Obama and Affirmative Disclosure


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.)