Open Sesame

By John Liang / December 8, 2009 at 5:00 AM

The White House today issued a directive to all federal agencies to "take specific actions to open their operations to the public," according to a statement on the Office of Management and Budget Web site:

The three principles of transparency, participation, and collaboration are at the heart of this directive. Transparency promotes accountability. Participation allows members of the public to contribute ideas and expertise to government initiatives. Collaboration improves the effectiveness of government by encouraging partnerships and cooperation within the federal government, across levels of government, and between the government and private institutions.

According to the directive itself:

This Open Government Directive establishes deadlines for action. But because of the presumption of openness that the President has endorsed, agencies are encouraged to advance their open government initiatives well ahead of those deadlines. In addition to the steps delineated in this memorandum, Attorney General Eric Holder earlier this year issued new guidelines for agencies with regard to the Freedom of Information Act (FOIA). With those guidelines, the Attorney General reinforced the principle that openness is the Federal Government’s default position for FOIA issues.

The directive "promises further steps to come," Steven Aftergood of the Federation of American Scientists writes on his Secrecy News blog:

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

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

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

Success is not guaranteed.

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