prior to joining VMWare, he was the CIO of Microsoft, the CIO of the Walt Disney Company and the chief technology officer at General Motors.

Scott takes over from Lisa Schlosser, the interim US CIO, who stepped in when former US CIO Steven VanRoekel stepped down last year. In a post on the White House blog and CIO.gov, Shaun Donovan, the Director at the White House Office of Management and Budget, and Beth Cobert, the Deputy Director for Management at the White House Office of Management and Budget, officially confirmed the choice:

The President’s announcement today of Tony Scott as the next United States Chief Information Officer is an important opportunity for our Nation. With the radical evolution of information technology (IT), the Federal Government has unprecedented opportunity to enhance how we deliver services to the American people and spark greater innovation in the digital age. Over the past six years, this Administration has embarked on a comprehensive approach to fundamentally improve the way Government delivers results and technology services to the public. From adopting game-changing technologies such as cloud solutions, optimizing IT investments to save taxpayers nearly $3 billion, standing up the United States Digital Service to transform government’s ability to deliver critical services like healthcare and veterans benefits, to opening government assets to foster economic growth. This tremendous progress is a result of a President who recognizes the opportunity to harness advances in technology to make government work better for the American people. That is why we are pleased the President announced Tony Scott as the next U.S. CIO and Administrator of OMB’s Office of Electronic Government and Information Technology. Under Tony’s leadership, we will continue to build on the remarkable work done by the Nation’s first CIOs Vivek Kundra and Steve VanRoekel in changing the way the Federal government manages IT. Tony will bring will over 35 years of global leadership and management experience to build upon our progress and drive continued success. Tony is the right person to drive the Administration’s Smarter IT Delivery Agenda and the core objectives across the Federal IT portfolio – (1) driving value in Federal IT investments, (2) delivering world-class digital services, and (3) protecting Federal IT assets and information.

The White House Open Government Initiative Twitter account celebrated the news, tweeting: “Excited for new US CIO Tony Scott to join us in continuing to advance digital service delivery and openness efforts!”

“In selecting Tony Scott, the White House has decided that a Washington outsider is the best choice to lead this demanding job,” said Michael Krigsman, analyst and founder of CXO-Talk, in an email. Krigsman had previously said that the next US CIO needed to be a DC insider to succeed.

“With CIO roles at Microsoft and VMware under his belt, Scott certainly understands the nuances of managing tech inside a large organization. Despite this experience, Scott faces the difficult challenge of starting work during the last two years of this presidency. The political learning curve cannot be overstated. As a result, Scott will face a difficult battle to accomplish anything substantive in the next two years. I hope Scott will reach out quickly to innovative CIOs in government, such as David Bray at the FCC and Sonny Hashmi at the GSA, to establish strong partnerships. In addition, let’s see Scott get on Twitter to engage directly with his constituency. The White House has made a considered effort to engage Silicon Valley. Now it’s time to see how those Silicon Valley choices can manage within the huge federal bureaucracy.”
As I told Krigsman when he asked last year, every US CIO faces difficult problems:
The U.S. has been unable or unwilling to reorganize and fundamentally reform how the federal government supports its missions using technology, including its relationship to incumbent vendors who fall short of efficient delivery using cutting-edge tech. The 113th Congress has had opportunities to craft legislative vehicles to improve procurement and the power of agency CIOs but has yet to pass FITARA or RFP-IT. In addition, too many projects still look like traditional enterprise software rather than consumer-facing tools, so we have a long way to go to achieve the objectives of the digital playbook VanRoekel introduced.
There are great projects, public servants and pockets of innovation through the federal government, but culture, hiring, procurement, and human resources remain serious barriers that continue to result in IT failures. The next U.S. CIO must be a leader in all respects, leading by example, inspiring, and having political skill. It’s a difficult job and one for which it is hard to attract world-class talent. We need a fundamental shift in the system rather than significant tweaks, in areas such as open source and using the new Digital Service as a tool to drive change. The CIO must have experience managing multi-billion dollar budgets and be willing to pull the plug on wasteful or mismanaged projects that serve the needs of three years ago, not the future.

Scott’s experience working in some of the world’s largest enterprises should stand him – and the nation he would serve – in good stead as he moves into the White Office of Management Budget to oversee some $80 billion dollars in annual federal IT spending. He’ll inherit many headaches from the previous US CIOs, including legacy IT systems that enormous and obscure federal agencies have built over the decades. Scott’s recent experience with virtualization and cloud computing at VMWare, however, bodes well for federal workers who have been transitioning to cloud computing and mobile environments at unprecedented speed and scale over the past decade. ”

We’re entering a new era of business, where models that once seemed solid and permanent are becoming more liquid,” Scott said, in a VMWare corporate interview on information technology in 2015 last month. “You need to be liquid to be disruptive in this day and age. That means agile and flexible. Able to spin up new services in weeks not months or years. Poised to leverage mobile-cloud architecture to create new business models, revenue streams and means to create stronger connections with customers and partners.”

Scott is well-experienced, respected and connected across multiple industries that make up the core of the modern American economy, from entertainment to software to advanced manufacturing, all of which will serve the Obama administration well as it navigates a complex environment for both policy and deployment over the next two years. Along with the challenges of his predecessors, Scott will also inherit powerful new tools and an organizational capability that Vivek Kundra, the first US CIO, & VanRoekel did not have: the United States Digital Service, which has now grown to dozens of staff and plans to hire up to two hundred more.

In answer to questions, VanRoekel tweeted that the “huge opportunity is incredible [with OMB’s] #EGOV & @USDS teams – they are best in GOV & proudest part of my legacy.” Scott will have the “wind [at his] back with @USDS @18F, a government “good at cyber,” with federal workers expecting more #innovation. The new US CIO will also have a Playbook, TechFAR, open data, and, in VanRoekel’s view, a working cloud.

He said that the challenges Scott will face include “legacy systems & thinking, balancing reactive (cyber) with proactive (innovation),” and a federal bureaucratic that “still favors … contracts, systems, vendors. Need is to #failfast versus #failbig – open & modular replaces monolithic on all fronts”

Update: On Friday afternoon, Scott published a blog post entitled “From Transforming the Enterprise to Serving the Nation” at VMWare.com. Here’s an excerpt that outlines his vision for the role:

In recent weeks, I have been working part-time on a Federal Task Force to shape government policy around the role of technology in economic growth and driving the creation of jobs, as well as expanding opportunities for veterans and women. My new role will allow me to focus full-time on improving IT for our citizens.

In his recent State of the Union message, President Obama emphasized the importance of technology as a means of accelerating economic growth, innovation and increased job opportunities. He also articulated the need to take action in specific areas such as cybersecurity, net neutrality, e-health, and expanding both the access and speed of the Internet. I will contribute in these areas and will bring what I have learned in my career to this role.”

Update:

This post has been repeatedly updated with additional quotes, links and commentary.

Image Credit: VMWare

New York City crime data shows spike in NYPD response times to 911 calls

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On December 29th, 2014, the New York Post reported that arrests by the New York Police Department had plummeted in New York City after a virtual work stoppage following the execution of two officers on December 20th.

According to the data obtained by the Post, traffic tickets and summonses for minor offenses plummeted by more than 94% in the final weeks of the year.

In January 2015, New York City’s analytics portal posted a trendline that may be more worrisome to New Yorkers: a sharp jump in the length of time it takes for the NYPD to respond to crimes in progress, including a 2 1/2 minute increase in response times to calls designated as “critical.”

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The national standard for response times to 911 calls is six minutes. As the Los Angeles Times reported in its series on 911 response times in the City of Angels, rescuers routinely fail that bar. The data visualization below shows how response times vary geographically in the greater Los Angeles area.

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This is only one week of data. It could be an aberration. When the average response times for the final week of 2014 are published, the public will be able to see whether this was an exception or part of the larger slowdown. If the latter is the case, public safety is being placed at greater risk and the DeBlasio administration and NYC Police Commissioner should react accordingly.

Update: On February 9, NYC Analytics updated the data. It was immensely gratifying to see that the 911 response times have improved after the spike, returning to their previous levels.

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Graphic credit: New York Post

With hours of sunshine left, passage of FOIA reform in the U.S. House hangs in the balance

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Update: The House Majority Leader didn’t put S.2520 on Thursday’s legislative calendar (PDF). Per Congress.gov, it was “held at the desk.” We can’t pronounce it dead until 3:30 PM, as the Speaker of the House could bring the bill up by unanimous consent, but FOIA reform in this Congress likely just expired at midnight.

Imagine if an important reform to public access to government information hung in the balance in the United States Congress and the editorial boards of the country’s major newspapers ignored it. Unfortunately, that’s exactly what has happened. Only a few weeks ago, it looked this ‘do nothing Congress’ was actually set to do something: pass much-needed reforms to the Freedom of Information Act. Over the weekend, an unexpected hold in the Senate by Senator Jay Rockefeller put months of bipartisan collaboration in jeopardy. If the U.S. House of Representatives doesn’t schedule a vote tomorrow on the Freedom of Information Improvement Act that passed the Senate on Monday, however, FOIA reform will quietly expire.

Senator Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, is urging the House to pass the bill before the 113th Congress ends.

“This legislation is all about government transparency. If House Republicans want this administration to be more accountable, then they must put it on the suspension calendar without delay. Let’s get it done,” Leahy said. “With the sun about to set on this congressional session, the House should not leave this sunshine bill undone, on the table.  Time is quickly running out, and the House must act without further delay.

Representative Darrell Issa (R-CA), the chairman of the House Oversight and Government Reform Committee, and Ranking Member Representative Elijah Cummings (D-MD) have also called on the House to pass the Freedom of Information Act (FOIA) Improvement Act and send it to President Barack Obama after its unanimous passage in the Senate.

“The FOIA Improvement Act will strengthen FOIA, the cornerstone open government law,” Issa and Cummings said, in a joint statement.  “The House unanimously passed companion legislation, H.R. 1211, earlier this year.  The FOIA Improvement Act is a bipartisan bill that, after last night’s passage by the Senate, deserves to be taken up by the House and sent to the President.”

Given that FOIA reform passed the U.S. House unanimously 410-0 in February, why aren’t Speaker of the House John Boehner and Minority Leader Representative Nancy Pelosi bringing S.2520 to a vote? One source tells me that banks have sent lobbyists to the offices of House Financial Services members to oppose the FOIA reform and have told staff there that proprietary regulatory information could be released under the bill. FreedomInfo.org is also reporting that banking lobbyists are opposing the FOIA reform bill. This rumored pressure is in addition to the pressure of the same federal agencies that lobbied against the bill in the Senate.

A similar argument was made in the Senate, and it’s by all accounts a bogus one: Exemption 8 of the FOIA provides protection against such disclosure and the “foreseeable harm” standard embraced by this reform would not result in the release of such regulatory records,  given that there would be a clear foreseeable harm in their release. As FreedomOfInfo.org notes, “the Senate committee report includes lengthy language underscoring the importance of protecting financial information”:

 The paragraph secured support for the bill by the chairman of the Senate Banking Committee, Sen. Tom Johnson (D-SD), sources said. The relevant section of the report begins with a caution: “Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” The quote is from the FOIA.

The report language (minus footnotes) continues:

Currently, financial regulators rely on Exemption 8, and other relevant exemptions in Section 552(b), to protect sensitive information received from regulated entities, or prepared in connection with the regulation of such entities, in fulfilling their goals of ensuring safety and soundness of the financial system, compliance with federal consumer financial law, and promoting fair, orderly, and efficient financial markets. Exemption 8 was intended by Congress, and has been interpreted by the courts, to be very broadly construed to ensure the security of financial institutions and to safeguard the relationship between the banks and their supervising agencies. The D.C. Circuit has gone so far as to state that in Exemption 8 Congress has provided “absolute protection regardless of the circumstances underlying the regulatory agency’s receipt or preparation of examination, operating or condition reports.” Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts.

There’s a lot at stake here, and almost no time on the legislative clock. It is, as Sean Vitka wrote for the Sunlight Foundation wrote today, literally do-or-die time for FOIA reform. It’s crunch time. It’s now or (almost) never: if Speaker of the House John Boehner doesn’t bring the bill up for a vote by unanimous consent today, the process begins again in the next Congress, but without key sponsors of the FOIA reforms in the House and Senate occupying the chairs of committees.

“For all of his talk about the desire of House Republicans to hold the Obama Administration accountable, we are shocked and angered that Speaker Boehner would decide to allow a bill that strengthens and reforms the Freedom of Information Act (FOIA) die without a vote,” said Danielle Brian, chair of OpenTheGovernment.org and executive director of the Project On Government Oversight, in a statement. “S.2520 is a critical bill that strengthens the FOIA watchdog, the Office of Government Information Services, and would force agencies to finally deliver the levels of transparency that the Administration promised on their first day in office in 2009. We call on Speaker Boehner to do the right thing for the American public and call for a vote on S.2520 before the House leaves for the year.”

Update: On Thursday morning, when he was asked about FOIA reform at a press conference, Speaker Boehner said that “I have no knowledge of what the plan is for that bill.”

“We are particularly concerned that Speaker Boehner has now said that he has ‘no knowledge of the plan’ to pass the bipartisan, bicameral FOIA reform bill,” said Brian, in response. “If accountability and making the federal government answer to the public is really a priority for the Republican Caucus, passing this bill should be a priority. The House passed the House companion bill 410 – 0. The Senate passed the bill by unanimous consent after the open government community waged an all-out war against a last second attempt by the Federal Trade Commission (FTC) and other independent agencies that are supposed to be on the public’s side to stop the bill. It’s up to Speaker Boehner to put this bill to a vote and create the levels of open government the public needs.”

If the people’s right to know what their government does in their name matters to you, please let your Member of Congress know that FOIA reform matters to you, and let the Speaker of the House know. You can email the Speaker directly through OpenCongress, call him up at (202) 225-6205 and tweet him @SpeakerBoehner. Even if the press won’t represent itself and the people by asking Congress to support the free flow of government information, you can.

Update: FOIA reform failed to pass in the 113th Congress. As Newsweek reported, in an opaque move, Speaker Boehner tabled the government transparency bill. It was never brought up for a vote in the House. Unless the Speaker reconvenes the House, the FOIA bill is likely dead.

“…the fact that the bill was very close and was tabled because of the influence of lobbyists that found a problem in the legislation that didn’t even exist is frustrating not only for those who wanted the bill to pass but for those who want the American democratic process to be a shining light for the world – not an embarrassment,” wrote Scott A. Hodes, at the FOIA Blog.

“For all of his talk about his desire to hold the Obama Administration accountable, we find it unfathomable that that Speaker John Boehner would allow a bill that strengthens and reforms the Freedom of Information Act (FOIA) to die without a vote,” said Danielle Brian.

In reaction, Senator Leahy made the following statement:

“I am deeply disappointed that last night the House failed to pass the FOIA Improvement Act. This bipartisan bill was reported unanimously by the Senate Judiciary Committee last month, and it was the product of months of hard work by Senator Cornyn and me. Our bill is supported by more than 70 public interest groups that advocate for government transparency and it passed out of the Senate unanimously. I would think that members of the House Republican leadership, who have spent so much time on oversight of the Obama administration, would support the goal of making government more accountable and transparent. But instead of supporting this bill, they have chosen secrecy over sunlight.

“The FOIA Improvement Act would codify what the President laid out in his historic executive order in 2009 by requiring Federal agencies to adopt a ‘Presumption of Openness’ when considering the release of government information under FOIA. This bill would require agencies to find a foreseeable harm if they want to withhold information from the public. Prioritizing the people’s interest in what their government is doing, our bill will reduce the overuse of exemptions to withhold information. Federal agencies have been required to apply this standard since 2009. They also used this same standard during President Clinton’s terms in office. It was only during President George W. Bush’s term of secrecy that this standard was rolled back. It appears the House leadership wants to return to that era. It should not matter who is in the White House, information about what their government is doing belongs to the people.

“In a political climate as divided as this, I had hoped that we could come together in favor of something as fundamental to our democracy as the public’s right to know. That government transparency and openness would not just be the standard applied to the Obama Administration but what is applied to every future administration. The FOIA Improvement Act would have done just that.”

Postscript: Writing for the Sunlight Foundation, Matt Rumsey published a sunny post about the death of FOIA reform.

Sunlight has been strongly supportive of the FOIA Improvement Act because it addresses real world problems faced by requesters every day, specifically targeting overly broad exemptions and limiting unnecessary fees. Just like Sen. Patrick Leahy, D-Vt., one of its strongest champions, we aredisappointed that it did not become law.

And yet, we are hopeful for the future.

Most laws never make it out of committee even after repeated attempts spread over multiple years. The FOIA Improvement Act came tantalizingly close to becoming law its first time around.

Rest assured that the FOIA Improvement Act will be reintroduced in the 114th Congress and that the Sunlight Foundation and its allies will be fighting harder than ever for its passage. We want to say a hearty thank you to Leahy, Sen. John Cornyn, R-Texas, and everyone else that worked so hard during the 113th Congress to make these needed reforms possible. We’ll see you next year!

The Washington Post, to its credit, did a post-mortem on how this popular government transparency bill died in Congress. The reason the FOIA reform stalled in the House may not simply have been lobbying by the financial industry, however, as had been previously reported.

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “forseeable harm” requirement as the basis for frequent lawsuits.

This detail led Trevor Timm, executive director of the Freedom of the Press Foundation, to argue that it was the Justice Department that secretly tried to stop FOIA reform, despite the text of the legislation being almost word-for-word the poilcy that the agency itself embraced in 2009.

The “foreseeable harm” section referred to by the Post would force federal agencies to justify withholding information if they wished to do so. Essentially, they would have to show the information would cause “foreseeable harm” if released. Not exactly a tall order. But what makes the Justice Department’s objection so shocking is that this “foreseeable harm” provision would not deviate at all from the Justice Department’s own policy. In fact, it was based on it.

In a March 19, 2009 memo to all federal agencies, Attorney General Eric Holder himself wrote that the Justice Department would carry out Obama’s aforementioned transparency order by rescinding the Bush DOJ’s more restrictive FOIA rules and designating new ones. From that moment on, Holder declared:

[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

Now read the full text of the provision in the just-killed FOIA reform bill that the Justice Department allegedly objected to:

An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law.

As you can see, the two passages are virtually identical. How does the Justice Department think this provision will lead to more lawsuits it would have to defend if they’re not supposed to be defending those lawsuits in the first place?

The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to—or have to—comply with its own FOIA rules.

The DOJ has repeatedly been criticized for failing to enforce, and downright ignoring its own FOIA guidance for years, and their stance on transparency in general has been incredibly hypocritical. For example, Holder has claimed hewanted the torture report to be public as soon as possible, meanwhile fighting in court to prevent the release of any documents on its own torture investigation. Likewise, he’s claimed the Justice Department supports a federal shield law so reporters can protect their sources, while at the same time destroying the already-existing reporter’s privilege in the Fourth Circuit.

Writing for the National Security Archive, Nate Jones looked for lessons from the death of the unanimously supported FOIA bill and decried “Janus-faced support for open government.”  Here was his key takeaway:

Many people –in Congress, in the agencies, in the White House, in the media– proclaim they believe in open government, but don’t really.  To me, that’s the only plausible reason a FOIA bill could garner unanimous approval (thrice in the Senate over the past seven years!) and still die; that’s the only plausible reason agencies whisper that instructions about FOIA currently on the books will ruin the federal government as we know it; that’s the reason for White House silence on the benefits the FOIA Ombuds office not being forced to run its reports though the Department of Justice so they can be “rosified;” that’s the reason the New York Times wins Pulitzers for its FOIA-based reporting, but doesn’t assign a Congressional beat reporter to cover the bill’s death.

How do we overcome these FOIA Januses?  First, we must avoid being stalled out.  We should force Speaker Boehner to act on his pledge that he “look[s] forward to working to resolve this issue [FOIA reform] early in the new Congress.”  FOIA champions Senators Leahy, Cornyn, and Grassley remain in the Senate Judiciary Committee; these senators have an impressive history of defending and working to reform FOIA, no matter which party is in the majorly.  Replacing Representative Issa on the House Oversight Committee is Jason Chaffetz (R-Ut); Democratic FOIA champion Elijah Cummings remains.  Encouragingly, Chaffetz has said he “wants to address the Freedom of Information Act and the difficulties many have in getting the executive branch to comply with FOIA requests.”  Both houses should immediately reintroduce the FOIA bill.  More than 440 members who voted for FOIA reform remain in Congress.

On Saturday, December 20, the New York Times editorial board called for the 114th Congress to revisit the freedom to see government records. In doing so, it made no mention of the reporting on the cause of death by this blog, Vice News, the Washington Post, the Hill, Roll Call or Politico, nor lobbying by banks or federal agencies, nor silence by the White House while most of the press looked the other way.

2014 Open Knowledge Index shows global growth of open data, but low overall openness

Today, Open Knowledge released its global 2014 Open Data Index, refreshing its annual measure of the accessibility and availability of government releases of data online. When compared year over year, these indices have shown not only the relatives openness of data between countries but also the slow growth in the number of open data sets. Overall, however, the nonprofit found that the percentage of open datasets across all 97 surveyed countries (up from 63 in 2013) remained low, at only 11%.

“Opening up government data drives democracy, accountability and innovation,” said Rufus Pollock, the founder and president of Open Knowledge, in a statement. “It enables citizens to know and exercise their rights, and it brings benefits across society: from transport, to education and health. There has been a welcome increase in support for open data from governments in the last few years, but this year’s Index shows that real progress on the ground is too often lagging behind the rhetoric.”

The map below can be explored in interactive form at the Open Knowledge website.

Open_government_data_around_the_world__right_now____Global_Open_Data_Index_by_Open_Knowledge

Open Knowledge also published a refreshed ranking of countries. The United Kingdom remains atop the list, followed by Denmark and France, which moved up from number 12 in 2013. India moved into the top 10, from #27, after the relaunch of its open data platform.

Place_overview___Global_Open_Data_Index_by_Open_Knowledge

Despite the rhetoric emanating from Washington, the United States is ranked at number 8, primarily due to deficiencies in open data on government spending and an open register of companies. Implementation of the DATA Act may help, as would the adoption of an open corporate identified by the U.S. Treasury.

Below, in an interview from 2012, Pollock talks more about the relationship between open data and open government.

More details and discussion are available at the Open Knowledge blog.

Today, Senator Leahy brought a FOIA reform bill to floor… and it passed the Senate

us capitol

Against hope, against the odds, the United States Senate has passed the Freedom of Information Improvement Act (S.2520) today, when Senator Patrick Leahy (D-VT) brought it to the floor and it received a vote without objection.

In a statement released over email, Senate Judiciary Committee Leahy and Senator John Cornyn (R-Texas), lauded the passage of the bill.

“The FOIA Improvement Act of 2014, which was approved unanimously by the Judiciary Committee last month, requires Federal agencies to operate under a ‘presumption of openness’ when considering the release of government information under the Freedom of Information Act (FOIA). This is the same language the President laid out in his historic memorandum in 2009, and which is already being followed by government agencies. The Leahy-Cornyn bill would make this presumption a permanent fixture in FOIA. The legislation would not require the disclosure of information that is prohibited from being released, such as classified information.

Maintaining an open government is fundamental to our democracy. The FOIA Improvement Act will help open the government to all Americans by placing an emphasis on openness and transparency, rather than allowing agencies simply to hide behind exemptions. With the Senate’s action today, it is critical the House take up and pass the FOIA Improvement Act this week so it can be enacted this year.”

The much-needed reform to the Freedom of Information Act isn’t through Congress or made into yet: the U.S. House of Representatives still has to pass this law. (Good news: the People’s House passed the companion bill unanimously, 410-0, back in February.) If the House does vote it through, I assume President Barack Obama will sign it.

A word of caution: it’s not clear yet what agreements were made to bring about this outcome, which had been blocked by a hold by Senator Jay Rockefeller (D-VA). According to a spokesman for Leahy’s office, however, there were no changes to the manager’s amendment. “The Senate passed the bill that was reported by the Judiciary Committee,” he said.

According to an emailed statement from  spokesman for Senator Rockefeller, the chairman of the Senate Commerce committee lifted his hold on the act this evening.

While the Senator retains some concerns with the bill, they have been addressed by report language that establishes Congressional intent that courts should take into consideration the concerns of agencies when they withhold information related to law enforcement efforts. Rockefeller placed the hold out of concerns that the bill would have a chilling effect on internal deliberations within government agencies when agency attorneys prepare for an enforcement action – a move that could potentially undermine consumer protection.  The Judiciary Committee also agreed to a colloquy, based on Rockefeller’s concerns, which aims to make it clear that Congress places high value on law enforcement personnel’s continued ability to internally exchange ideas and legal strategies.

Chairman Rockefeller has made consumer protection a hallmark of his legislative career. He has also been an advocate of open government and transparency throughout his nearly 30 years in the Senate, including in his current role as Chairman of the Senate Commerce Committee which oversees consumer protection. He appreciates the Judiciary Committee’s time in working through his concerns and he supports S. 2520.

Here’s a section-by-section analysis of the FOIA Improvement Act that Senator Leahy’s office released when the bill passed the committee.

“This bill includes several much-needed reforms that will help make federal agencies more open and accountable to the public,” said Patrice McDermott, executive director of OpenTheGovernment.org, in an emailed statement. “Today the Senate proved that they can work across the aisle to pass legislation that will make the government more effective. Congress has clearly recognized that the public’s right to information needs to be strengthened. We are happy to have committed Members of Congress in both chambers and on both sides of the aisle, and we encourage the House to take up the bill as soon as possible.”

The window for its passage is not a wide one.

“With only five legislative days remaining, time is short for the House to pass the bill and send it to the president’s desk. Leahy seems unworried about the short timeframe, however, and open government advocates are optimistic that the House will act quickly on this common-sense transparency reform,” wrote Sean Moulton, director of the Open Government Policy program at the Center for Effective Government.

More on this as more reports and statements emerge.

Here’s the statement from Senator Leahy, as prepared for delivery on the floor of the Senate:

The Freedom of Information Act is one of our Nation’s most important laws. For nearly 50 years, FOIA has given Americans a way to access government information, ensuring their right to know what their government doing. Today, the Senate is poised to build on that important legacy with passage of the Leahy-Cornyn FOIA Improvement Act.

The FOIA Improvement Act will codify what the President laid out in his historic executive order in 2009. It will require Federal agencies to adopt a “Presumption of Openness” when considering the release of government information under FOIA. Prioritizing the people’s interest in what their government is doing, our bill will reduce the overuse of exemptions to withhold information where there is no foreseeable harm. It will make information available for public inspection, and make frequently requested documents available online. It will provide the Office of Government Information Services (OGIS), with additional independence and authority to carry out its work. I believe this legislation reaffirms the fundamental premise of FOIA, that government information belongs to all Americans.

Passage of the FOIA Improvement Act will help open the government to the more than 300 million Americans it serves. The bill is supported by more than 70 public interest groups that advocate for government transparency. The Sunshine in Government Initiative said the Leahy-Cornyn bill “strengthens government transparency by limiting the ability of agencies to hide decades old documents from the public.” At the Judiciary Committee’s business meeting to consider this legislation, which was reported to the full Senate with unanimous support, Ranking Member Grassley said the FOIA Improvement Act “opens wide the curtains and provides more sunlight on the Federal government.” Senator Cornyn, my partner for many years on government transparency, noted our bipartisan efforts “to open up the government and make it more consumer and customer friendly.” I thank both Senators for their work on this legislation.

Today I ask for unanimous consent that the Senate pass S. 2520, the bipartisan FOIA Improvement Act of 2014. We often talk about the need for government transparency, and many also note how rare it is that Democrats and Republicans can come together on any legislation. Today, we have can accomplish both of those things but time is running out. We drafted this bill in a bipartisan fashion after a long and thoughtful process of consultation. It has broad support from a range of stakeholders. I urge all Senators to support passage of this legislation today, so it can be taken up by the House, and sent to the President to be signed into law before the end of this Congress.

This post has been updated with additional statements.