Earlier this afternoon the Department of Justice and Attorney General Eric Holder celebrated Sunshine Week by highlighting the federal government's progress "in realizing the promise of the Freedom of Information Act." Holder and four additional speakers pointed out what they called positive steps taken in 2011 to reduce request backlogs, improve processes, and operate under a "presumption of openness." This positive news was tempered by today's Associated Press report that indicates that the federal government is still struggling with FOIA backlogs.

In touting the Department's accomplishments, Holder  looked toward the future and presented some improvements to FOIA currently being instituted by the DOJ. He announced  the DOJ will start posting monthly logs of FOIA requests made to senior leadership offices. The logs will "publicly identify the subject matter and disposition of each request" in an attempt to make it easier for people to locate information they are interested in. The department is also working on a new way for the public to submit and track FOIA requests to the DOJ's senior leadership online.

Additionally, the department is rolling out two new tools in an attempt to make FOIA.gov more responsive; a simplified government-wide search function and an integrated FOIA request process.

Four speakers from across the federal government joined Holder and touted the progress their offices made on FOIA issues

• Carolyn Colvin, Deputy Commissioner at the Social Security Administration, spoke to the SSA's successful implementation of a FOIA Process Evaluation Working Group, which helped improve efficiency.
• Austin Schlick, General Counsel and Chief FOIA Officer at the FCC, highlighted the overhauled FCC website and greater online access to Commission information.
• Darren Ash, CIO and Chief FOIA Officer at the Nuclear Regulatory Commission, described the NRC's efforts to deal with a surge of FOIA requests following the tsunami and nuclear crisis in Japan last year.
• Robert Howarth, Deputy Director of Correspondence, Document Production and FOIA Management at the Department of Interior, detailed a reorganization of FOIA leadership at the DOI.

Attorney General Holder's full remarks can be read here.

Update: The National Security Archive has responded to Holder's speech. They strongly criticize the Attorney General for citing discredited statistics in his remarks. They also note that the DOJ has attempted to issue reductive regulations, waged a "war on leakers", and increasingly relied on several exemptions throughout Holder's tenure. The National Security Archive recently awarded the Department of Justice their Rosemary Award for worst open government performance by a federal agency in 2011.

Policy Fellow Matt Rumsey wrote this post. 

The Obama transition team released two new policies this week, a Creative Commons license and a radical disclosure policy. These changes don't just signal a new relationship to the public, but also create a paradigm shift in how government manages information, and could lead to much bigger things to come from the administration. Requirements for affirmative disclosure move the onus of dissemination to the government (unlike FOIA, which relies on citizen requests), and might just revolutionize the way our government views its communications.

Creative Commons

First, the transition team changed its copyright policy, and is now publishing under a Creative Commons Attribution 3.0 License. This is great news, since, contrary to popular opinion (see the comments here), transition materials aren't automatically in the public domain, despite the .gov web address. This means that reuse of their work is now encouraged, within carefully crafted guidelines, and, more importantly, that the transition team is thinking about the real effects of their publication methods. That's exactly what the Creative Commons was designed to do: to add a level and control and nuance to a legal framework designed around limitations. Whereas Copyright is about control, the Creative Commons and copyleft movements are about empowerment, through carefully crafted designations created by brilliant lawyers. (For example, "You are free to Reuse... or Remix, [so long as you] attribute the work in the manner specified by the author or licensor...)

Creative Commons licenses are affirmative designations with real legal force, enabling creativity and reuse through a carefully crafted set of nuanced licenses. (Keep that in mind...)

At the Table

Next, the transition team introduced their Seat at the Table feature. At first glance, "Your Seat at the Table" might look like a kitschy PR portal. What is the entire change.gov site supposed to be, if not a seat at the table? A closer look, however, reveals that this specific feature is in fact different from the rest of the site -- it's the result of a significant policy change. From the (actual) memo sent out from John Podesta, as posted on the site (pdf):

Scope: The following information will be posted on our website: 1. Documents: All policy documents1and written policy recommendations from official meetings2 with outside organizations. 2. Meetings: The date and organizations represented at official meetings in the Transition headquarters or agency offices, with any documents presented as noted above.

This scope is a floor, not a ceiling, and all staff are strongly encouraged to include additional materials. Such materials could include documents (recommendations, press releases, etc.) presented in smaller meetings or materials or made public by the outside organization without a connection to an official meeting.

The footnoted section contains the real meat, since it defines what must be disclosed:

1This policy does not apply to non-public or classified information acquired from the Agency Review Process and internal memorandum. 2 An “official meeting” is defined as a meeting with outside organizations or representatives of those organizations to which three or more outside participants attend.

To summarize, the transition team has decided that all policy documents and recommendations presented at official meetings with outside groups will be posted online, and they're defining "official meetings" as those at which three or more representatives attend.

Now, it's tempting to quibble with the definition of "official meeting", but remember, this is the transition team, not the administration. They're only operational for a few months, and nothing like this has been tried before in this context, so their policy is entirely appropriate. They're posting primary resources, in near real time, and at least acknowledging the public's role as overseer and partner, and nothing says they have to. They've created a new designation (the official transition meeting), and used that designation to generate public access and oversight.

This is a brave, bold move, and the transition team deserves our praise.

Affirmative Disclosure?

All this raises a more significant question, however. What could such a program look like across the entire executive branch? In other words, does "Your Seat at the Table" scale? Could there be a system of affirmative designations that broadly opens executive branch information, just as Creative Commons has in the creative sphere?

This is pretty complex question, but we do have some other examples of government information programs that are based on managing carefully crafted records designations. Here are two...

First, think of classification, the official process by which our government keeps secrets. It's so prolific that it costs about $8 Billion per year (pdf). (That doesn't count the CIA's classification budget, which is, well, classified.)

Second, we have General Records Schedules, which are designations that the National Archives uses to standardize how administrative records are kept across the government. The FDA issues regulations on meat, and NARA issues regulations on paperwork. (Though NARA has initially resisted playing any enforcement role, despite failing preservation procedures government-wide.)

These are two enormous government programs dedicated to controlling public information. My question is this: If we have set up a complex, $8 Billion system for making secrets, and have created a complex system for managing the flow of paper throughout government, where is the public disclosure system? Who should be deciding what the public can see, and how they see it?

Should we be thinking about creating a system for proactive disclosure, where documents or data can be designated for release, RSS, API, upload, download, IG review, FTP, or whatever?

Especially after the last administration has made it easier to make secrets and obfuscate, shouldn't the Obama administration make it easier to say "Hey, someone should really be taking a look at this!".

This makes sense as a whistleblower provision, or even as a data management practice. Imagine if witnesses to malfeasance were empowered to flag troublesome documents for publication, or at least for further review, and that those designations carried some administrative or legal force, like Creative Commons licenses, or the designation of a "public meeting". Imagine if a Webmaster or CIO were capable of submitting requests to the OMB data task force, or to the Public Data Advisory Team.

Even better, imagine if all government data were given a proactive designation by an empowered centralized Information Officer, Transparency Czar, or Deputy CTO. We already do this for secret-keeping, and for historical preservation. Real-time public access should be at least as important as history and secrecy.

(discussion also on the Open House Project google group.)