Yesterday, the Obama administration made a few new announcements about its vision for technology in government.

Between the Presidential Memorandum, the Digital Government Strategy (html, pdf), and the Presidential Innovation Fellows Program, they covered a lot of ground. By far, though, the most interesting parts to me were about creating the "new default" for open data:

1. Make Open Data, Content, and Web APIs the New Default

...Under a presumption of openness, agencies must evaluate the
information contained within these systems for release
to other agencies and the public, publish it in a timely
manner, make it easily accessible for external use as
applicable, and post it at agency.gov/developer in a
machine-readable format

At first blush, this seems very exciting -- we have long requested that agencies make better decisions about what information gets released and what doesn't. I'm concerned, however, that this new requirement looks the same as many, many requirements that have come before it.

The Paperwork Reduction Act, first passed in 1980...

(d) With respect to information dissemination, each agency shall— (1) ensure that the public has timely and equitable access to the agency’s public information

...requires as much, through requirements both met and ignored.

OMB Circular A-130, first written in 1985:

Because the public disclosure of government information is essential to the operation of a democracy, the management of Federal information resources should protect the public's right of access to government information... Agencies must plan in an integrated manner for managing information throughout its life cycle. Agencies will:

(a) Consider, at each stage of the information life cycle, the effects of decisions and actions on other stages of the life cycle, particularly those concerning information dissemination;

The Presidential memo, from day one of the administration:

Executive departments and agencies should harness new technologies to put information about their operations and decisions online and readily available to the public.

The Open Government Directive requires agencies to create...

A strategic action plan for transparency that (1) inventories agency high-value information currently available for download; (2) fosters the public’s use of this information to increase public knowledge and promote public scrutiny of agency services; and (3) identifies high value information not yet available and establishes a reasonable timeline for publication online in open formats with specific target dates

...which most agencies failed to do, with a few notable exceptions.

The Presidential Memo on Regulatory Compliance Data requires plans and a review of data:

First, agencies with broad regulatory compliance and administrative enforcement responsibilities, within 120 days of this memorandum, to the extent feasible and permitted by law, shall develop plans to make public information concerning their regulatory compliance and enforcement activities accessible, downloadable, and searchable online.

...but only a handful of agencies ever released those plans, and of those, only DOT attempted to be comprehensive in their review.

The US Open Government Partnership National Action Plan:

Provide Enforcement and Compliance Data Online. Agencies will continue to develop plans for providing greater transparency about their regulatory compliance and enforcement activities, and look for new ways to make that information accessible to the public.

There are probably many more similar requirements. One policy after another has required that government officials make better decisions about what gets released to the public, asserting that openness is the new presumption (like the Holder DOJ memo on FOIA, as yet another example). What's strange, though, is that the new strategy suggests that open data is the "new" default. Did the other policies not work? And if not, how will this new technology strategy achieve what the other policies haven't?

Maybe the new strategy will create processes and incentives that create better decisions out of government officials. We certainly hope so. But when reading through yesterday's announcements, it's hard not to have some doubt over how much new information will be released. Ultimately, these initiatives succeed or fail based on whether new things become knowable, and whether new things get done. But throughout four years of the Obama administration, we've learned a lot about the limitations of aspirational policy declarations. What's to separate this new policy from what's come before it?

Now, there are certainly good things within these plans. Clearly much of the way citizens interact with government will take place through mobile platforms, and nothing but good can come of placing fellows throughout government to help design new initiatives.

But for each exciting new development, there's something that looks to me like a retreat.

The fellows program brings new perspectives into government, but defines its open data goals narrowly:

This program aims to stimulate a rising tide of entrepreneurship that uses data from governmental and non-governmental sources to create tools that can help Americans better navigate their world, such as by finding the right health care provider, identifying the college that provides the best value for their money, saving money on electricity bills through smarter energy shopping, keeping their families safe by knowing which products have been recalled, and much more.

That's great, everyone wants entrepreneurship. But why limit an open data initiative to that category of information? The first two years of the Obama administration's transparency work were devoted to empowering citizens, while this initiative is about empowering consumers and entrepreneurs. Again, those are both worthy goals, but why has the technology agenda's scope narrowed?

In short, it's because the administration has defined comfortable ways of engaging with accountability questions. The White House (admirably) created Ethics.gov, but other than that, Obama the reformer has largely gone quiet ever since the 2010 defeat of the DISCLOSE Act. The affirmative ethics agenda turned into defensiveness. The transformation of poltical power through technology that characterized the Change.gov agenda from 2009 doesn't show up at all in the government-wide technology agenda in 2012.

Maybe it's unfair to respond to a new technology plan with issues that are probably outside the control of both the CTO and CIO behind the strategy. But the administration that planned for regulatory agencies to "conduct the significant business of the agency in public" has removed regulatory documents from public view at the peak of their relevance, and the administration that promised to "shine a light on pork barrel spending" still hasn't enforced a Bush era executive order requiring earmark request transparency.

Of course, we never expected a new technology strategy to give any real help to these issues; former CIO Vivek Kundra's 25 point plan was about managing IT investments, and was largely agnostic towards real information policy concerns.

But we should judge policies, especially Presidential policies, on both what they do and what they don't do. This new strategic plan does a lot, but it also leaves some very telling omissions.

The following letter was just sent to the Department of Labor, on behalf of Sunlight and a number of our allies, requesting that the DOL re-post materials online that they removed when they abandoned proposed regulations regarding child labor in agriculture. As the letter says, no major administration decision should be accompanied by related materials' disappearance from public view.

The full text of the letter follows below.

Letter to the Department of Labor on Rulemaking Transparency

(Start letter)

Nancy J. Leppink Acting Wage and Hour Administrator U.S. Department of Labor 5/23/2012

cc: Cass R. Sunstein, Administrator, Office of Information and Regulatory Affairs Secretary Hilda Solis, U.S. Department of Labor Gabriela Lemus, Director, Office of Public Engagement, U.S. Department of Labor

Dear Administrator Leppink:

The undersigned organizations dedicated to government transparency and accountability are writing to request that you re-post the documents online relating to now-withdrawn proposed rules concerning child labor in agriculture.

Documentation and supporting materials that accompany rulemakings should remain online for a reasonable period regardless of a proposed rule’s status. Removing substantive policy materials immediately after crucial decisions is inconsistent with Obama administration policies on openness and transparency, and limits public knowledge and understanding of agency decisions.

Whether a proposed rule is withdrawn as a result of a change in administration policy, political considerations, or failure to reach an agreement on the rule’s scope, explanatory materials provide context for the decision and may help future debate and understanding of the issue.

The documents at issue in this case were originally available on the Department of Labor’s Wage and Hour website. The documents, which were removed from public view when the rule was withdrawn, included an analysis illustrating the differences between the current rules for child agricultural workers and the proposed changes, a fact-sheet explaining the proposed rule, and a document responding to apparent misconceptions about the proposal.

There is a clear public interest in ongoing access to documents related to proposed rules even when those proposals are later withdrawn. As the proposed rule still remains available to stakeholders through the Federal Register, so too should the supporting documentation.

No major administration decision should be accompanied by related materials’ disappearance from public view.

We urge you to put the documents back on your website to ensure that interested members of the public have adequate access to this important information and can more fully understand the contents and context of the withdrawn rule. If you would like to discuss these issues further, please contact John Wonderlich, Policy Director at the Sunlight Foundation, at (202) 742 - 1520, x234, or jwonderlich@sunlightfoundation.com.

Sincerely,

American Association of Law Libraries American Booksellers Foundation for Free Expression American Library Association B.R. Hook & Missouri Journal Center for Media and Democracy Citizens for Responsibility and Ethics in Washington Defending Dissent Foundation Essential Information Feminists for Free Expression Government Accountability Project Mine Safety and Health News National Priorities Project OMB Watch OpentheGovernment.org Project on Government Oversight The Sunlight Foundation Washington Coalition for Open Government

(end letter)

I should also include the disclosure (as I've said elsewhere) that my girlfriend works on issues related to child labor in agriculture, but not on this disclosure question, which stands entirely on its own, separate from questions of the proposed regulations.

Sunlight is very happy to endorse a new report, Acheiving the Potential, The Future of Federal E-Rulemaking. (pdf)

The report is the result of months of work and negotiations from agency employees, academics, former administrators, and experts in rulemaking.

Their task wasn't simple, since e-rulemaking combines some of the toughest technological challenges facing the federal government.  A combination of uncertain funding, poor cross-agency coordination, unclear authority structures, perverse involvement incentives, and spotty data and procedural standardization all stand in the way of a truly successful government-wide e-rulemaking portal.

The scope of the e-rulemaking challenge only makes this report's production more remarkable.

Chaired by former OIRA head Sally Katzen, and ably prepared by Cynthia Farina, Cornell Law Professor, the initiative boasts an impressive list of working group participants from private industry, non-profits, and government.  I understand that this working group, unlike many advisory committees, saw intense negotiations and collaboration, since e-rulemaking's footprint makes for an immense shared stake across different sectors.

The whole report is worth a read, and serves as a great introduction to the current state of regulatory authority, federal IT management successes and shortfalls, and a roadmap to a modernized e-rulemaking system.  The effort itself is also worth close consideration, as it serves as a compelling example of a public-private and cross agency initiative built on practical concerns and established expertise.

We're happy to add our endorsement to their effort, and hope implementation of their recommendations is as successful as their formation.