The OPEN Government Data Act: A Primer

The OPEN Government Data Act: A Primer

December 29, 2022
The OPEN Government Data Act: A Primer
The Open, Public, Electronic, and Necessary Government
 calling for government information to be made “open by
Data Act—also called the OPEN Government Data Act
default,”
(Title II of the Foundations for Evidence-Based
Policymaking Act of 2018 [FEBPA], P.L. 115-435)—seeks
 requiring agencies to conduct comprehensive data
to change how government information is formatted,
inventories and facilitating the creation of a federal data
catalogued, and presented for public access and use. The
catalogue, and
law established agency roles and responsibilities for
implementing further information transparency and
 establishing agency-level chief data officer positions.
availability.
Adapting Terminology to a Digital
The act builds upon earlier executive branch guidance on
Environment
information management and digitization, including
In response to the proliferation of networked information
executive orders and publications from the Office of
technology, Congress continues to change federal
Management and Budget (OMB) and the National Archives
recordkeeping and information practices via statute. It
and Records Administration (NARA). This In Focus
introduced several key definitions (44 U.S.C. §3502; see
discusses access and transparency provisions of the OPEN
box). The act builds on the Presidential and Federal
Government Data Act and selected issues for Congress.
Records Act Amendments of 2014 (P.L. 113-187), which
require records materials to be assessed by the content of
Expanding OMB’s Information Roles
the information—rather than the media used to store it—by
The OPEN Government Data Act (hereinafter, the act)
similarly requiring agencies to adapt government
added new definitions of terms for government information
information and data integration practices for a digital
policy and new duties for agencies and OMB. The act
environment (S.Rept. 113-218). The act also codified
placed these definitions in Title 44 of the U.S. Code, which
portions of OMB Memorandum M-13-13 (2013) to be
discusses public printing, documents, and the Federal
compatible with FOIA and the Privacy Act.
Records Act (44 U.S.C. Chapters 21, 29, 31, and 33).
Further, the act’s provisions are located in Chapter 35 of
Definitions in the OPEN Government Data Act
Title 44, which focuses on OMB coordination of federal
Data: recorded information, regardless of form or the media on
information policy, as opposed to the broader
which the data is recorded
administrative procedure statutes of Title 5 of the U.S.
Data Asset: a col ection of data elements or data sets that may be
Code, where provisions associated with the Freedom of
grouped together
Information Act (FOIA) and Privacy Act of 1974 are
located. The act’s Title 44 location underscores the
Machine-Readable Data: data in a format that can be easily processed
increased role of OMB to guide information policy, while it
by a computer without human intervention while ensuring no
also tethers agency management of digital information to
semantic meaning is lost
the existing statutory framework for records management.
Public Data Asset: a data asset, or part thereof, maintained by the
Federal Government that has been, or may be, released to the
Prior to the act’s passage, Title 44, Section 3504 of the U.S.
public, including any data asset, or part thereof, subject to
Code gave general authority to the OMB director to
disclosure under FOIA
“oversee the use of information resources to improve the
Open Government Data Asset: a public data asset that is (A) machine-
efficiency and effectiveness of governmental operations to
readable; (B) available (or could be made available) in an open
serve agency missions, including burden reduction and
format; (C) not encumbered by restrictions, other than intellectual
service delivery to the public,” and to “develop, coordinate
property rights … that would impede the use or reuse of such
and oversee the implementation of Federal information
asset; and (D) based on an underlying open standard that is
resources management policies, principles, standards, and
maintained by a standards organization
guidelines.” The OMB director institutionally shares
Metadata: structural or descriptive information about data such as
information resources management policy roles with the
content, format, source, rights, accuracy, provenance, frequency,
General Services Administration (GSA), NARA, and
periodicity, granularity, publisher or responsible party, contact
certain other agencies (44 U.S.C. §3505).
information, method of col ection, and other descriptions
The act made changes that affect government information
and transparency policy, which include:
 defining and adapting certain information policy terms
to also contemplate a digital environment,
https://crsreports.congress.gov

The OPEN Government Data Act: A Primer
Responsibility to Make Data “Open by
information dissemination, and (4) records management
Default”
policy.
The act’s legislative history indicates a congressional intent
for agencies to make data “open by default”—that is,
Under the act, CDOs are also responsible for lifecycle data
publicly disclose data assets if they would otherwise be
management, which includes the creation or receipt,
made available under FOIA, except when prohibited from
maintenance and use, and disposition or destruction of the
disclosure for being personally identifiable information or
information (OMB Circular A-130; see CRS Report
subject to intellectual property rights (H.Rept. 115-411).
R47058, Access to Government Information: An Overview,
The act also requires agencies to ensure that their public
by Meghan M. Stuessy).
data assets are released in machine-readable formats while
permitting agencies to conduct cost-benefit analyses on
Consistent with earlier digitization efforts, CDOs are also to
whether there is sufficient public value in converting such
manage data assets in accordance with transparency
information (44 U.S.C. §3511(a)(2)(E)).
initiatives and privacy guidance (44 U.S.C. §3520(c)(3)).
As facilitators of data use within agencies, CDOs are also to
Implementation of this portion of the act depends in part on
engage agency employees and statistical officials, the
an Administration’s interpretation of FOIA, and that
public, and contractors in using public data assets and
interpretation has changed over time. Previous
support agency evaluation officers. CDOs are also to
Administrations have declared that such information should
submit annual agency reports to congressional committees
be disclosed “rapidly in forms that the public can readily
describing agency compliance and requirements that their
find and use” (74 Federal Register 4685). In practice,
agencies could not carry out.
critics have noted that such disclosure still faces legal and
practical hurdles to convert analog or paper information
Given the recent establishment of CDOs, their ability to
into digital formats (OMB Memorandum M-19-21).
collaborate among agency, public, and nonfederal entities is
likely to evolve. The act does not specify the reporting
In combination, a varying interpretation of what it means
relationship between agency Chief Information Officers
for information to “otherwise be made available” under
(CIOs) and CDOs, which may support rapidly evolving
FOIA, as well as uncertainty related to OMB’s guidance for
duties. The role of CDOs is still developing in the absence
cost-benefit analysis of converting information, may cause
of OPEN Government Data Act guidance from OMB (see
the act’s effects on transparency to vary over time.
Government Accountability Office [GAO] reports GAO-
21-29 and GAO-23-105514). OMB has broadly discussed
Comprehensive Data Inventories and the the supporting role of CDOs in guidance for other portions
Federal Data Catalogue
of FEBPA (OMB Memorandum M-19-23).
The act also requires each agency to establish a
comprehensive data inventory (CDI) that “accounts for all
The statute suggests that CDOs will have contributing roles
data assets created by, collected by, under the control or
in information management, including but not limited to:
direction of, or maintained by the agency” (44 U.S.C.
§3511). Each CDI must describe, in part:
 dissemination and protection of data assets;



collection and use of information within government
each data asset and all variable names and definitions,
and across sectoral boundaries; and
 whether a data asset can be considered open or is
 facilitation of information use for day-to-day program
partially or wholly exempt from disclosure,
management, statistical activities, and evidence-building
activities.
 related methods of public access, and
Issues for Congress
 the owner of each data asset.
Under the act, OMB is required to issue guidance on how to
make data open and available and how agencies are to
Agencies are to supply public data assets for inclusion in
construct their CDIs. GAO has noted that OMB has not yet
the federal data catalogue and update them in real time.
done so (GAO-21-29). Looking ahead, Congress may
While it is not explicitly stated in statute, it appears that
consider many questions, including:
Data.gov has become the home for the federal data
catalogue.
 Does OMB guidance acknowledge and incorporate
GSA’s and NARA’s information resources management
Agency Chief Data Officers
responsibilities and expertise? How should agencies
With a statutory grounding in records management policy
format information for public use?
while working toward increasing agency digitization and

use of data, the act also established the role of agency chief
What are the roles for Congress and the public in
data officers (CDOs). Broadly, CDOs are to build agency
determining whether agencies appropriately consider
capacity for information stewardship and use. As described
data assets available or exempt from disclosure?
in Title 44, Section 3520(c), of the U.S. Code, CDOs are to
 How will CIO and CDO duties evolve?
carry out agency requirements related to, among other
things, (1) general information resources management, (2)
Meghan M. Stuessy, Analyst in Government Organization
collection of information and control of paperwork, (3)
and Management
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The OPEN Government Data Act: A Primer

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