The Obama Administration's Open Government Initiative: Issues for Congress

The Obama Administration’s Open
Government Initiative: Issues for Congress
Wendy R. Ginsberg
Analyst in Government Organization and Management
January 28, 2011
Congressional Research Service
7-5700
www.crs.gov
R41361
CRS Report for Congress
P
repared for Members and Committees of Congress

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The Obama Administration’s Open Government Initiative: Issues for Congress

Summary
The 112th Congress may have interest in accessing information and documents from the executive
branch. This report examines and analyzes the Obama Administration’s initiative to make the
executive branch more transparent, participatory, and collaborative. On his first full day in office
(January 21, 2009), President Barack Obama issued two memoranda “for the Heads of Executive
Departments and Agencies” that were related to transparency in government. One memorandum
focused on the administration of the Freedom of Information Act (FOIA), and the other focused
on transparency and open government. The transparency memorandum committed the
administration to “an unprecedented level of openness” and to the establishment of “a system of
transparency, public participation, and collaboration.” Some scholars argue that these memoranda
were a significant break from the policies of the previous administration.
Over the next few months, the Office of Management and Budget (OMB)—a component of the
Executive Office of the President—administered a series of online public feedback forums as part
of a comprehensive Open Government Initiative (OGI). Through the forums, OMB sought input
from federal employees and the public on ways to improve government transparency, increase
public participation with the federal government, and encourage collaboration among federal
government agencies, private citizens, and other entities.
On December 8, 2009, the Obama Administration released a third memorandum, an Open
Government Directive (OGD), that included more detailed instructions for departments and
agencies on how they are to “implement the principles of transparency, participation, and
collaboration.” Among other policy initiatives, the memorandum required all federal agencies to
release three “high-value” datasets that were previously unpublished. In addition, the
memorandum required each agency to designate a “high-level senior official to be accountable for
the quality and objectivity of, and internal controls over, the Federal spending information” that
agencies currently provide to government websites like USAspending.gov and Recovery.gov.
Each agency was also required to create an “open government plan … that will describe how it
will improve transparency and integrate public participation and collaboration into its activities.”
The presidential memorandum included a series of staggered deadlines for implementing each
part of the directive.
Both the Administration and private organizations have examined federal agency efforts to meet
the OGD’s requirements. These examinations have found that agencies met the requirements, but
with varying results. Some agencies completed the OGD requirements by setting up required
websites, but providing limited information or public participation. Other agencies explored
methods of integrating their newly released datasets into their open government websites and
providing forums for the public to offer thoughts on ways to improve the sites further.
The 112th Congress may oversee the Administration’s open government efforts and has the
authority to codify any parts of the initiative. This report reviews and discusses the centerpieces
of President Obama’s transparency initiatives, the Open Government Initiative and the Open
Government Directive. The report analyzes agency response to the OGI and the OGD and
examines whether the OGD’s requirements can meet the stated goals of the Administration. The
report discusses the three central tenets of the Administration’s OGD—transparency, public
participation, and collaboration—and analyzes each one individually to determine whether
agencies are meeting these requirements and whether the requirements may improve the
effectiveness of the federal government.
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The Obama Administration’s Open Government Initiative: Issues for Congress

Contents
Introduction ................................................................................................................................ 1
The Three Memoranda ................................................................................................................ 2
Government Transparency........................................................................................................... 3
The Constitution and Transparency ....................................................................................... 4
The Freedom of Information Act ........................................................................................... 5
Significant Events May Affect Transparency Policies ............................................................ 6
The Obama Administration ......................................................................................................... 7
The January 2009 Memoranda .............................................................................................. 7
Starting the Open Government Initiative ............................................................................. 10
Open Government Directive...................................................................................................... 12
Administration Leadership on the OGD .............................................................................. 12
Publish Government Information Online ............................................................................. 14
Datasets ........................................................................................................................ 14
Web Page...................................................................................................................... 15
FOIA in the Open Government Directive ...................................................................... 17
Improve the Quality of Government Information................................................................. 17
Quality Information Framework.................................................................................... 18
Federal Spending Transparency..................................................................................... 18
Create and Institutionalize a Culture of Open Government .................................................. 19
The Open Government Dashboard ................................................................................ 20
Open Government Plan ................................................................................................. 20
Transparency Working Group........................................................................................ 23
Incentive Structures....................................................................................................... 24
Create an Enabling Policy Framework for Open Government .............................................. 25
Review of Existing Guidance ........................................................................................ 25
After the Open Government Directive ....................................................................................... 26
Analysis.................................................................................................................................... 27
Transparency ...................................................................................................................... 28
Public Participation............................................................................................................. 30
Collaboration ...................................................................................................................... 31

Tables
Table 1. Requirements for Agencies to Publish Government Information Online ....................... 17
Table 2. Requirements for the Individual Agencies and Deputy Director for Management
at OMB to Improve the Quality of Government Information .................................................. 19
Table 3. Requirements for Agencies and Government Officials to Create and
Institutionalize a Culture of Open Government ....................................................................... 24
Table 4. Requirements for the OIRA Administrator, and the Federal CIO and CTO to
Review Existing Guidance ..................................................................................................... 26

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The Obama Administration’s Open Government Initiative: Issues for Congress

Contacts
Author Contact Information ...................................................................................................... 32

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The Obama Administration’s Open Government Initiative: Issues for Congress

Introduction
Many Presidents have adopted policies to address the tension between government transparency
and protection of sensitive information. Sometimes these policies are more restrictive and
protective of institutional, commercial, and individual privacy as well as security concerns. Other
times, however, policies have encouraged a presumption of disclosure of information.1 An
Administration can issue its information policies in a variety of ways. For example, some
Presidents issue their transparency policies through the Department of Justice (DOJ), as was done
during the presidency of George W. Bush.2 In contrast, President Barack Obama issued three
memoranda related to federal transparency from the Executive Office of the President during his
first year in office. In addition, the Office of Management and Budget (OMB), under the direction
of the Obama Administration, underwent three phases of public information collection that
presumably helped shape the Administration’s transparency initiatives.
On his first full day in office (January 21, 2009), President Barack Obama issued two memoranda
“for the Heads of Executive Departments and Agencies” that were related to transparency in
government.3 One memorandum focused on the administration of the Freedom of Information
Act (FOIA), and the other focused on transparency and open government. On December 6, 2009,
OMB issued a third memorandum seeking to operationalize the concepts of transparency, public
participation, and collaboration.4
Although each executive-branch agency met the deadlines set out in the December 6, 2009,
memorandum, the Administration and some observers outside of government noted that the
agency responses varied in quality. This report reviews the objectives delineated in President
Obama’s Open Government Initiative (OGI) and examines the expectations placed on agencies to
meet these objectives. This report reviews department and agency attempts to implement Obama
Administration initiatives that seek to make the federal government more transparent,
participatory, and collaborative. The report then analyzes options for congressional action in this
area.

1 The Administration of former President George W. Bush, for example, adopted a policy of “full and deliberate
consideration” of any requests for federal government information made by the public. See Memorandum from John
Ashcroft, Attorney General, to Heads of All Federal Departments and Agencies, October 12, 2001, http://www.doi.gov/
foia/foia.pdf. The Administration of President Barack Obama, on the other hand, has stated its intention to adopt a
policy of presumptive disclosure that will be described in greater detail later in this report. See Memorandum from
President Barack Obama For Heads of Executive Departments and Agencies, January 21, 2009,
http://www.whitehouse.gov/the_press_office/FreedomofInformationAct/.
2 John Ashcroft, Attorney General, Memorandum to the Heads of Federal Departments and Agencies: The Freedom of
Information Act, Department of Justice, Washington, DC, October 12, 2001, http://www.doi.gov/foia/foia.pdf.
3 Executive Office of the President, “Freedom of Information Act,” 74 Federal Register 4693, January 26, 2009. The
memorandum was released on January 21, 2009, http://www.whitehouse.gov/the_press_office/
FreedomofInformationAct/. Executive Office of the President, “Transparency and Open Government,” 74 Federal
Register 4685, January 26, 2009. The memorandum was released on January 21, 2009, http://www.whitehouse.gov/
the_press_office/Transparency_and_Open_Government/; and Executive Office of the President, “Transparency and
Open Government,” 74 Federal Register 4685, January 26, 2009. The memorandum was released on January 21, 2009,
http://www.whitehouse.gov/the_press_office/Transparency_and_Open_Government/.
4 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009,
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
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The Three Memoranda
Since entering office, President Obama and his Administration have issued three memoranda
directly related to transparency and open government issues. Two of those memoranda were
released on the President’s first full day in office. The third memorandum, which requires
agencies to implement certain open government ideas, was issued in December 2009.
One of the two January 21, 2009, memoranda, the “Transparency and Open Government”
memorandum, said that the new Administration was “committed to creating an unprecedented
level of openness in government.”5 The memorandum focused on fostering a more open
government based on three principles: transparency, public participation, and collaboration.
The memorandum required the chief technology officer and the director of OMB to issue, within
120 days, recommendations for the Open Government Directive “that instructs executive
departments and agencies to take specific actions implementing the principles set forth in this
memorandum.”6
The second January 21, 2009, memorandum, the “Freedom of Information Act” memorandum,
said that FOIA “should be administered with a clear presumption: In the face of doubt, openness
prevails.”7 The memorandum said that under the new administration “ [a]ll agencies should adopt
a presumption in favor of disclosure, in order to renew their commitment to the principles
embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure
should be applied to all decisions involving FOIA.”8
The memorandum then directed the attorney general to “issue new guidelines governing the
FOIA to the heads of executive departments and agencies, reaffirming the commitment to
accountability and transparency, and to publish such guidelines in the Federal Register.”9
In addition to the two memoranda, the Administration conducted a series of online public input
forums between January and July 2009, seeking feedback and ideas from federal employees, the
public, and industry representatives on ways to make the federal government more transparent,
collaborative, and participatory.
On December 8, 2009, Peter R. Orszag, the director of OMB, released a third open-government-
related memorandum, the “Open Government Directive” memorandum, that included more
detailed instructions for departments and agencies on how to “implement the principles of
transparency, participation, and collaboration.”10 Among the initiatives in the memorandum was a

5 Executive Office of the President, “Transparency and Open Government,” 74 Federal Register 4685, January 26,
2009. The memorandum was released on January 21, 2009, http://www.whitehouse.gov/the_press_office/
Transparency_and_Open_Government/.
6 Ibid.
7 Executive Office of the President, “Freedom of Information Act,” 74 Federal Register 4693, January 26, 2009. The
memorandum was released on January 21, 2009, http://www.whitehouse.gov/the_press_office/
FreedomofInformationAct/.
8 Ibid.
9 Ibid. The memorandum did not include a deadline by which such guidelines must be published.
10 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009,
(continued...)
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requirement to give the public access to “high-value” datasets that were previously unpublished.
In addition, the memorandum required each agency to designate a “high-level senior official to be
accountable for the quality and objectivity of, and internal controls over, the Federal spending
information” that agencies currently provide to government websites like USAspending.gov and
Recovery.gov. 11 Each agency was also required to create an “open government plan … that will
describe how it will improve transparency and integrate public participation and collaboration
into its activities.”12 The memorandum set a series of staggered deadlines for each department and
agency to comply with the new requirements.
This report examines the Obama Administration’s Open Government Initiative. It reviews the
Administration’s requirements for each executive-branch department and agency, and it examines
department and agency results in increasing transparency, public participation, and collaboration.
This report also analyzes options for congressional oversight and possible legislative and
oversight actions in these areas.
Government Transparency
The tension between a transparent government and the maintenance of proper levels of secrecy
has existed throughout the nation’s history. Sometimes Congress or the President may choose to
keep information secret, arguing that it serves to protect national security or an individual’s
privacy. Other times the federal government may make information public in an attempt to
increase public trust in the deliberative democratic process. Scholars Sidney A. Shapiro and Rena
I. Steinzor wrote in a 2006 article on executive branch secrecy and accountability that
[c]laims that the executive branch needs extensive secrecy to operate effectively are
troublesome because of the important role transparency plays in the American constitutional
system of checks and balances. When secrecy becomes sufficiently pervasive, it becomes
difficult, even impossible, for Congress and the public to determine what is going on in the
executive branch. Government failures are hidden and the public interest suffers. Indeed, it is
not an exaggeration to say that pervasive secrecy can fatally undermine the structure of our
constitutional government by allowing the executive branch to withhold crucial information
from the other two branches and, as important, a free press.
Nevertheless, absolute transparency is neither a realistic nor an appropriate goal. The release
of some types of information can do more harm than good. … The difficult public policy
issue, of course, is striking an appropriate balance between openness and secrecy.13
This section offers a brief overview of some critical documents and events that shaped
government transparency and information secrecy in the U.S. federal government.

(...continued)
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf. It is unclear how much influence the online
forums influenced the December 8, 2009, memorandum.
11 Ibid., p. 3.
12 Ibid., p. 4.
13 Sydney A. Shapiro and Rena I. Steinzor, “The People’s Agent: Executive Branch Secrecy and Accountability in an
Age of Terrorism,” Law and Contemporary Problems, vol. 69, no. 99 (Summer 2006).
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The Constitution and Transparency
The United States Constitution contains some of the same conflicts between transparency and
secrecy that continue to inspire debates in all three co-equal branches of the federal government.
In Article I, Section 5, for example, the Constitution states that
Each House shall keep a Journal of its Proceedings, and from time to time publish the same,
excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the
Members of either House on any question shall, at the Desire of one fifth of those Present, be
entered on the Journal.
Pursuant to the Constitution, therefore, Congress is required to keep a publicly accessible record
of its actions, but is also given the authority to keep certain topics secret. The Constitution makes
no specific reference to what subject matter could be kept secret by Congress, and leaves that
question to be answered by each chamber individually.
The only explicit reference to the executive branch’s responsibilities to share government
information is in Article II, Section 3, of the Constitution, which requires the President “from
time to time” to “give to the Congress Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge necessary and expedient.” In modern times,
this constitutional requirement has been filled by the annual State of the Union Address presented
to a joint session of Congress.14
In addition to explicit constitutional requirements, implicit responsibilities and powers may be
found in the Constitution. Oversight, for example, is an implicit constitutional power and
obligation of the Congress.15 According to historian Arthur Schlesinger, Jr., “it was not considered
necessary to make an explicit grant of such [oversight] authority,” wrote Schlesinger. “The power
to make laws implied the power to see whether they were faithfully executed.”16 The Constitution
also granted Congress an array of formal powers—the purse strings, lawmaking, impeachment,
among others—to hold the president and the administration accountable for their actions or
inactions. In short, oversight plays a key role in our system of checks and balances.
Among the various methods Congress may use to conduct its oversight duties is creating and
enforcing agency reporting requirements. Numerous laws require executive agencies to submit
reports periodically, and as required by specific events or certain conditions, to Congress and its
committees. As one scholar explained:
Reporting requirements are provisions in laws requiring the executive branch to submit
specified information to Congress or committees of Congress. Their basic purpose is to
provide data and analysis Congress needs to oversee the implementation of legislation and
foreign policy by the executive branch.17

14 For more information about the State of the Union Address, see CRS Report R40132, The President’s State of the
Union Address: Tradition, Function, and Policy Implications, by Colleen J. Shogan and Thomas H. Neale.
15 For more information on congressional oversight see CRS Report R41079, Congressional Oversight: An Overview,
by Walter J. Oleszek.
16 Arthur M. Schlesinger, Jr. and Roger Burns, eds., Congress Investigates: A Documented History, 1792-1974, vol. 1
(New York: Chelsea House, 1975), p. xix.
17 Ellen C. Collier, “Foreign Policy by Reporting Requirement,” Washington Quarterly, Winter 1988, p. 75.
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Generally, reporting requirements encourage self-evaluation by the executive branch and promote
agency accountability to Congress. Reporting requirements involve weighing Congress’s need for
information and analysis to conduct evaluations of agencies and programs against the imposition
of burdensome or unnecessary obligations on executive-branch entities.
The executive branch has explicit statutory authorities and may claim additional implied powers
to withhold certain documents or information from release. Most records of recent former
Presidents and former Vice Presidents, for example, are required by statute to be turned over to
the National Archives and Records Administration at the end of each administration, pursuant to
the Presidential Records Act.18 A series of executive orders,19 however, have modified how much
time a former or incumbent president or vice president has to decide whether to block certain
presidential records from release. The Constitution makes no explicit reference to retaining
presidential records, nor does the Constitution explicitly authorize presidents to issue executive
orders. Both of these actions stem from implied presidential powers in the Constitution.
The Freedom of Information Act
It was not until the 1966 enactment of the Freedom of Information Act (FOIA; 5 U.S.C. § 552)
that individuals, corporations, and other entities were given “presumptive access to unpublished,
existing and identifiable records of the agencies of the Federal executive branch without having to
demonstrate a need or reason for such request.”20
Although the original FOIA and its subsequent amendments make executive-branch documents
more accessible to the public, the act includes nine exemptions that permit agencies to decline
requests for information:
1. Information properly classified for national defense or foreign policy purposes as
secret under criteria established by an executive order;
2. Information relating solely to agency internal personnel rules and practices;
3. Data specifically excepted from disclosure by a statute which either requires that
matters be withheld in a non-discretionary manner or which establishes particular
criteria for withholding or refers to particular types of matters to be withheld;
4. Trade secrets and commercial or financial information obtained from a person that is
privileged or confidential;
5. Inter- or intra-agency memoranda or letters that would not be available by law except
to an agency in litigation;

18 For more information on the Presidential Records Act and the preservation of presidential records, see CRS Report
R40238, Presidential Records: Issues for the 111th Congress, by Wendy R. Ginsberg.
19 For more information on executive orders, see CRS Report RS20846, Executive Orders: Issuance and Revocation,
by Vanessa K. Burrows.
20 Harold C. Relyea, “Federal Freedom of Information Policy: Highlights of Recent Developments,” in Government
Information Quarterly, vol. 26 (2009), p. 314. For more information on FOIA, see CRS Report R40766, Freedom of
Information Act (FOIA): Issues for the 111th Congress, by Wendy R. Ginsberg.
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6. Personnel, medical, or similar files the disclosure of which would constitute an
unwarranted invasion of personal privacy;
7. Certain kinds of investigatory records compiled for law enforcement purposes;
8. Certain information relating to the regulation of financial institutions; and
9. Geological and geophysical information and data. (5 U.S.C. § 552(b)).
If a requester seeks information in one of the preceding nine categories, he or she is to be notified
that the request may not be filled. The agency is required to cite the exemption it is using to
refuse the information request.
A requester who is dissatisfied with an agency response to his or her request may pursue a
remedy in the courts or seek arbitration at the Office of Government Information Services, which
is located in the National Archives and Records Administration.21
Significant Events May Affect Transparency Policies
Attitudes toward transparency can change over time, often affected by the political climate of the
country or by significant events that may change opinions on what and how much information
should be publicly available.
For example, terrorist attacks on the World Trade Center in New York City and the Pentagon in
Washington, DC, on September 11, 2001, prompted the George W. Bush Administration to adopt
new policies on accessing federal government information.
One month after the September 11 attacks, for example, then-Attorney General John Ashcroft
issued a memorandum redefining how FOIA was to be applied, saying agency and department
heads should release documents “only after full and deliberate consideration of the institutional,
commercial, and personal privacy interests that could be implicated by disclosure of the
information.”22 The memorandum continued:
When you carefully consider FOIA requests and decide to withhold records, in whole or in
part, you can be assured that the Department of Justice will defend your decisions unless
they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability
of other agencies to protect other important records.23
Another significant event that may affect federal transparency was the November 2010 public
release of classified Department of State documents on Wikileaks.org. The published information
included a small portion of more than 250,000 classified diplomatic cables the website claims to
have.24 Some diplomats may now fear the information they write in such cables could be released

21 The National Archives, “The Office of Government Information Services,” http://www.archives.gov/ogis/.
22 Attorney General John Ashcroft, Memorandum For the Heads of All Federal Departments and Agencies,
Department of Justice, The Freedom of Information Act, Washington, DC, October 12, 2001, http://www.doi.gov/foia/
foia.pdf.
23 Ibid.
24 For example, see Karen DeYoung and John Pomfret, “U.S. Downplays Impact of Leaks,” Washington Post,
November 30, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112906061.html;
(continued...)
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to the public, and may, therefore, be “more cautious” about their contents.25 Secretary of State
Hillary R. Clinton called the Wikileaks.org release “not just an attack on America’s foreign policy
interests. It is an attack on the international community—the alliances and partnerships, the
conversations and negotiations, that safeguard global security and advance economic
prosperity.”26 Secretary of Defense Robert M. Gates, however, reportedly said that the leak would
not greatly affect American diplomacy. At a November 30, 2010, press conference, Mr. Gates
reportedly said the following:
Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown,
as a game-changer, and so on. I think those descriptions are fairly significantly overwrought.
The fact is, governments deal with the United States because it’s in their interest, not because
they like us, not because they trust us, and not because they believe we can keep secrets.
Many governments—some governments deal with us because they fear us, some because
they respect us, most because they need us. We are still essentially, as has been said before,
the indispensable nation. 27
The Wikileaks.org release has prompted debates about limiting access to government information.
It has also highlighted concerns about information security within the U.S. government as well as
control of government information in a global, online context.
Because the transparency policies of each Administration frequently are not codified, they can be
modified at any time. Each President has the opportunity to determine how to apply and
administer existing transparency statutes, as is evidenced by the changes adopted the Obama
Administration, which will be described in the next section of this report.
The Obama Administration
The January 2009 Memoranda
As noted earlier in this report, on his first full day in office, President Barack Obama issued two
memoranda for the heads of executive departments and agencies:
• The “Freedom of Information Act” memorandum28; and
• The “Transparency and Open Government” memorandum.29

(...continued)
Scott Shane and Andrew W. Lehren, “Leaked Cables Offer Raw Look at U.S. Diplomacy,” New York Times,
November 28, 2010, http://www.nytimes.com/2010/11/29/world/29cables.html; and Michele Keleman, “Ex-Diplomats
Fear Leak Will Lead To Cautious Cables,” National Public Radio: Morning Edition, November 30, 2010,
http://www.npr.org/2010/11/30/131686336/ex-diplomats-fear-leak-will-lead-to-cautious-cables.
25 Ibid.
26 Hillary Rodham Clinton, Remarks to the Press on the Release of Confidential Documents, Department of State,
Washington, DC, November 29, 2010, http://www.state.gov/secretary/rm/2010/11/152078.htm.
27 See, for example, Mark Memmott, “WikiLeaks’ Impact On Foreign Policy ‘Fairly Modest,’ Gates Says,” National
Public Radio, November 30, 2010, http://www.npr.org/blogs/thetwo-way/2010/11/30/131700348/wikileaks-impact-on-
foreign-policy-fairly-modest-gates-says.
28 Executive Office of the President, “Freedom of Information Act,” 74 Federal Register 4693, January 26, 2009. The
memorandum was released on January 21, 2009, http://www.whitehouse.gov/the_press_office/
FreedomofInformationAct/.
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FOIA
The memorandum that addressed FOIA, required, among other things, the executive branch to
adopt “a presumption in favor of disclosure” of federal records.30 The memorandum directed the
attorney general to “issue new guidelines governing the FOIA to the heads of executive
departments and agencies, reaffirming the commitment to accountability and transparency, and to
publish such guidelines in the Federal Register.”31
On March 19, 2009, Attorney General Eric Holder issued a memorandum in which he required
“A Presumption of Openness” in relation to federal records and the application of FOIA.32 The
memorandum explicitly rescinded former Attorney General John Ashcroft’s October 12, 2001,
memorandum. Mr. Holder’s memorandum read as follows:
First, an agency should not withhold information simply because it may do so legally.… An
agency should not withhold records merely because it can demonstrate, as a technical matter,
that the records fall within the scope of a FOIA exemption.
Second, whenever an agency determines that it cannot make full disclosure of a requested
record, it must consider whether it can make partial disclosure. Agencies should always be
mindful that the FOIA requires them to take reasonable steps to segregate and release
nonexempt information. Even if some parts of a record must be withheld, other parts either
may not be covered by a statutory exemption, or may be covered only in a technical sense
unrelated to the actual impact of disclosure.
At the same time, the disclosure obligation under the FOIA is not absolute.…
[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency
reasonably foresees that disclosure would harm an interest protected by one of the statutory
exemptions, or (2) disclosure is prohibited by law.33
Transparency and Open Government
The other January 21, 2010, memorandum on “Transparency and Open Government,” said that
the new administration “is committed to creating and unprecedented level of openness in
Government.”34 It stressed three principles that the administration believed would strengthen the

(...continued)
29 The White House, Memorandum for the Heads of Executive Departments and Agencies: Transparency and Open
Government, Office of the Press Secretary, Washington, DC, January 21, 2009, http://www.gwu.edu/~nsarchiv/news/
20090121/2009_transparency_memo.pdf.
30 President Barack Obama, Freedom of Information Act: Memorandum for the Heads of Executive Departments and
Agencies, The White House, Washington, DC, January 21, 2009, http://www.whitehouse.gov/the_press_office/
FreedomofInformationAct/. For more information on this memorandum, see CRS Report R40766, Freedom of
Information Act (FOIA): Issues for the 111th Congress, by Wendy R. Ginsberg.
31 Ibid. The memorandum did not include a deadline by which such guidelines must be published.
32 Attorney General Eric Holder, Memorandum For the Heads of Executive Departments and Agencies, U.S.
Department of Justice, Washington, DC, March 19, 2009, pp. 1-2, http://www.usdoj.gov/ag/foia-memo-march2009.pdf.
33 Ibid.
34 The White House, Memorandum for the Heads of Executive Departments and Agencies: Transparency and Open
Government, Office of the Press Secretary, Washington, DC, January 21, 2009, http://www.gwu.edu/~nsarchiv/news/
20090121/2009_transparency_memo.pdf.
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country’s democracy and “promote efficiency and effectiveness in Government:” transparency,
public participation, and collaboration.
• Transparency—The memorandum said that “[t]ransparency promotes
accountability and provides information for citizens about what their
Government is doing,”35 adding that the administration “will take appropriate
action, consistent with law and policy, to disclose information rapidly in forms
that the public can readily find and use.”36 Agencies were instructed to find ways
to use new technologies to make public available information on agency
operations and decisions. Agencies were also directed to “solicit public feedback
to identify information of greatest use to the public.”37
• Public Participation—The memorandum said that public engagement in
government can improve “the quality of its decisions,” and public participation
allows government to access knowledge that is “widely dispersed in society.” 38
Departments and agencies were directed to increase opportunities for public
participation in government, and to “solicit public input” on ways to increase
civic engagement in the deliberative process.39
• Collaboration—The memorandum defined collaboration as actively engaging
“Americans in the work of their Government.”40 Agencies were encouraged to
“use innovative tools, methods, and systems to cooperate among themselves,
across all levels of Government, and with nonprofit organizations, businesses,
and individuals in the private sector.”41 The administration directed agencies to
find new ways to get the public and private organizations involved in
collaborative and cooperative government efforts.
Pursuant to the transparency and open government memorandum, within 120 days of the
memorandum’s release, the new federal chief technology officer (CTO), the director of OMB,
and the administrator of General Services were to coordinate and draft recommendations for an
Open Government Directive (OGD). The directive was to prescribe methods to implement the
three principles outlined in the memorandum. Some newspapers and open government advocates
argued that the Obama memorandum on transparency and participation marked a significant
break with the policies of the previous administration, whereas others stated the initiative would
not effect great changes.42

35 Ibid., p. 1.
36 Ibid.
37 Ibid.
38 Ibid.
39 Ibid.
40 Ibid.
41 Ibid., p. 2.
42 For example, the Sunshine in Government Initiative said the memorandum demonstrated that transparency was a
“wonderful” priority for the Obama Administration. “The Sunshine in Government Initiative,” January 21, 2009, press
release, at http://www.sunshineingovernment.org/index.php?cat=31. A Washington Post article reported that the
Obama Administration faced more lawsuits seeking the release of federal records in its first year than President George
W. Bush did in each of his last two years in office. Carol D. Leonnig, “More than 300 Public Records Lawsuits Filed in
Obama’s First Year,” Washington Post, January 27, 2010, http://www.washingtonpost.com/wp-dyn/content/article/
2010/01/26/AR2010012602048.html.
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Starting the Open Government Initiative
In the months following the transparency and open government memorandum’s release, the
Obama Administration sought to solicit information and ideas from the public on how to make
the federal government more transparent. In May, the Administration announced a three-phase
Open Government Initiative (OGI) aimed at collecting ideas from the public on how to make
government more transparent, participatory, and collaborative. From May 21 through June 3,
2009, the Obama Administration’s Office of Science & Technology Policy (OSTP) entered the
first phase of the directive by tapping the National Academy of Public Administration (NAPA) to
host an online “brainstorming session.”43 The goal of the session was to collect public comments
on “innovative approaches to policy, specific project suggestions, government-wide or agency-
specific instructions, and any relevant examples and stories relating to law, policy, technology,
culture, or practice.”44
The brainstorming session garnered 4,205 suggestions and comments—with varying levels of
utility and applicability.45 Suggestions and comments were rated using a scale in which each entry
could be given a “thumbs up” or “thumbs down” rating by all public users. The rating system
permitted users to place a numeric value on suggestions by allocating a +1 for each thumbs up
rating that a entry garnered and a -1 for each thumbs down rating. One entry suggested that
agencies should be required to post documents online once they have been released in relation to
a FOIA request. The suggestion stated that such action could reduce the number of duplicative
FOIA requests. In a different example, it was suggested that the United States create “peace-
officer ninjas.” The “peace-officer ninjas” suggestion, for example, generated a rating of -19;
posting FOIA documents online generated a score of 288. The rating system allowed OSTP
officials to quickly separate the suggestions that receive higher ratings from lower ratings,
creating a more efficient method of sorting through the suggestions.
From June 3 through June 26, 2009, OSTP began the second phase of its Open Government
Initiative, which focused on some of the ideas that emerged from the brainstorming session
forums. On June 10, 2009, Michael Fitzpatrick, associate administrator for the Office of
Information and Regulatory Affairs (OIRA), posted some findings from the Phase I brainstorming
session on OSTP’s blog, and listed four “notable comments” that emerged from the exercise. The
four recommendations said that the federal government should
• seek public input on data to be made transparent;
• identify candidate agencies or programs as pilots for transparency initiatives;
• post frequently requested categories of government information; and

43 National Academy of Public Administration (NAPA), Open Government Dialogue, May 21, 2009,
http://opengov.ideascale.com/akira/panel.do?id=4049. When the dialogue began, users could offer ideas without
signing up for a log-on identity. On May 23, 2009, NAPA changed that policy and required all participants to log into
the website before their comments could be posted.
44 Ibid.
45 Of the 4,205 comments, 1,614 were related to transparency issues, 722 were related to public participation, 294 were
related to collaboration, 285 were classified as related to “capacity building,” 635 were classified as related to legal or
policy changes, and 655 were uncategorized.
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• inventory and prioritize agency data for publication in open, downloadable
formats.46
The blog then stated that OIRA, the office that Congress charged with overseeing the
implementation of information resource management policies,47 was seeking additional public
feedback on ways to improve FOIA and OMB’s Circular A-130.48 Specifically, the blog asked for
information on the “critical gaps or holes in Circular A-130 that “need to be addressed,” for
“recommendations … for agencies to pro-actively post information on their websites to avoid a
FOIA request from even occurring,” and for “recommendations to make FOIA reading rooms
more useful and information more easily searchable, as they are meant to be a mechanism for
information dissemination to the public.”49
The blog generated 58 responses, once again of varying utility. One contributor suggested that
contractors performing federal duties should be required to maintain records the same way federal
agencies do. Other suggestions reiterated that documents released as part of a FOIA request be
published online, but added that they should be made text searchable.50 Again, users could rate
the suggestions, allowing the federal government and the public to see which suggestions were
preferred by users.
From June 22 through July 6, 2009, OSTP conducted the third phase of the open government
initiative: drafting policies. Using an online program, members of the public created documents
that were specific policy recommendations. Participants critiqued, endorsed, and rated the policy
recommendations.51 OSTP said that the “recommendations will inform the drafting of an ‘Open
Government Directive’ to executive branch agencies.”52 Among the policy recommendations
posted was a suggestion to “rebuild technical capacity for information dissemination in the
agencies (and government-wide)” so historical agency information can be stored electronically
and be accessed more efficiently when it is requested by the public.53 Another participant
suggested creating a blue ribbon panel to generate best practices for running a federal agency
website.54

46 Michael Fitzpatrick, associate administrator for OIRA, Transparency: Access to Information, Executive Office of the
President, Office of Science & Technology Policy, June 10, 2009, http://blog.ostp.gov/2009/06/10/transparency-access-
to-information/.
47 See the Paperwork Reduction Act (44 U.S.C. 3504(b)).
48 OMB Circular A-130 “establishes policy for the management of Federal information resources.” Office of
Management and Budget, Memorandum for the Heads of Executive Departments and Agencies: Management of
Federal Information and Resources, Washington, DC, http://www.whitehouse.gov/omb/Circulars_a130_a130trans4/.
49 Michael Fitzpatrick, associate administrator for OIRA, Transparency: Access to Information, Executive Office of
the President, Office of Science & Technology Policy, June 10, 2009, http://blog.ostp.gov/2009/06/10/transparency-
access-to-information/.
50 Ibid.
51 For more information on MixedInk, see http://www.vimeo.com/2674991.
52 U.S. Office of Science and Technology Policy, Executive Office of the President, Open Government Directive,
Phase 3: Drafting, 2009.
53 MixedInk, Institutionalizing Transparency in Government, at http://mixedink.com/OpenGov/
InstitutionalizingTransparency.
54 Ibid.
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Open Government Directive
On December 8, 2009, more than six months past the 120-day deadline set in the January 21,
2009, memorandum, OMB Director Peter Orszag released a memorandum that required executive
departments and agencies to implement specific actions aimed at increasing transparency, public
participation, and collaboration. The memorandum, also known as the Open Government
Directive, included a variety of initiatives and a series of deadlines. The memorandum
encouraged agencies “to advance their open government initiatives well ahead of those
deadlines,” and restated the administration’s commitment to the “principle that openness is the
Federal Government’s default position for FOIA issues.”55 The memorandum organized the
implementation plan into four main categories of action:
• Publish Government Information Online;
• Improve the Quality of Government Information;
• Create and Institutionalize a Culture of Open Government; and
• Create an Enabling Policy Framework for Open Government.
Within each of these broad categories, the memorandum included a list of steps for agencies to
take to reach the broad OGD goals. Pursuant to the memorandum, the directive was not to be
“construed to suggest that the presumption of openness precludes the legitimate protection of
information whose release would threaten national security, invade personal privacy, breach
confidentiality, or damage other genuinely compelling interests.”56
The OGD did not explain the consequences for ignoring or disobeying the directive’s
requirements. It is, therefore, unclear what may happen to agencies that did not to meet the
requirements set out in the December 8, 2009, OGD or to an agency that did not complete the
requirements in a manner that is consistent with the spirit of the memorandum. It is also unclear
whether there will be consequences for agencies that do not maintain the OGD requirements or
allow certain elements of the OGD to lapse.
Administration Leadership on the OGD
On December 10, 2009, two days after the release of the OGD, federal CTO Aneesh Chopra and
federal CIO Vivek Kundra testified at a hearing of the Senate Budget Committee’s Task Force on
Government Performance. At the hearing, Mr. Chopra said that “[t]he directive calls for each
agency to develop its own unique roadmap, in consultation with the American people and tech-
savvy open government experts, rather than prescribing a one-size-fits-all approach” to create an
Open Government Plan and website.57

55 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 1,
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
56 Ibid. It is unclear how much the three-phased online Open Government Initiative influenced the directive, but some
of the suggestions discussed in the online forum also appeared in the memorandum.
57 U.S. Congress, Senate Committee on the Budget, Task Force on Government Performance, Data-Driven
Performance: Using Technology to Deliver Results, prepared testimony of Aneesh Chopra, 111th Cong., 1st sess.,
December 10, 2009, http://www.senate.gov/fplayers/CommPlayer/commFlashPlayer.cfm?fn=budget121009&st=1005.
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Mr. Kundra said the directive “demonstrates the Administration’s commitment to hardwire
accountability and drive performance to restore the American people’s confidence in
Government.”58 In the question and answer period after the submitted testimony, Mr. Chopra said
that “philosophically [the White House] focus is mostly on producing the data out and
encouraging those to consume it and then create this broader ecosystem, so that the American
people can get that information in ways that they may not know came out of a website in
Washington.”59
On August 12, 2010, Mr. Chopra and OIRA Administrator Cass Sunstein wrote a blog posting
that recognized certain agencies for their Open Government Plans that were “above and beyond
the requirements of the Directive.”60 Using a detailed definition of “Leading Practices” to
evaluate various aspects of each agency’s Open Government Plan, 61 the Administration gave
eleven Leading Practices Awards in four categories:
• Leadership, Governance, and Culture Change;62
• Transparency;63
• Participation and Collaboration;64 and
• Flagship Initiative.65
The Department of Transportation (DOT) received two awards—one for Leadership, Governance,
and Culture Change, and another for Participation and Collaboration. Six agencies—the
Department of the Interior, DOT, the Environmental Protection Agency, the General Services
Administration, National Aeronautics and Space Administration (NASA), and the Office of
Personnel Management—received the Flagship Initiative award. NASA also received the
Participation and Collaboration award. Finally, the Department of Health and Human Services
received the Leading Practices Award for Transparency, and the Department of Treasury and the
Environmental Protection Agency shared the award for Participation and Collaboration with
NASA.

58 Ibid., prepared testimony of Vivek Kundra.
59 Ibid., 60:15.
60 The White House, “Open Government Dashboard “Leading Practices” for Agency Open Government Plans,”
http://www.whitehouse.gov/open/documents/leading-practices-open-govt-plans.
61 For information on the criteria used in each category, see The White House, “The Race to the Top for Openness and
Innovation: Announcing Agency Open Government Plan Leading Practices,” http://www.whitehouse.gov/blog/2010/
08/12/race-top-openness-and-innovation-announcing-agency-open-government-plan-leading-prac.
62 Ibid. The Leadership, Governance, and Culture Change award was based on the agency plan’s ability, among other
criteria, “to stimulate and support employee execution of open government activities at all levels of the organization”
and to describe how “leadership and momentum” for the plan “will be sustained in the future.”
63 The Transparency award criteria included an agency’s data prioritization policies related to its ability to proactively
release useful data, an agency’s intention to release more than the three datasets required by the OGD (this is discussed
later in the report), and the agency’s ability to offer new and creative ways of data presentation to the public.
64 The Participation and Collaboration Award was based on whether an agency created multiple methods for agencies
to receive feedback, how an agency addressed privacy concerns associated with public provision of feedback, whether
an agency implemented ideas generated from feedback received, and whether an agency incorporated pubic input and
feedback into its core mission.
65 Ibid. This award signifies that these OGD plans furthered a primary strategic agency goal, outlined specific
performance measurements, and made OGD innovations available to agencies around the federal government.
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Publish Government Information Online
In general, the OGD charged agencies with expanding public access to information, adopting a
presumption in favor of openness and access.66 The OGD then offered methods of more
effectively and efficiently releasing federal information. First, the memorandum stated that
“[d]elays should not be viewed as an inevitable and insurmountable consequence of high
demand”; instead “agencies should publish information online in an open format that can be
retrieved, downloaded, indexed, and searched by commonly used applications.”67 The
information, according to the memorandum, should be placed online even prior to a FOIA
request, to pre-empt the need for such requests.68
Datasets
The OGD gave agencies 45 days (until January 22, 2010) to “identify and publish online … at
least three high-value data sets and register those data sets at Data.gov.”69 According to the
memorandum, the datasets could not have been “previously available in an online or
downloadable format.”70 An attachment to the memorandum provided a definition of what would
qualify as a “high value data set,” stating “[h]igh value information is information that can be
used to increase agency accountability and responsiveness; improve public knowledge of the
agency and its operations; further the core mission of the agency; create economic opportunity; or
respond to need and demand as identified through public consultation.”71
On January 23, 2010, federal CIO Vivek Kundra posted a blog on Whitehouse.gov’s Open
Government Initiative website that said the datasets released will “increase agency accountability
… and change the default setting of Washington to be open, transparent and participatory.”72
Among the federal datasets released online, Mr. Kundra’s blog posting specifically cited the
National Highway Traffic Safety Administration’s (NHTSA) release of “data rating child safety
seats for ease of use, simplicity of instructions and vehicle installation features.”73 He also

66 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 2.
67 Ibid. The term “open format” is further defined in the memorandum as information that is “platform independent,
machine readable, and made available to the public without restrictions that would impede the re-use of that
information.”
68 Publishing FOIA information online is one suggestion that was repeated by several members of the public who
participated in the Open Government Initiative’s online collaboration. On June 19, 2009, for example, a user
identifying himself as Adam Rappaport from the Citizens for Responsibility and Ethics in Washington, wrote a blog
comment suggesting that “agencies could pro-actively disclose information and records on their websites that would
help avoid a FOIA request from even occurring.” See Office of Science and Technology Policy, “OSTP Blog,”
http://blog.ostp.gov/2009/06/10/transparency-access-to-information/comment-page-2/#comments.
69 Executive Office of the President, Open Government Directive—Data.gov, Frequently Asked Questions for Agencies,
December 23, 2009, http://archives.gov/ogis/news/agency-faqs.pdf.
70 Ibid. Agencies were not permitted to count a dataset that had previously been released on Data.gov as one of the
three datasets required by the initiative.
71 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, Attachment, pp. 7-8.
72 Vivek Kundra, federal CIO, How “Open Gov” Datasets Affect Parents and Consumers, Office of Management and
Budget, January 23, 2010, http://www.whitehouse.gov/blog/2010/01/23/why-open-gov-matters-you.
73 Ibid.
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featured the Department of Transportation’s (DOT’s) release of the “details behind automobile
safety and crash ratings gathered during crash and rollover tests conducted at their research
facilities.”74 Finally, citing yet another dataset available online, Mr. Kundra noted that as part of
the release of datasets, Medicare information, which formerly cost $100 to access through
alternative resources, was now available for free online at Data.gov.
Nextgov.com reported that on January 26, 2010, many of the datasets that agencies claim to have
posted to the website on January 22, 2010, were not available on Data.gov on January 25, 2010.
According to the report, OMB stated that the datasets that were not posted “raised security,
privacy or other concerns.”75
OMB’s rating system, which “tracks agency progress” on meeting the OGD’s deadlines rated
nearly every agency as “meets expectations” in providing the high-value data.76 As of January 19,
2011, the Office of Personnel Management (OPM) and the Council on Environmental Quality
(CEQ) were given ratings of “progress toward expectations.” It was not made clear on the
website—or in other OGD-related information—why OPM and CEQ were given this lower
rating. It is also uncertain what the agencies may do to challenge or change that rating.
As of January 19, 2011, Data.gov had a total of 305,088 datasets available for download on its
website. A vast majority of those datasets, however, were made available by two agencies: the
U.S. Census Bureau, which released 164,530 datasets; and the U.S. Geological Survey, which
released 113,212 datasets. Many agencies provided three or fewer datasets to the site, including
the National Institute of Standards and Technology (three datasets), the Civil Rights Division
within the Department of Justice (one dataset), and the Federal Aviation Administration (one
dataset).77
Web Page
Each agency was charged with creating an Open Government Web page “to serve as the gateway
for agency activities related to the” directive.78 Agencies were given 60 days from the December
8, 2009, release date of the memorandum, to create the Web page (until February 6, 2010).
Agencies are required to “maintain and update that webpage in a timely fashion.”79 The
memorandum required that agency Web pages incorporate ways for the public to offer feedback
on the quality of information, provide suggestions on which information should be a priority to

74 Ibid.
75 Aliya Sternstein, “Data on Data.gov Disappears,” NextGov.com, January 26, 2010, http://techinsider.nextgov.com/
2010/01/datagov_reported_data_is_disappearing.php.
76 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
around.
77 OMB’s rating system for compliance with the OGD aggregated the three-dataset requirement at the department level
for most executive branch entities. These agencies, therefore, are in compliance with the OGD’s requirements, even
through they released fewer than three datasets.
78 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 2. Each agency is
required to use a specific URL address for the website, which follows this model:
http://www.[AGENCYNAME].gov/open.
79 Ibid.
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put online, and offer suggestions on the agency’s “Open Government Plan” overall.80 Agencies
are required to respond to public input related to the website.
As of January 19, 2011, OMB had given all federal agencies a “meets expectations” rating on the
creation of an Open Government website.81 Not every agency’s Web page, however, is identical.
The Social Security Administration’s (SSA’s) Web page, for example, includes references to
President Obama’s memoranda and states that the administration has “a goal … to become more
open and transparent” but remains “dedicated to protecting the personal information that the
American public entrusts to SSA.”82 The site also contains links to the SSA’s recently released
datasets, links to other federal websites aimed at increasing transparency, and a link to allow
visitors to provide the administration with feedback on SSA’s Open Government Plan.83 The U.S.
Department of Agriculture’s (USDA’s) Web page, on the other hand, is much different from SSA’s
page. USDA requires online visitors to register with the website and then permits users to offer
feedback on USDA’s performance or offer new ideas to the department.84 It provides few other
links or additional information.
The private, nonprofit organization OMB Watch, which performs research and advocacy to
promote open government, accountability, and public participation, rated the Open Government
Web pages from the various agencies.85 According to their Web page, OMB Watch “identified
several basic disclosure functions that would make agency open government pages more useful to
the public,” and used this criteria to rate agencies’ Web pages.86 The results put agencies like the
National Aeronautics and Space Administration (NASA), the General Services Administration
(GSA), and the State Department at the top of the rating system.87 OMB, USDA, and the Federal
Deposit Insurance Corporation (FDIC) were among the lowest rated agency websites.88
On February 12, 2010, the Project on Government Oversight (POGO), a private, nonprofit
investigative organization that seeks to foster “a more effective, accountable, open,
and ethical federal government,” released a statement that offered the 13 best practices for
agencies’ open government Web pages.89 Among the recommended best practices were: including
a link to the agency’s open government Web page on the agency’s homepage; designating an
agency open government point of contact for the Web page and supplying his or her contact

80 These plans will be discussed in greater detail later in this report.
81 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
around.
82 The Social Security Administration, “The Open Government Initiative,” http://www.socialsecurity.gov/open/.
83 Details of an Open Government Plan will be described in the next section of this report.
84 U.S. Department of Agriculture, “usda.gov/open,” http://www.usda.gov/open.
85 OMB Watch, “Leaders and Laggards in Agency Open Government Webpages,” February 23, 2010,
http://www.ombwatch.org/node/10785/.
86 Among the criteria used by OMB Watch was whether the agency’s website provided a link to Data.gov and whether
the website provided a link to all the reports the agency provided to Congress. For a complete list of the criteria and the
point value assigned to each criterion, see OMB Watch, “OMB Watch Federal Agency Open Government Webpage
Review Criteria Points,” http://www.ombwatch.org/files/info/criteria.pdf.
87 Ibid.
88 Ibid.
89 Project on Government Oversight, “13 Best Practices for Open Government Webpages,”
http://pogoblog.typepad.com/pogo/2010/02/13-best-practices-for-open-government-webpages.html.
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information on the Web page; justifying why each of the datasets on the website is useful; and
offering e-mail subscriptions to notify users of open government updates.90
FOIA in the Open Government Directive
Pursuant to the OGD, agencies were required to put their annual FOIA report91 on the Open
Government Web page in an open format.92 Agencies with a backlog of FOIA requests were also
required to reduce the number of outstanding requests by 10% per year.93 Agencies will likely be
evaluated on the first year of this requirement some time in 2011.94
Table 1. Requirements for Agencies to Publish Government Information Online
Implementing the December 8, 2009, OGD
Requirements Timeline Deadline
Date
Publish three high-value datasets
45 days from December 8, 2009
January 22, 2010
online in an open format
Create an open government Web
60 days from December 8, 2009
February 6, 2010
page
Reduce FOIA backlog if one exists
10% per year until eliminated
N/A
Source: Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of
Executive Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009,
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
Improve the Quality of Government Information
The OGD does not specifically define what it means by “improving the quality of government.”
Instead, the OGD lists methods it believes will achieve this goal. Among the various methods the
Administration chose to employ to improve the quality of government information, the OGD

90 Ibid.
91 All federal agencies are statutorily required to prepare annual FOIA reports that include detailed statistics on the
number and disposition of FOIA requests and appeals received, processed, and pending at each agency. Agencies must
submit the FOIA reports to the Attorney General at the Department of Justice no later than February 1 of each year. See
5 U.S.C. § 552(e)(1) and the OPEN FOIA Act of 2009 (P.L. 111-83; 123 Stat. 2184).
92 As noted earlier, open formats are “platform independent, machine readable, and made available to the public
without restrictions that would impede the re-use of that information.” Executive Office of the President, Office of
Management and Budget, Memorandum for the Heads of Executive Departments and Agencies: Open Government
Directive, Washington, DC, December 8, 2009, p. 1, http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-
06.pdf.
93 The OGD does not specify the first year that agencies will be held accountable to meet the FOIA backlog reduction
requirement. Most agencies and watchdog organizations, however, cite 2010 as the first year of implementation of this
requirement. See, for example, Sunlight Foundation, “Transparency in Government: Open Government Directive
Timelines,” http://blog.sunlightfoundation.com/2009/12/08/open-government-directive-timelines/; and U.S.
Department of Labor, “FY 2010 FOIA Initial Request Backlog Reduction Plan,” http://www.dol.gov/sol/foia/
10backlog.htm.
94 Although agencies have not yet been evaluated on their ability to reduce FOIA backlogs by 10% per year, OMB did
require agencies to self-assess how they planned to execute their backlog reduction. As part of OMB’s evaluation of
agency progress on OGD initiatives, agencies were required to answer a series of questions about actions taken on
certain OGD requirements and plans for future action on other requirements. Among the questions asked in the self-
evaluation was whether the agency could provide details on how they will reduce their FOIA backlog.
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required agencies, in consultation with OMB, to designate, within 45 days of the directive’s
release (by January 22, 2010), one “high-level senior official” to be in charge of all aspects of
federal spending information that is shared with the public. Specifically, this senior official is to
verify the objectivity and quality of datasets that the public will find on federally hosted websites
like USAspending.gov.
Quality Information Framework
Pursuant to the memorandum, within 60 days of the December 8, 2009, memorandum’s release
(by February 6, 2010), the deputy director of OMB was to issue “a framework for the quality of
Federal spending information publicly disseminated” through a variety of government websites,
including USAspending.gov.95 The framework was to require agencies to submit plans for
controlling information quality, “including system and process changes, and the integration of
these controls within the agency’s existing infrastructure.”
On February 8, 2010, two days after the February 6, 2010, deadline, Jeffrey D. Zients, deputy
director for Management at OMB, fulfilled this OGD requirement by releasing a memorandum on
the “Framework for the Quality of Federal Spending Information.”96 In the memorandum, which
was directed to “senior accountable officials,” agencies were instructed to implement
“organizational structure, policies, processes and systems” that helped meet three objectives:
• Effectiveness and efficiency of the operations producing and disseminating
financial information;
• Reliability of the financial information reported; and
• Compliance with applicable laws and regulations.97
The seven-page memorandum also offered suggestions and ideas on how senior officials could
best meet these goals. Included in these suggestions were completing an “agency risk assessment”
on the release of information that would help “establish appropriate controls over the information,
with greater controls over higher risk areas than lower risk areas.”98
Federal Spending Transparency
The OGD required OMB’s deputy director, within 120 days (by April 7, 2010), to issue “a longer-
term comprehensive strategy for Federal spending transparency.”99 The guidance would

95 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 4.
96 Jeffrey D. Zients, Memorandum for Senior Accountable Officials Over the Quality of Federal Spending Information,
Executive Office of the President, Office of Management and Budget, Open Government Directive – Framework for
the Quality of Federal Spending Information, Washington, DC, February 8, 2010, http://www.whitehouse.gov/sites/
default/files/microsites/20100206-open-government-framework-quality-federal-spending-information.pdf.
97 Ibid., p. 2.
98 Ibid., p. 3.
99 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 4.
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determine how agencies will submit quarterly reports “on their progress toward improving their
information quality.”100
On April 6, 2010, Mr. Zients released a memorandum to “senior accountable officials” on the
quality of federal spending information.101 The memorandum offered guidance on three primary
areas:
• Implementation of a policy to collect and make public federal spending on
awards or grants that may be sub-contracted. Previously only information on
primary awards and grants were made public, but by October 1, 2010, agencies
will be required to report all rewards, including sub-rewards;
• Improvement of the data quality on federal grants and awards that is available to
the public on USAspending.gov. This includes the quarterly publication of
metrics on the quality of the data provided on the website; and
• Enhancement of the technological abilities of USAspending.gov, including the
launch of new tools that would allow users to better use and analyze the data on
the site.102
Table 2. Requirements for the Individual Agencies and Deputy Director for
Management at OMB to Improve the Quality of Government Information
Implementing the December 8, 2009, OGD
Requirements Timeline
Deadline
Date
Each agency must appoint an official to
45 days from December 8, 2009
January 22, 2010
perform quality control on public data
Issue a framework for the quality of federal
60 days from December 8, 2009
February 6, 2010
spending information
Issue a longer-term comprehensive strategy
120 days from December 8, 2009
April 7, 2010
for federal spending transparency
Source: Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of
Executive Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009,
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
Create and Institutionalize a Culture of Open Government
The third category of implementation in the OGD instructed agencies “[t]o create an
unprecedented and sustained level of openness and accountability.”103

100 Ibid.
101 Jeffrey D. Zients, Memorandum for Senior Accountable Officials Over the Quality of Federal Spending
Information: Open Government Directive—Federal Spending Transparency, Executive Office of the President, Office
of Management and Budget, Washington, DC, April 6, 2010, http://www.whitehouse.gov/omb/assets/open_gov/
OpenGovernmentDirective_04062010.pdf.
102 Ibid, p. 3.
103 Ibid.
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The Open Government Dashboard
The OGD gave the federal CIO and CTO 60 days from December 8, 2009 (until February 6,
2010), to create an Open Government Dashboard. The online dashboard was required to include
each agency’s Open Government Plan as well as OMB assessments of each agency’s
implementation of the OGD.104 The site was required to allow the public to see “the state of open
government in the Executive Branch.”105
OMB launched an Open Government Dashboard on its Open Government Initiative website in
late March 2010.106 The site displays a list of departments, councils, and offices within the
executive branch and then gives them a color-coded rating for each of the OGD actions it was
meant to complete. The color coding ranges from red for departments and entities that are rated
“Fails to Meet Expectations” to green for “Meets Expectations.” As of January 19, 2011, nearly
every department and entity rates a green (Meets Expectations) for the categories of High Value
Data, Data Integrity, Open Webpage, and Public Consultation.107 The dashboard also rates the
agencies’ Open Government Plans, which will be discussed later in this report. In the four
categories noted, four yellow ratings, or “Progress Toward Expectations,” were assigned to three
agencies at the time the dashboard went online in March: the Office of Personnel Management
(OPM) for its “High Value Data”; the Council on Environmental Quality for its “High Value
Data” as well as for its “Data Integrity”; and the Office of the United States Trade Representative
(USTR) for its “High Value Data.” 108 The ratings for both the Council on Environmental
Quality’s Data Integrity and the USTR’s “High Value Data” have since been upgraded to green,
but it is not clear how or why those ratings were modified.
As noted earlier in this report, On August 12, 2010, Mr. Chopra and Mr. Sunstein wrote a blog
posting that recognized certain agencies for what the Administration determined were high
quality Open Government Plans.109 The dashboard ratings played a large role in deciding which
agencies qualified for these so-called “Leading Practices” awards. The posting also said that the
Administration updated the online dashboard. The yellow ratings for OPM and the USTR,
however, remain the only yellow ratings.
Open Government Plan
The OGD gave each agency 120 days from December 8, 2009 (until April 7, 2010), to “develop
and publish on its Open Government Webpage an Open Government Plan that will describe how
it will improve transparency and integrate public participation and collaboration into its
activities.”110

104 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 5.
105 Ibid.
106 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
around.
107 Ibid.
108 Ibid. There is no definition provided for any of the rating categories. Nor is there any explanation of why agencies
received such ratings.
109 The White House, “Open Government Dashboard ‘Leading Practices’ for Agency Open Government Plans,”
http://www.whitehouse.gov/open/documents/leading-practices-open-govt-plans.
110 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
(continued...)
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On April 8, 2010, Federal CTO Mr. Chopra published a blog posting on the OGI website111 that
said all cabinet agencies had submitted Open Government Plans.112 In the blog posting, Mr.
Chopra said that he and Federal CIO Mr. Kundra would “assess agency Open Government plans
against the criteria contained within the Open Government Directive and will publish” their
findings on an online dashboard by May 1, 2010.113 Beth Noveck, the United States Deputy Chief
Technology Officer and Director of the White House Open Government Initiative, detailed in an
April 8, 2010, blog posting on the Open Government Initiative website, some of the ideas put in
agencies’ Open Government Plans.114 Ms. Noveck specifically cited the Department of
Education’s plan included publishing Secretary Arne Duncan’s daily schedule online115 and that
the Department of Justice’s plan to build a Freedom of Information Act Dashboard to “promote
transparency” and “encourage [d]epartments to compete to improve their FOIA compliance.”116
On April 7, 2010, OMB posted its review ratings for each agency’s Open Government Plan on the
online Open Government Dashboard.117 The grading system divided the Open Government Plans
into six separate categories, each of which was given a rating of “Fails to Meet Expectations,”
“Progress Toward Expectations,” or “Meets Expectations.” The six rated categories were as
follows:
• Overall Plan;
• Formulating the Plan—“whether the plan was created with interdisciplinary
collaboration and public participation”;
• Transparency—“whether the plan fulfills the requirements for opening the doors
and data of the agency”;
• Participation—“whether the plan fulfills the requirements for improving public
participation in agency policymaking”;
• Collaboration—“whether the plan fulfills the requirements for cooperation within
the department, across agencies, and levels of government, and with the private
sector”; and
• Flagship Initiative—“whether the plan fulfills describing at least one specific and
ambitious open government project.”118
According to OMB’s Open Government Plan Evaluation Criteria website, 30 criteria—drawn
from the OGD—were used to evaluate each agency’s overall Open Government Plan.119 Prior to

(...continued)
around.
111 See http://www.whitehouse.gov/omb/open.
112 Aneesh Chopra, “Making Government Accountable for Openness,” The White House, Washington, DC, April 8,
2010, http://www.whitehouse.gov/blog/2010/04/08/making-government-accountable-openness.
113 Ibid.
114 Beth Noveck, “Open Government Plans: A Tour of the Horizon, The White House,” Washington, DC, April 8,
2010, http://www.whitehouse.gov/blog/2010/04/08/open-government-plans-a-tour-horizon.
115 Ibid.
116 Ibid.
117 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
around.
118 Ibid.
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the April 7, 2010, release of the OMB ratings, each agency was asked to use the evaluation
criteria to self-evaluate their plan. Among the self-evaluation criteria were questions, including
the following:
• “Was public consultation involved in crafting the plan?”
• “Is there a plan to foster the public’s use of this information to increase public
knowledge and promote public scrutiny of agency services?”
• “Does the [plan] description provide an overview of the initiative: how it
addresses one or more of the three openness principles and how it aims to
improve agency operations?”120
In the OMB rating system, no agencies received a rating of “Fails to Meet Expectations,” the
lowest rating. Very few of the agencies received a “Meets Expectations” rating, the highest rating,
for their overall plan. Agencies that did receive the “Meets Expectations” rating for their overall
plan received that same rating in the other five categories as well. Among the government entities
that received this highest rating were the Department of Health and Human Services, DOT, and
NASA.121 Several Agencies were rated as making “Progress Toward Expectations” in all but one
category. For example, USDA was rated as making “Progress Toward Expectations” in five of the
six categories. It was rated as “Meets Expectations” in the “Formulating the Plan” category. The
Department of Education had an identical rating.122 In the Administration’s August 12, 2010
update of the online dashboard, the Department of State and the National Science Foundation
garnered the most yellow ratings assigned to their Open Government Plans, with yellow ratings in
five of the six criteria. The only green rating assigned to the Department of State was for
“Participation.”123 The only green assigned to the National Science Foundation was assigned a
green for “Flagship Initiative.”124
In addition to OMB’s rating system, a collection of transparency watchdog organizations worked
together to create their own evaluation of federal agencies’ Open Government Plans.
OpenTheGovernment.org, a coalition of journalists, consumer and good government groups,
environmentalists, library groups, labor, and others who seek a more open and transparent
government, conducted an audit of the open government plans from April 12 through April 23.
Using OpenTheGovernment.org’s methodology, NASA was given the highest agency rating, with
the Department of Housing and Urban Development and the Environmental Protection Agency

(...continued)
119 The White House, “Open Government Initiative: Open Government Plan Evaluation Criteria,”
http://www.whitehouse.gov/open/documents/evaluation.
120 Ibid..
121 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
around.
122 Ibid.
123 The White House, “Open Government Initiative: Around the Government,” http://www.whitehouse.gov/open/
around.
124 Ibid.
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achieving the second and third highest ratings respectively.125 Among the agencies with the lowest
ratings were DOJ, the Department of Energy, and OMB.126
Transparency Working Group
The OGD gave the deputy director for Management at OMB, the federal CIO, and the federal
CTO 45 days (until January 22, 2010) to “establish a working group that focuses on transparency,
accountability, participation, and collaboration within the Federal Government.”127 The working
group is to include “senior level representation from program and management offices throughout
the government” as is to focus on “several critical functions.”128 Among those functions are the
following:
• Provide a forum to share best practices on innovative ideas to promote
transparency, including system and process solutions for information collection,
aggregation, validation, and dissemination;
• Coordinate efforts to implement existing mandates for federal spending
transparency, including the Federal Funding Accountability Transparency Act
and the American Reinvestment and Recovery Act; and
• Provide a forum to share best practices on innovative ideas to promote
participation and collaboration, including how to experiment with new
technologies, take advantage of the expertise and insight of people both inside
and outside the federal government, and form high-impact collaborations with
researchers, the private sector, and civil society.129
On February 5, 2010, Mr. Kundra and Mr. Chopra wrote a blog posting on the OGI website
saying that on January 6, 2010, the White House created a working group “to focus on
transparency, accountability, participation, and collaboration within the Federal Government.”130
According to the blog posting, the group has two primary functions:
1. Develop and share the best practices and innovative ideas to promote
transparency, encourage participation, and foster collaboration; and
2. Coordinate efforts to implement existing mandates for federal spending
transparency.131
There are 34 members of the working group, including, among others, CIOs from USDA, the
Department of State, and OPM.132

125 OpenTheGovernment.org, “Open Government Plans Audit: Final Rankings,” https://sites.google.com/site/
opengovtplans/home/about-this-project/final-rankings. The website includes detailed information on the methodology
used to generate the ranking system.
126 Ibid.
127 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 5.
128 Ibid.
129 Ibid.
130 The White House, “Open Government Initiative: Two New Groups Dedicated to Open Government,”
http://www.whitehouse.gov/blog/2010/02/05/two-new-groups-dedicated-open-government.
131 Ibid.
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Incentive Structures
The directive gave the deputy director for management at OMB 90 days (until March 8, 2010) to
issue “a framework for how agencies can use challenges, prizes, and other incentive-backed
strategies to find innovative or cost-effective solutions to improving open government.”133
On March 8, 2010, Jeffrey Zients, deputy director for management at OMB, released a
“Memorandum for the Heads of Executive Departments and Agencies on Guidance on the Use of
Challenges and Prizes to Promote Open Government.”134 Within the document, Mr. Zients
described the benefits of offering prizes as work incentives, analyzed different types of prizes that
may lead to different outcomes, and listed existing statutory authorities that departments and
agencies may use to administer prizes to their employees. The prizes, according to Zients, will
incentivize federal employees to offer creative ways to make government more open and
transparent.
Table 3. Requirements for Agencies and Government Officials to Create and
Institutionalize a Culture of Open Government
Implementing the December 8, 2009, OMB Memorandum on Open Government
Requirements Timeline
Deadline
Date
Deputy Director of Management at OMB, Federal CIO
45 days from December 8, 2009
January 22, 2010
and CTO establish working group to address
transparency, accountability, and participation
Federal CIO and CTO create Open Government
60 days from December 8, 2009
February 6, 2010
Dashboard
Deputy Director of OMB issues guidance on a
90 days from December 8, 2009
March 8, 2010
framework on incentives to prompt new solutions to
make government more open
Agencies publish an Open Government Plan
120 Days from December 8, 2009
April 7, 2010
Source: Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of
Executive Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009,
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.

(...continued)
132 The White House, “Open Government Initiative: Open Government Working Group,” http://www.whitehouse.gov/
open/documents/open-government-directive/working-group. As noted on the Open Government Working Group
website, eleven of the agencies represented in the working group are not statutorily required to comply with the Chief
Financial Officer Act (P.L. 101-576), which requires certain agencies to have Chief Financial Officer positions within
their agencies. The eleven agencies that are not required to have CFOs are the Office of Management and Budget, the
Office of Science and Technology Policy, the U.S. International Trade Commission, the National Archives and
Records Administration, the National Traffic Safety Board, the Corporation for National and Community Service, the
Pension and Benefit Guarantee Corporation, the Securities and Exchange Commission, the National Labor Relations
Board, and the Peace Corps. The White House, “Open Government Initiative: Open Government Working Group,”
http://www.whitehouse.gov/open/documents/open-government-directive/working-group.
133 Ibid.
134 Jeffrey D. Zients, Memorandum for the Heads of Executive Departments and Agencies: Guidance on the Use of
Challenges and Prizes to Promote Open Government, The Office of Management and Budget, Washington, DC, March
8, 2010, http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-11.pdf.
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Create an Enabling Policy Framework for Open Government
The directive also sought to make certain that federal open government policies are able to keep
up with constantly changing technologies, to use “new forms of communication between a
government and the people.”135
Review of Existing Guidance
The OGD directed the administrator of OIRA, in consultation with the federal CIO and CTO, to
review existing guidance on “existing OMB policies … to identify impediments to open
government and the use of new technologies.”136 The initiative cited the Paperwork Reduction
Act guidance as a place for the OIRA administrator to start a search for policies that may be a
barrier to open government. The administrator was then instructed within 120 days of December
8, 2009 (April 7, 2010), to “issue clarifying guidance and/or propose revisions to such policies, to
promote greater openness in government.”137
On April 7, 2010, Cass Sunstein, the administrator at OIRA, released a series of memoranda
addressing new social media issues and how the Paperwork Reduction Act would affect new
social media policies.138 In one of the memoranda, Mr. Sunstein wrote that many of the federal
government’s social media activities are exempted from compliance with the Paperwork
Reduction Act. The act, which requires agencies and departments to acquire OMB clearance prior
to soliciting feedback from the general public, has often been cited as over-burdensome and time-
consuming for federal government entities seeking public input.139 Mr. Sunstein’s memorandum,
however, included the following:
The PRA does not expressly define “information.” OMB’s regulations implementing the
PRA define “information” as “any statement or estimate of fact or opinion, regardless of
form or format, whether in numerical, graphic, or narrative form, and whether oral or
maintained on paper, electronic or other media.” In defining “information,” OMB regulations
specifically exclude several types of activities, three of which are especially relevant to
agency uses of social media and web-based interactive technologies to promote the goals of
open government:
• General Solicitations. 5 C.F.R. 1320.3(h)(4) excludes “facts or opinions submitted in
response to general solicitations of comments from the public, published in the Federal
Register or other publications, regardless of the form or format thereof, provided that no
person is required to supply specific information pertaining to the commenter, other than that

135 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 5.
136 Ibid., p. 6.
137 Ibid.
138 The memoranda included a Paperwork Reduction Act primer (http://www.whitehouse.gov/omb/assets/inforeg/
PRAPrimer_04072010.pdf), guidelines to increase openness in the rulemaking process (http://www.whitehouse.gov/
omb/assets/inforeg/IncreasingOpenness_04072010.pdf), and modification of social media policies
(http://www.whitehouse.gov/omb/assets/inforeg/SocialMediaGuidance_04072010.pdf).
139 See, for example, Vivek Kundra and Michael Fitzpatrick, The White House Blog, “Open Government Initiative:
Enhancing Online Citizen Participation Through Policy,” June 16, 2009, http://www.whitehouse.gov/blog/2009/06/16/
enhancing-online-citizen-participation-through-policy.
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necessary for self-identification, as a condition of the agency’s full consideration of the
comment.”
• Public Meetings. 5 C.F.R. 1320.3(h)(8) excludes certain “facts or opinions obtained or
solicited at or in connection with public hearings or meetings.”
• Like Items. 5 C.F.R. 1320.3(h)(10) reserves general authority for OMB to identify other
“like items” that are not “information.”140
Table 4. Requirements for the OIRA Administrator, and
the Federal CIO and CTO to Review Existing Guidance
Implementing the December 8, 2009, OGD
Requirements
Time Line
Deadline Date
Review guidance on existing OMB
120 days from December 8, 2010
April 7, 2010
policies
Source: Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of
Executive Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009,
http://www.whitehouse.gov/omb/assets/memoranda_2010/m10-06.pdf.
After the Open Government Directive
On December 8, 2010, OMB and General Services Administration (GSA) officials requested
public input to help design a software tool for all agencies to use when seeking comments and
feedback from the public.141 The tool, currently called ExpertNet, is to
• enable government officials to circulate notice of opportunities to participate in
public consultations; and
• provide the public with a mechanism to offer useful, relevant, and manageable
feedback to government officials.142
According to OMB and GSA, ExpertNet is to complement the two existing formal methods of
acquiring such information: the use of federal advisory bodies and the public comment
opportunities within the regulatory process.143
OMB and GSA created a wiki website for public comment on the ExpertNet system. The wiki
site allows users to comment on and edit the draft plan for the system, which aims to provide
federal employees with an online space to create discussion topics or questions that would then
either be sent to or accessed by interested persons. The comment period for ExpertNet’s design

140 Cass Sunstein, Memorandum for the Heads of Executive Departments and Agencies, and Independent Regulatory
Agnecies: Social Media, Web-based Interactive Technologies, and the Paperwork Reduction Act, The White House:
Office of Information and Regulatory Affairs, Washington, DC, April 7, 2010, pp. 2-3, http://www.whitehouse.gov/
omb/assets/inforeg/SocialMediaGuidance_04072010.pdf.
141 Aneesh Chopra and Shelley Metzenbaum, Office of Management and Budget, “Designing for Democracy,” The
White House Blog: Open Government Initiative, http://www.whitehouse.gov/blog/2010/12/08/designing-democracy-0.
142 Office of Management and Budget, Open Government Initiative, “Background Information,”
http://expertnet.wikispaces.com/Getting+Started.
143 Ibid.
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was extended through January 23, 2011.144 The executive branch has not set aside any funding for
the creation of ExpertNet, and instead anticipates “adapting already available tools and know-
how to achieve the goal of getting better expertise faster and more openly.”145
Analysis
The Obama Administration memoranda issued on January 21, 2009, and December 8, 2009,
prompt a variety of policy questions, including whether greater transparency can lead to a more
efficient and effective government in a milieu of post-September 11 national security concerns.
Greater public transparency and participation may lead to new ideas on how departments and
agencies can cut costs and operate more efficiently. Many of the public comments and
suggestions offered to date, however, have not provided viable policy options. Moreover,
increased transparency and mandatory public participation requirements can slow down
government operations by elongating the deliberative process. Increased participation may
increase trust in the federal government while concurrently reducing the speed of government
action. Additionally, increased government transparency may prompt security and privacy
concerns.
Since its first full day in office, the Obama Administration has declared itself dedicated to
“ushering in a new era of open and accountable government meant to bridge the gap between the
American people and their government.”146 To meet this goal, the administration created an Open
Government Initiative. The initiative seeks to open the executive branch of the federal
government in three main ways: increase government transparency, public participation, and
collaboration. The Open Government Directive, a memorandum detailing how departments and
agencies are to implement these principles, is a key component of the larger Open Government
Initiative.
The directive implements the initiative’s core values through four strategies:
1. Publish Government Information Online;
2. Improve the Quality of Government Information;
3. Create and Institutionalize a Culture of Open Government; and
4. Create an Enabling Policy Framework for Open Government.147
Congress can decide whether to codify any of the new Obama Administration transparency
policies. On the other hand, Congress can decide whether to enact a law prohibiting the
implementation of any of the open government policies. Congress could also leave these policy

144 David McClure, Office of Management and Budget, Open Government Initiative Blog, “ExpertNet: Two More
Weeks to Weigh In,” http://www.whitehouse.gov/open/blog.
145 Aneesh Chopra and Shelley Metzenbaum, Office of Management and Budget, The White House Blog: Open
Government Initiative, “Designing for Democracy,” http://www.whitehouse.gov/blog/2010/12/08/designing-
democracy-0.
146 Executive Office of the President, “Transparency and Open Government,” 74 Federal Register 4685, January 26,
2009. The memorandum was released on January 21, 2009, http://www.whitehouse.gov/the_press_office/
Transparency_and_Open_Government/.
147 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009.
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decisions up to the executive branch. The Obama Administration’s open government policies
range from the creation of a working group that focuses on transparency, accountability, and
participation issues to the drafting of new guidelines for FOIA. Congress may decide that some of
the policies in President Obama’s December 8, 2009, memorandum increase transparency, public
participation, and collaboration in a way that improves the effectiveness of federal government.
Conversely, Congress may find that increased transparency and public attention make the federal
government more susceptible to information leaks of sensitive materials. Additionally, increased
collaboration and participation may make the sometimes slow process of democratic deliberation
even slower. Congress may also choose to evaluate the monetary costs associated with
implementation of the open government policies.
The OGD did not explain the consequences for ignoring or disobeying the directive’s
requirements. It is, therefore, unclear what may happen to agencies that did not to meet the
requirements set out in the December 8, 2009, OGD or to an agency that did not complete the
requirements in a manner that is consistent with the spirit of the memorandum. It is also unclear
whether there will be consequences for agencies that do not maintain the OGD requirements or
allow certain elements of the OGD to lapse. If Congress chose to codify any elements of the
OGD, it may consider including penalties for agencies that fail to comply with the requirements.
Transparency
The OGD states that “[t]ransparency promotes accountability by providing the public with
information about what the government is doing.”148 In another examination of transparency, the
administration added that “putting data online” is an essential component of transparency.149 In its
Open Government progress report, the Administration said “[d]emocratizing data reduces cost
and eliminates waste, fraud, and abuse; creates new jobs and businesses, and improves people’s
daily lives.”150
The OGD required agencies to release a variety of new datasets to the public.151 The datasets
released on January 22, 2010, have been made available on Data.gov. A listing of each
department (sometimes by agency or subagency) and the number of datasets they have uploaded
to the website, is also available at Data.gov.152 The listing of datasets also includes a column of
information offering the number of times a particular dataset has been downloaded from the
website.
Although the datasets released to the public may be useful in many ways, it is unclear how some
of them will increase the transparency of the operations and actions of the federal government.
Jerry Brito, an adjunct law professor at George Mason University, said that transparency should

148 Ibid., p. 1.
149 Executive Office of the President, Open Government: A Progress Report to the American People, December 2009,
p. 2.
150 Ibid. It is unclear from the progress report how transparency creates new jobs. It is also unclear whether such jobs
would be public or private sector positions.
151 The three high value datasets that were to be published on January 22, 2009, were made available via Data.gov. The
directive also discusses the use of other public venues for government data, including USAspending.gov and
Recovery.gov.
152 See Data.gov, “Participation to Data.gov by Agency,” http://www.data.gov/reports/agencyparticipants.
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be “government disclosing its own actions and not just information on those it regulates.”153 The
dataset on child safety seats released by the National Traffic Highway Safety Administration
(NTHSA), for example, increases public knowledge of child safety seats and may inform a
consumer’s future purchases, but it does not affect the general transparency of NHTSA’s
operations. Like DOT’s information on crash test results discussed earlier in this report, the
dataset may increase public collaboration by encouraging public suggestions on more appropriate
safety testing criteria to produce more helpful or accurate datasets in the future. It also can
contribute to the public consumer’s knowledge of child safety seats. Similarly, removing the $100
fee for certain Medicare information, which also was discussed earlier in this report, does not
make the Centers for Medicare and Medicaid Services more transparent.
Arguably, releasing previously unavailable datasets to the public increases transparency. The new
datasets offer the public more information than was previously available, making the particular
issue area more transparent. But this type of transparency does not give Congress or the public
much insight into how the federal government itself operates or executes policies. Releasing these
types of datasets or making previously available datasets easier to find and use may be better
characterized as increasing data accessibility and not as increasing government transparency.
With a multitude of new datasets and other information available to the public, the Administration
has stated it will be the duty of the public to keep agency performance in check.154 This
“crowdsourcing” may improve the quality of data that are released to the public by allowing more
people to search through datasets. As noted earlier in this report, however, not all agencies are
releasing datasets that demonstrate how the federal government operates. Crowdsourcing may
improve data and operations, but only for agencies that make useful data accessible.
Releasing these datasets to the public also assumes that the public will have the knowledge,
capacity, and resources to evaluate the data, offer valid insights, and reach replicable results and
verifiable conclusions. Irresponsible manipulation of the datasets may allow certain groups or
individuals to present unclear or skewed interpretations of government datasets, or come to
questionable conclusions. Moreover, users of this data will have to know exactly what datasets
they seek, especially in agencies that release hundreds of thousands of datasets. Counter
intuitively, agencies that release vast amounts of datasets may become even less transparent
because the public will be unable to decipher which data are important to their needs. Users may
have to sift through thousands of datasets to determine which ones include the information they
seek. It may be difficult for a researcher to pinpoint the dataset he or she needs in a collection of
similarly titled datasets. Other data may be made available in a format with which a researcher is
unfamiliar. Making the data public, in this way, does not necessarily make the data more
accessible or usable. Without the ability of the public to access and use the datasets that are
released, the government may not be more transparent.
Congress may consider ways to ensure that the public has a means to determine the authenticity
of the data provided to them. Congress may also decide it needs to codify ways to ensure that all

153 Jerry Brito, statement made at a public event for the Advisory Committee on Transparency, a private collection of
transparency advocates that is supported by the Sunlight Foundation, April 29, 2010.
154 At a December 10, 2009, Senate Budget Committee Task Force on Government Performance hearing, both the
federal CIO (Vivek Kundra) and the federal CTO (Aneesh Chopra) said that watch dog groups and members of the
public would enforce agency accountability. U.S. Congress, Senate Committee on the Budget, Task Force on
Government Performance, Data-Driven Performance: Using Technology to Deliver Results, 111th Cong., 1st sess.,
December 10, 2009, http://www.senate.gov/fplayers/CommPlayer/commFlashPlayer.cfm?fn=budget121009&st=1005.
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members of the public have access to these authentic datasets as well as the tools necessary to
engage with the data—regardless of an individual’s level of expertise or financial support. In
addition, Congress may want to create ways to make clear to the public when data analysis is
performed by the federal government as opposed to when analysis is performed by a private
group or individual with its own goals and mission. Congress may choose to require certain
government agencies to perform reviews and analyses of the data that is released to the public.
Congress may also decide to hold hearings in which members themselves determine the value and
validity of agencies’ datasets and analysis. Congress may also seek to work with agencies to assist
the public in finding information they seek.
Certain OGD requirements may increase government transparency. For example, the requirement
that agencies publish online—in an open, text-searchable format—all information that is to be
released pursuant to the Federal Records Act may allow for easier access and more rapid analysis
of federal records.155 In addition, agencies must reduce their FOIA request backlogs by 10% per
year. These requirements may push agencies to make information available before a FOIA request
would need to be filed to access it. In addition, FOIA requests may be answered more quickly
than in the past. A March 2010 audit of FOIA implementation during the first year of the Obama
Administration (2009) determined, however, that fewer than a third of executive-branch agencies
made “concrete changes” to their internal FOIA policies after the release of both President
Obama’s and Attorney General Eric Holder’s memorandums on the topic.156 According to the
George Washington University report, responses to FOIA requests varied greatly by agency.157
Public Participation
In the December 8, 2009, directive, OMB said that “[p]articipation allows members of the pubic
to contribute ideas and expertise [so] … their government can make policies with the benefit of
information that is widely dispersed in society.”158 The Office of the President’s Progress Report
said that “[g]reater access to information about how the government does its work” would drive
“greater citizen participation.”159
The OGD presumably was created, in part, using suggestions from the public. As noted earlier,
these suggestions were of varied relevance and utility. One editorial on the use of public
participation noted the need of well-informed public to make this directive successful.

155 44 U.S.C. Chapter 31.
156 The National Security Archive and The George Washington University, Sunshine and Shadows: The Clear Obama
Message for Freedom of Information Meets Mixed Results, The National Security Archive FOIA Audit, Washington,
DC, March 15, 2010, p. 3, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB308/2010FOIAAudit.pdf.
157 Ibid.
158 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009, p. 1.
159 Executive Office of the President, Open Government: A Progress Report to the American People, December 2009,
p. 4. This assertion, however, is untested. Several studies have found that using the internet in other areas of federal
governance as a way to increase public participation has not revolutionized how government interacts with the people.
See, for example, Stuart W. Shulman, “The Internet Still might (but Probably Won’t) Change Everything: Stakeholder
Views on the Future of Electronic Rulemaking,” available at http://erulemaking.ucsur.pitt.edu/doc/reports/e-
rulemaking_final.pdf. In another example, Jeffry Lubbers of American University argued that in certain circumstances,
the internet may have the unintended consequence of giving industry groups and other vested interests even more
power in the policy making process. See Ralph Lindeman, “Electronic Rulemaking Could Advantage Private Interest
Groups, Top Expert Asserts,” BNA Daily Report for Executives, December 6, 2005, p. A-30.
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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.160
The directive required that each agency establish an Open Government Web page on which the
public can offer assessments and other feedback on the quality of published information.
Agencies are also required to respond to this public input. It is unclear whether public comments
will be useful to the federal government, or whether responding to public comments will cause
delays in government action. It is also unclear how many dedicated employees and work hours
may be needed to respond to these comments. Congress may find that using technology that
allows the public to comment as well as to evaluate the public comments of others—similar to the
technology used by OMB during the three-stage Open Government Initiative information
gathering process—may help agencies sift through what may be voluminous public responses of
varying utility. Such rating systems may also allow federal agencies to direct their attention to
suggestions that offer greater utility and application to policy improvements.
Congress may also have concerns that most public participation may come from special interest
groups that have the time, resources, and knowledge to engage with federal agencies. Using Web
pages and other technology to solicit public opinion may, therefore, strengthen relationships
between certain individuals or organizations and federal agencies—granting certain participants
greater access to policymakers.
Given the wide disparity of approaches used by agencies to develop the Open Government Web
pages, if Congress chose to statutorily require agencies to maintain Open Government Web pages,
it may want to include more specific criteria to make agency websites more uniform. The OGD
provides very little information as to what must be included on the Open Government Web pages.
The OGD requires agencies to put their annual FOIA report on the page as well to solicit and
respond to public feedback through the Web page. Congress could statutorily require agencies to
follow certain website protocols. Options for agency websites could include requirements to post
all released datasets on their Open Government Web pages. Congress could also require agencies
to put all documents released under FOIA on the agency websites in a text-searchable format.
Congress could also choose not to act. Alternatively, it could wait for more public feedback on the
utility of agencies’ Open Government Web pages as well as judge for themselves whether these
websites are helpful and necessary.
As mentioned earlier, OMB and GSA are currently designing ExpertNet, a tool the
Administration believes will assist agencies in seeking out useful public comments and feedback.
The Administration is soliciting public feedback to create the tool, which itself may provide the
public with increased influence on agency policy implementation.
Collaboration
Collaboration, according to OMB, “improves the effectiveness of Government by encouraging
partnerships and cooperation within the Federal Government, across levels of government, and

160 Steven Aftergood, “New Directive Would Foster Open Government,” Secrecy News, December 8, 2009,
http://www.fas.org/blog/secrecy/2009/12/open_government.html.
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between the Government and private institutions.”161 The Progress Report from the Office of the
President, adds that “collaboration focuses on finding innovative strategies for solving
challenges.”162
The OGD required OMB’s deputy director for Management and other officials to create a
working group focused on transparency, accountability, participation, and collaboration. The
working group is charged with taking “advantage of the expertise and insight of people both
inside and outside the Federal Government, and form high-impact collaborations with
researchers, the private sector, and civil society.”163 The working group, however, is not required
to include members from the general public. The directive states that the group will include
“senior level representation from program and management offices throughout the Government.”
Congress may find that the design of the working group should remain as recommended by the
administration. Conversely, Congress may decide to create in statute a similar working group or
advisory body that requires some members to represent the general public or other areas of civil
society that may have an interest in the group’s findings. The addition of such members may
make the operations of the working group more transparent, as well as lead to more creative and
effective recommendations.
The deputy director for OMB was required to issue additional guidance on how agencies can use
“challenges, prizes, and other incentive-backed strategies to find innovative or cost-effective
solutions to improving open government.”164 Creating an incentive structure that prompts federal
employees to offer creative policy ideas can be difficult. Congress may seek to codify the use of
incentives and ensure that the prizes are of a value that would be of interest to federal employees.
Congress may also seek to find additional methods to recognize federal employees who offer
viable and effective policy solutions.

Author Contact Information

Wendy R. Ginsberg

Analyst in Government Organization and
Management
wginsberg@crs.loc.gov, 7-3933



161 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009.
162 Executive Office of the President, Open Government: A Progress Report to the American People, December 2009,
p. 5.
163 Executive Office of the President, Office of Management and Budget, Memorandum for the Heads of Executive
Departments and Agencies: Open Government Directive, Washington, DC, December 8, 2009.
164 Ibid, p. 5.
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