New Directive Would Foster Open Government

In a conscious and far-reaching attempt to change the culture of secrecy that prevails within many government agencies, the Obama Administration today issued a directive (pdf) that orders each federal agency to establish an open government program with mandatory new information disclosure obligations as well as opportunities for public participation.

Moving beyond the familiar rhetoric of openness, the directive imposes substantive new publication requirements, sets deadlines, promotes sharing of best practices, and promises further steps to come.

So, for example, within 45 days each agency is obliged to publish online “at least three high-value data sets” that have not been previously available online.  Within 60 days, each agency must establish a portal for public access to its open government activities, including provision for public feedback and input.  Within 90 days, OMB will issue guidance on the use of new incentives to promote further openness.

The new directive does not extend to classified national security information or controlled unclassified information, both of which are to be addressed in other pending executive orders.  But it does direct agencies to reduce any backlogs in Freedom of Information Act requests “by ten percent each year.”

Significantly, the new open government policy directive did not emerge from the exercise of “checks and balances” by the other branches of government.  Congress did not urge the Administration to promote a culture of openness, much less compel its adoption.  Instead, it is a unilateral executive branch effort, akin in its conception to Energy Secretary Hazel O’Leary’s landmark Openness Initiative of the 1990s, but now extended for the first time to the entire executive branch.

Success is not guaranteed.

The previous Administration used to invoke the theory of “the unitary executive,” which generally holds that all executive branch power and authority is vested in the President.  But the opposite may be closer to the real state of affairs, in the sense that the exercise of presidential authority is dependent on innumerable acts of compliance by scattered officials any of whom can, whether through disobedience or incompetence, frustrate the implementation of policy.  And the more ambitious the proposed change, the more likely it is to encounter resistance.

The directive is also predicated on the existence of a significant number of citizens who are motivated to engage in public policy deliberations and who are capable of doing so. The quality of public comments on the development of the open government directive last summer, which sometimes suffered from digressions into extraneous matters, was not consistently encouraging on that score.

The declared objective of the new directive is “to create an unprecedented and sustained level of openness and accountability in every agency,” and it shows every sign of good faith in attempting to realize that objective.  In any case, given the directive’s well-defined milestones and deadlines, it will soon be clear whether and to what extent the new openness initiative succeeds.