Sunshine Week: OPEN Government Data Act

Sunshine Week: OPEN Government Data Act

INSIGHTi
Sunshine Week: OPEN Government Data Act
March 19, 2021
Sunshine Week recognizes developments in transparency in government operations, as wel as the
records, data, and Freedom of Information Act (FOIA; 5 U.S.C. §552) professionals involved in
processing government information. Recognition of the people’s right to know what their government is
doing through access to government information can be traced back to the early days of the nation.
Multiple statutes have established processes through which the public may access government
information (e.g., FOIA, the Federal Records Act, and the Government in the Sunshine Act). The recently
enacted Open, Public, Electronic, and Necessary Government Data Act—also cal ed the OPEN
Government Data Act (Title II of the Foundations for Evidence-Based Policymaking Act of 2018; P.L.
115-435)—seeks to change how government information is formatted, catalogued, and presented for
public use and access. This Insight discusses transparency and access provisions of the OPEN
Government Data Act and selected issues for Congress.
Overview
The OPEN Government Data Act (hereinafter, the Act) added new definitions of terms in government
information policy and new duties for agencies and the Office of Management and Budget (OMB). Prior
to the Act’s passage, statute provided the OMB director the general authority to “oversee the use of
information resources to improve the efficiency and effectiveness of governmental operations to serve
agency missions, including burden reduction and service delivery to the public ” and “develop, coordinate
and oversee the implementation of Federal information resources management policies, principles,
standards, and guidelines.” The OMB director institutional y shares information resources management
with the General Services Administration (GSA), the National Archives and Records Administration
(NARA), and other agencies.
The Act made key changes that affect government information and transparency policy, which include:
 defining and adapting certain information policy terms to also contemplate a digital
environment,
 cal ing for government information to be made “open by default,” and
 requiring agencies to conduct a comprehensive data inventory and facilitating the
creation of a federal data catalogue.
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Adapting Terminology for a Digital Environment
In response to the proliferation of networked information technology, Congress continues to change
federal recordkeeping and data practices via statute. The Act builds on the Presidential and Federal
Records Act Amendments of 2014 (P.L. 113-187), which required records materials to be assessed by the
content of the information—rather than the media used to store it—by similarly requiring agencies to
adapt government information and data integration practices for a digital environment. The Act also
codified previous OMB guidance on terminology and efforts to make government information machine-
readable.
Table 1. Terms Defined by the OPEN Government Data Act
Term
OPEN Government Data Act Definition
Data
recorded information, regardless of form or the media on which the
data is recorded
Data Asset
a col ection of data elements or data sets that may be grouped together
Machine-Readable Data
data in a format that can be easily processed by a computer without
human intervention while ensuring no semantic meaning is lost
Public Data Asset
a data asset, or part thereof, maintained by the Federal Government
that has been, or may be, released to the public, including any data
asset, or part thereof, subject to disclosure under FOIA
Open Government Data Asset
a public data asset that is-
(A) machine-readable;
(B) available (or could be made available) in an open format;
(C) not encumbered by restrictions, other than intel ectual property
rights, including under titles 17 and 35, that would impede the use or
reuse of such asset; and
(D) based on an underlying open standard that is maintained by a
standards organization.
Source: Title 44, Section 3502, of the U.S. Code.
Guidance to Make Data “Open by Default”
The Act requires agencies to publicly disclose data assets if they would otherwise be made available
under FOIA and unless otherwise prohibited from disclosure for being personal y identifiable information
or subject to intel ectual property rights. The Act also requires agencies to ensure their public data assets
are released in machine-readable formats while permitting agencies to conduct a cost-benefit analysis on
whether there is sufficient public value in converting such information.
This portion of the act depends on an Administration’s interpretation of FOIA, and that interpretation has
changed over time. Previous Administrations have declared that such information should be disclosed
“rapidly in forms that the public can readily find and use.” In practice, critics have noted that such
disclosure stil faces legal and practical hurdles to convert analog or paper information into digital
formats.
In combination, a varying interpretation of what it means for information to “otherwise be made
available” under FOIA, as wel as uncertainty related to OMB’s cost-benefit analysis implementation
guidance for converting information, may cause the Act’s effects on transparency to vary over time.

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Comprehensive Data Inventory and the Federal Data Catalogue
The Act also requires each agency to establish a comprehensive data inventory (CDI) that “accounts for
al data assets created by, collected by, under the control or direction of, or maintained by the agency. ”
CDIs must describe, in part:
 the data asset and al variable names and definitions,
 whether the data asset can be considered open or is partial y or wholly exempt from
disclosure,
 method of public access, and
 the owner of the data set.
Public data assets are to be supplied, in real time, for inclusion in the federal data catalogue. While not
explicitly stated in the statute, it appears that Data.gov has become the home for the federal data
catalogue.
Issues for Congress
Under the Act, OMB is required to issue guidance on how to make data open and available and how
agencies are to construct their CDIs. The Government Accountability Office notes that OMB has not yet
done so. The Act’s implications would be influenced by OMB’s implementation guidance. Looking
ahead, Congress may consider several questions:
 Does OMB guidance acknowledge and incorporate GSA and NARA’s information
resources management responsibilities and expertise?
 How should agencies format information for public use?
 What are the roles for Congress and the public in determining whether the CDI properly
considers data sets to be available or exempt from disclosure?

Author Information

Meghan M. Stuessy

Analyst in Government Organization and Management

Disclaimer
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