Affirmative Obligation to Disclose 

Government should have an affirmative legal obligation to disclose information to the public in a timely manner, thereby expanding the presumption of openness. Our national public access laws are relatively recent in our history. Until 1966, with passage of FOIA, there really was no law giving the public any right to government information. For all its usefulness, FOIA is not a true right-to-know law. FOIA puts government in a passive role; the law is not triggered unless there is a public request. Under a national right-to-know law, the approach would be reversed. Federal agencies would have an affirmative obligation to disclose information, the public a passive role to review and use it.

Agencies should be required to disclose newly collected electronic information holdings in a timely manner and justify in writing reasons for withholding information. Reasons for nondisclosure should be no more numerous than the current FOIA exemptions or responsibilities for national security classification.

While it can be argued that this will put federal agencies on an endless treadmill, spending all their time making information publicly accessible instead of doing the work of the people, the reality is that it is increasingly easy to make electronic information – in all its formats – publicly accessible. Moreover, as discussed throughout this report, a functioning democracy requires an informed and active citizenry, which can be accelerated through affirmative dissemination of government information. Thus, this law would cover all information holdings – from spending information to regulatory actions to enforcement actions to directories of federal employees to e-mails to audio and video collections.

- From the 21st Century RTK Agenda

Use existing library networks to implement increased transparency and promotion of greater use of information 

Agencies’ implementation of increased transparency and promotion of greater use of information should include strategic and aggressive use of existing library networks, including the Federal Depository Library Program (FDLP). An important aspect of any effort to increase government transparency is to make sure the public is aware of and able to use the new information. For this, libraries across the nation – public, academic, legal, research, and many others – are perfectly positioned to help notify and explain the new access to the public. Many Americans look to libraries for assistance in finding or understanding information, especially for those members of the public with no or limited Internet access. Libraries provide a broad range of E-Government services and resources but these have not as yet been successfully coordinated with the various Federal agencies. Librarians, as managers of information, can be among the most knowledgeable and effective advocates. Greater public participation in government and expanded use of government information are the true goals of increased transparency, and the federal government should develop a clear plan to use libraries in completing that process to achieve those goals.

The president should direct heads of agencies to coordinate E-Government and other programs of information dissemination with libraries in general and with the FDLP more specifically. This program, created by Congress and administered by the Government Printing Office, provides no-fee permanent public access to a broad range of government information. The president should direct agencies to insure that their government information products are included in the FDLP and thus public access assured.

- From the 21st Century RTK Agenda

Encourage Legislation to Enforce Transparency 

The president should encourage Congress to establish a criminal penalty for willful concealment or destruction of non-exempt agency records requested under FOIA, as well as penalties for employees and contractors who repeatedly fail to comply with CUI policies and employees and contractors with original classification authority who repeatedly fail to comply with proper classification policies.

Such penalties would be the flip side of the criminal prohibition against unauthorized disclosure. Such penalties would occur after an employee or contractor has been notified of non-compliance and has gone through re-training.

Enhanced citizen suit power should be explored. A private citizen can bring a lawsuit against a government body for engaging in conduct prohibited by statute. For example, a citizen can sue a corporation under the Clean Water Act for illegally polluting a waterway. A private citizen can also bring a lawsuit against a government body for failing to perform a nondiscretionary duty. For example, a private citizen could sue the Environmental Protection Agency for failing to promulgate regulations that the Clean Water Act required it to develop. The president should ask the Government Transparency Officer to advise him on options for citizen suit power outside of FOIA to encourage greater transparency.

- From the 21st Century RTK Agenda

Establish Training on Transparency Requirements 

The president should establish mandatory training for agency officials on transparency requirements and policies to ensure better implementation, including specific trainings for employees and contractors with classification authority and responsibility for implementing the framework on Controlled Unclassified Information (CUI).

Often, due to lack of training and inadequate guidance, officials and employees making disclosure decisions or classification determinations are not fully aware of all related policies and requirements. In some situations, poorly informed decisions can be corrected through appeals, but these cost time and money to pursue. The government needs to do a better job of getting the decision right the first time. Successful completion of training will be counted as a positive factor for employment, evaluation, and promotion decisions.

- From the 21st Century RTK Agenda

Make documents produced by government contractors in their role as gov't surrogates subject to FOIA 

The president should direct agencies that when they outsource any of their duties, not limited to records management duties, the contracts should contain provisions specifying that the records produced by the company in its function as a government surrogate belong to the agency and available, as agency records, under FOIA.

On Dec. 31, 2007, President Bush signed the OPEN Government Act of 2007 (S. 2488), which includes long-sought reforms of the Freedom of Information Act (FOIA). In response to the outsourcing of so many federal government functions, one provision of the OPEN Government Act extended FOIA to include any information that "would be an agency record" that is maintained by "an entity under Government contract, for the purposes of record management." Currently, the breadth and implementation of this important provision remain untested. The president should clarify the records management responsibility that contractors must abide by and better establish the level of access agencies will provide to contractor produced records.

- From the 21st Century RTK Agenda

Create Institutions to Evaluate Agency Transparency 

The president should create a Dissemination/Transparency Working Group made up of new agency Senior Dissemination/Transparency Officers and task it to establish metrics for outcome (not process) to assess agency transparency and use them to regularly evaluate and report on progress. The group would be headed by the Government Transparency Officer. The working group must fully include outside participants. The Dissemination/Transparency Working Group should be subject to the Federal Advisory Committee Act.

The president should create a public interest review board to advise the government on information dissemination and to provide advice when an agency refuses to disseminate information to the public. Two potential models are administrative law judges and the Interagency Security Classification Appeals Panel (ISCAP).

Administrative law judges preside at an administrative trial-type hearing to resolve a dispute between a government agency and someone affected by a decision of that agency. In adjudicating cases before them, Administrative Law Judges conduct formal trial-type hearings, make findings of fact and law, apply agency regulations, and issue either initial or recommended decisions. Administrative Law Judges have complete decisional independence, and to protect that independence, have "tenure very similar to that provided for Federal judges under the Constitution."

The Interagency Security Classification Appeals Panel (ISCAP) provides the public and users of the classification system with a forum for further review of classification decisions. ISCAP’s effectiveness as a model is in the disclosures it facilitates in the first place: agencies like to avoid the specter of being reversed on appeal, so they go ahead and release more information on their own than they would otherwise.

This board would be distinct from the Public Interest Declassification Board (PIDB), which is an advisory committee established by Congress in order to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.

- From the 21st Century RTK Agenda

Establish A Transparency Officer at Each Agency 

Each agency should establish a senior officer in charge of dissemination/transparency, tasked to balance information and dissemination regimes, with a particular emphasis on transparency.

This would be a new agency position, possibly within the office of the agency’s Chief Information Officer. Additionally, as new CIOs are appointed, they should be required to have at least as much expertise in information policy areas as in technology areas. Working with the CIO, this officer should be able to approve and disapprove programs and system acquisitions.

- From the 21st Century RTK Agenda

Create an Office of Transparency 

The president should create a new central Office of Transparency (run by the Government Transparency Officer (GTO) to oversee disclosure and dissemination practices, promote increased transparency throughout government, and address privacy rights.

The office would be responsible not just for transparency, but the plethora of regimes that restrict the dissemination of information as well. This individual and his or her agency would be in the best position to balance all the government's information and dissemination regimes, with a particular emphasis on transparency. This office must be given authority to disapprove programs and, working with the Chief Technology Officer, system acquisitions and the budgets for them.

- From the 21st Century RTK Agenda

New Directives to Protect Whisleblowers from Punishment 

Directives and legislation providing protection for whistleblowers who disclose waste, fraud, or abuse within an agency, and punitive processes for managers who retaliate against those whistleblowers in their performance reviews should be established. irectives should clarify to all agencies, including law enforcement and intelligence agencies, the expectation that whistleblowers be robustly defended from reprisals and that whistleblower claims be dealt with quickly and fairly.

The president should establish a culture that supports whistleblowers by rewarding disclosure and punishing retaliation in performance appraisals. The president must also work with Congress to enact comprehensive federal whistleblower reform that extends meaningful protections to law enforcement and intelligence agency whistleblowers.

- From the 21st Century RTK Agenda

Provide Incentives to Promote Disclosure 

The president should make transparency a factor in federal employee performance evaluations where it is a part of the job description. Changing the culture of government to be more transparent will require direct individual accountability for employees and supervisors and recognition of work to improve transparency. Too often in the past, information requests have been denied, new online tools delayed, and information removed without any specific official or employee being held responsible for the action – either internally or externally. As much as possible, this accountability should be structured as positive incentives for employees – better performance evaluations for those employees that make strong contributions to ensuring an agency or office is conducting business more transparently.

The next administration should require an annual Transparency Scorecard (based on the metrics established by the Working Group) for each agency, with an overall report by OMB, which would be part of the E-Government Act report or a larger Management Reporting structure. Competition is a great incentive when seeking fast changes in performance. Government should create such a competitive incentive by requiring publicly disclosed Transparency Scorecards covering a wide range of agency dissemination activities. Congress should receive the annual OMB report and could request a report from elsewhere, such as GAO, on a regular basis. The possibility of adapting the Program Assessment Rating Tool (PART) should be explored. A PART review helps identify a program’s strengths and weaknesses to inform funding and management decisions aimed at making the program more effective. The assessment would have to be adjusted to both catch transparency/dissemination program failures and analyze why a program falters, as well as what is necessary to strengthen it to accomplish the goals of transparency and dissemination.

Transparency awards (Window on Government Award) should be created and regularly given to acknowledge agencies and civil servants that have made government more transparent. Awards are a simple but clear indication of the administration’s approval for transparency efforts. Acknowledgement of the best new tools, highest performing offices, and most innovative efforts is one of the best ways to make other parts of government aware of these actions with the hope they will create similar changes elsewhere.

- From the 21st Century RTK Agenda

Direct the OMB to identify the public’s transparency rights and require agencies to post these rights in government offices 

The president should direct the Office of Management and Budget to identify the public’s transparency rights and require agencies to post these rights in government offices and use them in agency communications with the public (e.g., public meetings). A simple straightforward notification of the public's right to know could have benefits for both public awareness and mindfulness of public officials. The list of rights compiled by OMB should include key rights afforded in statutes and the Constitution.

- From the 21st Century RTK Agenda

Provide Adequate Funding and Resources for FOIA offices and E-Government Initiatives 

Implement a formula that establishes a minimum percentage of the agencies’ Public Affairs Office (PAO) budgets to be spent on FOIA expenses. Without adequate resources devoted to FOIA, agency morale and the ability to fully adhere to the requirements of the law will not likely improve. GAO should be asked to analyze the current funding for FOIA and assess funding sufficiency based on agency size, FOIA personnel, number of requests, and number of pages requested per year. Then the Congressional Budget Office should be asked to generate a formula for appropriate funding of FOIA offices in agencies, which might include an optimum ratio between PAO and FOIA funding. This recommendation might result in the creation of specific line-item budgets for FOIA, rather than its incorporation in general agency funding. As FOIA studies are completed and offer a clearer picture of the problems and challenges being faced at each agency, the formula could be adjusted to specifically address each agency’s FOIA needs.

The President should instruct agency Chief Information Officers, working with the agency Transparency Officer, to build content management systems such that FOIA-able information can be identified and retrieved. Currently, responding to FOIA requests is labor intensive and expensive for most agencies because their IT systems were not designed to enable the retrieval of older information and records.

The president should instruct agency Chief Information Officers, and should task the CIO Council, to develop and publish for comment a strategic plan to rebuild government information dissemination capacity and move agencies into the Web 2.0 world. The government needs to rebuild technical capacity for information dissemination in the agencies (and government-wide), because in recent years, most technical work regarding dissemination has been outsourced, and there is not sufficient capacity among governmental personnel to even oversee the work of contractors, much less develop technical dissemination initiatives within the government. This assessment should include resource needs for building agency technical capacity.

OMB/the Office of Transparency should (re)issue guidance on information that must be on agency homepages and should require agency reports on compliance with the requirements of the E-Government Act, the E-FOIA amendments of 1996, and recommendations of the Dissemination/Transparency Working Group. Battles over website real estate often create disincentives to make information easily available. Decisions about what gets posted, and where, vary from agency to agency, and the criteria are at best unclear and generally not disclosed to the public. In recent years, for instance, despite the mandates of the E-Government Act and guidance from OMB that links to FOIA reading rooms be on the homepages of agency websites, these links have been removed from some websites because they are not heavily used or other agency concerns are given priority. Information disclosure links must be easily found and easily used.

The next administration should create incentives to convert government documents to no-fee, electronic, publicly available documents. Currently, private companies enter into non-competed agreements with agencies – often Memoranda of Understanding that are not public – and create subscription/charge-based access to public records that they have digitized at “no cost” to the government. There is little ability for alternative models, such as consortia of government entities, libraries, and others, to present themselves as options to maintain no-fee electronic public access in the face of such non-competed agreements.

The president should establish incentives for agencies to clear up their backlogs. One incentive would be establishing a technical assistance fund to provide additional support to agencies with significant backlog problems. Some agencies’ backlogs are the result of unique issues faced by the agency in responding to requests. Some agencies may handle requests with a greater emphasis on historical records, e-mail communications by officials, or records that require multiple reviews prior to disclosure. This fund would provide such agencies with an opportunity to receive assistance in addressing such challenges. The fund should be established at the Department of Justice or the Office of Government Information Services at the National Archives and Records Administration. The fund would also function as a check on agencies’ requests for additional time in responding to requests. In a FOIA lawsuit, an agency can seek an “Open America” stay from the court to grant the agency additional time in responding to a request because its existing backlog prevents that agency from responding until the requests received earlier are cleared.54 Typically, to obtain such a "stay," an agency must show that it is overburdened by requests and is exercising "due diligence" to reduce its backlog of pending requests. Requesting assistance from this fund would be seen a requisite for “due diligence” in trying to reduce backlogs. Therefore, agencies not requesting assistance would be allowed to receive such stays. Another incentive would be a commitment by OMB to allocate more funds to agencies that purchase electronic record and content management systems that meet standards for interoperability and include explicit provision for successfully responding to FOIA and E-discovery demands.

- From the 21st Century RTK Agenda

Ensure that guidelines for the free flow of scientific information are implemented in a comprehensive manner. 

The President’s Science Adviser should ensure that guidelines for the free flow of scientific information are implemented in a comprehensive and timely manner. On the heels of repeated problems with the publication of important studies in various agencies, there has been some movement in the right direction on policies governing review and clearance of scientific materials. However, the manner in which agencies adopt these new policies along with proper oversight and enforcement will be critical to counteract the deep-seated practices of reviewing findings through a political lens and delaying or manipulating reports that conflict with agency policies. The practice of releasing early drafts of official agency scientific documents, before OMB or interagency review, should be considered.

- From the 21st Century RTK Agenda

Official agency communications policy should be publicly available on the agency's website 

The official agency communications policy should be publicly available on the agency's website. Public affairs staff should have a plan for disseminating the policy to agency scientists and should conduct trainings in effective media communication that emphasize scientific openness.

- From the 21st Century RTK Agenda

Agency communications policies should also inform employees of their rights under the Whistleblower Protection Act and the Lloyd 

Agency communications policies should also inform employees of their rights under the Whistleblower Protection Act and the Lloyd-La Follette Act, which ensures unrestricted employee communication with Congress. The policy should comply with the Anti-Gag Statute and should provide protections against overly broad non-disclosure policies. It should be clear that employees can go to their agency's Inspector General Office to get clarification on their whistleblower rights and options without any possibility of retaliation.

- From the 21st Century RTK Agenda

Scientists should not be required to obtain pre-approval from public affairs before responding to a media request 

Agency policies should spell out a clearly defined role for the PAOs, including timely response to media inquiries and providing journalists and agency staff with accurate information, but should also prevent them from being “gatekeepers of information.” Scientists should not be required to obtain pre-approval from public affairs before responding to a media request. However, requiring scientists and researchers to give public affairs prior notice of such interactions when possible, and to recap the interview afterwards, is appropriate.

- From the 21st Century RTK Agenda

Ensure Disclosure of Past Intelligence Activities 

The president should direct each agency to compile its relevant records on the topics of domestic surveillance, rendition, detention, and interrogation and to provide unclassified reports to the president and to Congress concerning U.S. government actions in these areas.

The president has the authority to declassify and disclose any and all records that reflect the activities of executive branch agencies. Although some internal White House records of President Bush and his personal advisers will be exempt from disclosure for a dozen years, every Bush administration decision that translated into policy will have left a documentary trail in one or more of the agencies. Many of these records could be disclosed at the discretion of the president without any threat to national security.

- From the 21st Century RTK Agenda

Agency employees are responsible for the accuracy and integrity of their communications 

Agency policies should make clear that employees are responsible for the accuracy and integrity of their communications and should not represent the agency on issues of politics or policy without prior approval from the Public Affairs Officer. Employees are also responsible for working with public affairs to make significant research developments accessible and comprehensible to the public.

- From the 21st Century RTK Agenda

Scientific Review and Comment on Government Products 

Scientists and researchers also have the right to review, approve and comment publicly on the final version of any document or publication that significantly relies on their research, identifies them as an author or contributor, or purports to represent their scientific opinion or relates to their field of expertise. While editing by non-scientists is at times necessary and useful, final review by scientific experts is essential to ensure that accuracy has been maintained in the clearance process. In order to accomplish this and create broader public input on scientific materials, agencies should be required to make available for public review and comment all research and documents cited and/or used in a final decision or action.

- From the 21st Century RTK Agenda

Prohibit Secret Laws, Regulations, Processes 

The president should issue a policy directive prohibiting agencies from creating secret “laws” or regulations or from using secret processes to prevent public input in the development of government rules.

A secret law is a regulation, policy, or directive that, for one reason or another, has been kept secret from the persons to whom it applies. Secret law that is inaccessible to the public is inherently antithetical to democracy and foreign to the tradition of open publication that has characterized most of American legal history. Many consider such secret laws to be inherently illegal. Yet there has been a discernable increase in secret law and regulation in recent years. Among the examples of secret law are secret interpretations of the Foreign Intelligence Surveillance Act, secret opinions of the Office of Legal Counsel, secret presidential directives, and secret transportation security directives. While there are occasions when some presidential directives should legitimately be classified and therefore issued in secret, even these exceptions should only remain secret for a reasonable time period. The president should require all agencies to publicly disclose non-classified regulations and rules currently in place and commit to public process for all new regulations and directives. Additionally, all legal opinions from the Office of Legal Counsel should be made public.

- From the 21st Century RTK Agenda

Restore and Strengthen the President's Foreign Intelligence Advisory Board 

The President’s Foreign Intelligence Advisory Board (PFIAB) is unique among intelligence oversight entities in that it is composed of private citizens with a mandate to oversee intelligence agency compliance with the law. But in 2008, President Bush issued an executive order that diminished the Board’s authority and independence (and removed the word “Foreign” from its name).50 The Board’s authority should be restored. Equally important, its membership should be composed of individuals who are distinguished by their commitment to upholding the law, including civil liberties, and the integrity of government operations.

- From the 21st Century RTK Agenda

Scientific Freedom & Agency Media Policies 

Agency media policies should respect that scientists and researchers have a right to express their personal views. Scientists and researchers, like any federal employees, have a right to express their personal views outside of a few narrow restrictions. Provided that scientists make an explicit disclaimer that they are speaking as private citizens and are not seeking to represent official agency policy, they should be allowed to speak freely about their research and to offer their scientific opinions – even in situations where their research may be controversial or have implications for agency policy. Agency policies governing communication with the media should make this option clear and explicit to employees. Such a “personal views” disclaimer does not, of course, cover the release of information that would otherwise be illegal, such as classified or personal information. Additionally, agencies should be encouraged to create a mechanism to allow non-scientific employees to express their opinions on actions, research, or policy within their areas of experience.

- From the 21st Century RTK Agenda

Improve Oversight of Intelligence and National Security Activity 

The president should require agency heads to task agency inspectors general to perform regular audits of agency compliance with executive order requirements on classification and declassification. Thousands of executive branch personnel are authorized to create new classified information, but only a dozen or so individuals are authorized to perform independent oversight of such classification actions. Inspectors general, who are already in place at each agency, should be directed to perform periodic audits of classification and declassification activity to ensure that classification is properly applied and limited to the essential minimum.

The Government Accountability Office (GAO) should be enlisted to conduct regular intelligence oversight. GAO is among the most effective and skillful instruments of government oversight available. It performs audits and investigations of programs and activities throughout the government, with the exception of the U.S. intelligence community. The intelligence community has traditionally declined to participate in GAO inquiries that “evaluate intelligence activities, programs, capability, and operations,” according to the Director of National Intelligence, because to do so, the DNI says, could compromise intelligence sources and methods. That is a pretext, not a legitimate argument. The GAO has 1,000 employees with Top Secret clearances, including several dozen with Sensitive Compartmented Information (SCI) clearances for access to intelligence information. These employees oversee highly classified programs outside of the intelligence community. There has never been a compromise of classified information originating at GAO.

The president should actively cooperate with congressional oversight and recognize that oversight is a healthy component of American government. The executive branch should be responsive to requests for document production and make administration officials available to testify under oath before Congress. The president should order each agency to fully cooperate with any investigation or inquiry into the accountability of government activities related to national security and homeland security actions. This includes criminal investigation or prosecution, congressional investigation or inquiry, appointed commission inquiry, or executive branch investigation or audit. Agencies should be instructed to provide relevant records, making personnel available to testify under oath, and declassifying records and information so that an accounting may be provided to the public. Such investigations could cover domestic surveillance, rendition, detention, or interrogation. Further, the president should minimize the assertion of executive or other privileges and invoke them only when essential.

- From the 21st Century RTK Agenda

Authentication of government documents 

The CIO Council should study and make recommendations for authentication of government documents and information submitted to the government. To improve the usability of electronic government information, its authenticity must be assured. A CIO Council task force should develop standards for authenticating government documents for the public through an open process that includes review of past efforts. The task force should develop standards, best practices, and sample implementation plans for agencies to authenticate digital documents. The task force should tap government and private-sector experts for hard questions on topics such as granularity (how to authenticate small pieces of a document – e.g. one or two CFR sections, not an entire title). Best practices and implementation plans developed by the task force can help bring along other branches or levels of government, improving usability for citizens.

- From the 21st Century RTK Agenda

No Agency Business to be Conducted on Non-Agency Email 

Regulations should be promulgated to make it explicit that agency employees and officials – in compliance with the requirements of the Federal Records Act – may not conduct agency business through use of non-agency email or other messaging systems. As e-mail has become a dominant form of communication within government, the importance of maintaining an accurate record of those communications has grown as well. Recent instances at both the federal and state levels have demonstrated that in addition to better archiving of government e-mail records, a stronger policy is needed on use of non-governmental e-mail accounts. Policies should strongly reinforce the Federal Regulations Act’s restriction that communications on public/government matters should be conducted through official e-mail accounts.

However, given that the problem continues to arise despite the existing guidance, additional requirements should be established in the event that government matters are discussed through non-governmental or personal e-mail accounts. In such circumstances, officials should be required to preserve and make public these records, or at least the portion related to official business.

- From the 21st Century RTK Agenda