The U.S. Department of Justice is entrusted with protecting the nation, enforcing the rights of the American people and ensuring fair, efficient and equitable justice under the law. Given that mission, the investment the department makes implementing in the Obama administration’s Open Government Directive deserves both special notice and concern.
As is the case with other federal agencies, the department is now developing and updating a new two-year plan for open government. Version 3.0, Version 2.0, Version 1.1 and Version 1.0 are all online. As in past years, part of that process includes soliciting proposals for that plan from civil society groups, including the Sunlight Foundation.
We submitted the following comments to the Department of Justice this week. Former Sunlight Foundation policy counsel Daniel Schuman’s comments to the Justice Department were submitted on behalf of Demand Progress.
Adopt machine-readable, open formats for all disclosures of bulk data regarding the Foreign Agents Registration Act
The department can and should do better about reforming its approach to proactive disclosure of these records. The current practice of posting individual records in PDFs is hindering the agency’s mission to inform the public, as former Sunlighter Sean Vitka has extensively detailed in the past. We recommend that the department should post FARA disclosures as open data to FARA.gov.
Support legislative reforms of the Freedom of Information Act that reflect the department’s own policy
In March 2016, Vice Media reported on some troubling documents that were obtained by the Freedom of the Press Foundation obtained using the Freedom of Information Act (FOIA). These showed the Department of Justice was lobbying against legislation that would codify the “presumption of openness” that President Barack Obama and former U.S. Attorney General Eric Holder instructed federal agencies to adopt in 2009.
At minimum, we expect the Department of Justice to be open and transparent about its positions regarding open government legislation. There should not be a difference between what its spokespeople are telling the public about its positions on information policy and what it is telling congressional staffers in private.
Release the results of the “release to one, release to all” pilot immediately
When the department launched a proactive disclosure pilot in July 2015, it stated, “The results of this six-month pilot program will be made available to the public, and we intend to be transparent about the pilots and their implementation by participating agencies.”
We have seen no news release nor data regarding this effort, three months after that deadline. We encourage the department to release the results of this pilot, the metrics it used in the pilots, the rationale for measuring the effectiveness of the experiment in improving the disclosure of public records to the public and whether the department now plans to expand the policy or not.
Complete construction of a FOIA portal that enables a member of the public to make a request from any agency
The Department of Justice committed to build a “consolidated online FOIA service” in the U.S. Open Government Partnership National Action Plan in December 2013.
Beverley Lumpkin, a spokeswoman for the department, told the Huffington Post, “We’re definitely committed to launching a consolidated request portal that will allow the public to submit a request to a single agency from single website.”
We would like to see evidence of the department’s commitment to this project. There has been no work done on the FOIA software by 18F since July 2015. We strongly encourage the department to update the public on this project and work with 18F to follow through on its commitment to build FOIA software that allows enables both requestors and government employees to process and track requests.
We also recommend adding an analytics page to FOIA.gov to show how long agencies take to acknowledge and then respond to FOIA requests.
The department should also explore the feasibility of building a standardized read/write application programming interface (API) for FOIA requests. Such an API would open up the opportunity for the private sector to compete to build the best software to request, track and receive FOIA requests using the government’s platform.
Additionally, we suggest that the department:
- Commission a study on FOIA technology that maps the ecosystem of FOIA software currently in use across the federal government, including capabilities, costs and maintenance, and release those findings as open data.
- Estimate how much time and money could be saved across federal government by developing this FOIA software portal
Commit to improving governmentwide compliance with FOIA requests by other agencies and add staffing capacity
In 2014, the United States set a new record for censoring and denying FOIA requests, which the federal government then surpassed in 2015. The National Security Archive found that the majority of federal agencies do not post records in their online FOIA reading rooms. The department’s legal posture with respect to lawsuits is also not in keeping with the president or attorney general’s memoranda that establish a “presumption of openness.”
The department should not only lead by example, but work with the FOIA ombudsman to proactively use its influence and authority to ensure federal agencies are adopting a presumption of openness. If additional staff are needed to improve FOIA compliance in the department and other agencies, we recommend that the agency request additional funding to for staff to support open records disclosures from Congress.
Reduce the FOIA backlogs by proactively posting frequently requested documents and data
Research has shown for years that the majority of FOIA requests are coming from commercial interests. The department should work with agencies to ensure that frequently requested records and datasets are proactively prioritized and published at Data.gov, freeing up resources to address FOIA requests from media organizations. We recommend that the Department work with the agencies that receive the bulk of FOIA requests to proactively track and publish financial data about fees paid.
Complete and update the department’s enterprise data inventory
Currently, only 13 percent of the public datasets the Office of Management and Budget (OMB) found in the department’s enterprise data inventory have been published. It’s been more than a year since Sunlight first heard from OMB stating that each agency must release comprehensive lists of its information holdings to the public.
Release more memoranda from the Office of Legal Counsel
There have been no new documents posted to the department’s Office of Legal Counsel page since 2010. Broadly speaking, we hope the department will take proactive steps to embrace the principle that there should be no secret laws or secret interpretations of laws in the federal government. As in the past, we strongly encourage the Office of Legal Counsel to comply with the agency’s own guidance on releasing judicial opinions to the public.
We believe the Department of Justice will become more open and transparent with these changes, and hope to see them implemented going forward.