US government plan to publish a final plan without time for civil society review violates OGP co-creation standards

[Alexander Howard]

Hello all --

My apologies for any cross-posting and for the length of this response.

Last night, the U.S. government posted a document that it identifies as a "reasoned response" to the ideas & feedback it has received since May 2022, when the USA posted online forms on open.usa.gov. The unsigned document  implicitly claims that the response and the previous summary of civil society feedback are accurate and representative summaries of the priorities and proposals we have submitted.

Contrary to the basic requirements of the Open Government Partnership's co-creation standards, however, the US government has not "published and disseminated all written contributions (e.g., consultation input as well as responses) to the action plan development on the OGP website/webpage and via other appropriate channels."

In this document, the U.S. government has also not "provided feedback to stakeholders on how their contributions were considered during the creation of the action plan," because our contributions are not public, as in past cycles, nor specifically acknowledged.

Moreover, as the four meetings the U.S. government held in October and November were conducted under Chatham House rules and were not recorded, there is no written record nor archived video to compare against the proposed themes and vague proposed commitments in the reasoned response, previous summary, or what was presented in the October workshops.

While this response refers to a draft national action plan and commitments, neither a draft national action plan nor draft commitments have been published online nor disseminated to the public and press.

Without public disclosure of all proposed ideas and commitments, it is impossible to judge whether the summaries the US government are accurate or not, or if they represent the open government priorities of U.S. civil society that were collaboratively drafted over 2020, submitted to the Biden-Harris transition, and then provided again in this process. https://blueprintforaccountability.us/progress-report/#open-government

Our review of those actions and the proposed themes in the U.S. government's "reasoned response" today, however, shows that the proposed themes and commitments reflect existing programs, priorities of the administration, and statutory requirements, not those of the stakeholders in civil society nor the priorities recommended by OGP's IRM researchers.

To take one example, the U.S. government is "committing" to implement the U.S. Attorney General's revised FOIA guidelines and the initiatives that the Office of Information Policy is already pursuing, which the Justice Department shared during one of the workshops in November.

None of these measures reflect the proposed commitments on FOIA from civil society, including restoring the cross-agency priority goal on FOIA that former President Obama created in 2016 or the release-to-one, release-to-all policy piloted during the Obama-Biden administration, issuing and implementing the overdue guidance on open government data mandated by Title II of the Evidence Act that would help improve public access to public information, much less proposing and pushing for reforms to the FOIA in the 118th Congress.

To take another, the administration has proposed implementing the rulemakings on beneficial ownership registry that Congress mandated as a commitment. Many other examples populate this reasoned response document, which, again, is not a draft plan with draft commitments that have deliverables, timelines, and accountable officials.

These are all actions contrary to process.

OGP's co-creation standards specifically state that  "once commitments have been drafted, government representatives review with the multi-stakeholder forum their comments, the final selection of commitments to be included in the NAP and state clearly their reasoning behind decisions," and then "publishes and disseminates all written contributions (e.g., consultation input as well as responses) to the action plan development on the OGP website/webpage and via other appropriate channels."

CIvil society might reasonably expect a public meeting at which a senior accountable official at the ministerial level would be accountable for not including specific civil society priorities – much less statutory requirements – but there is no such meeting scheduled.

There has been no public commitment from the U.S. government to disseminate all written contributions, despite ample time and opportunity over 2022, nor meet with civil society.

This is particularly concerning, given that the US government broke its public promises in April and May 2022 to co-create a new National Action Plan for Open Government over the summer, which would have allowed ample time for co-creation of commitments over time, with multiple rounds of drafting and responses.

Instead, the U.S. government response now states that the US government plans to  publish a final plan during the holidays without the required 2 weeks for public comment on *draft* commitments and a draft action plan. This is an unacceptable breach of trust.

This suggestion alone should prompt the US government being placed under review by the OGP Steering Committee. When considered against the administration's conspicuous lack of public promotion of past or present Open Government Partnership commitments, absence of a progress report, and decision to stop holding public, on-the-record meetings during this fall, the action is clearly merited and long overdue.

In order to meet the OGP's co-creation standards, the U.S. government must publish a draft national action plan and draft commitments, and provide two weeks of review, then incorporate that feedback.

Instead, civil society in the United States now face the prospect of an "action plan" that would repurpose existing programs, priorities, and orders, without committing to create new initiatives, issue new orders, enact new laws or rules, or implementing various statutory requirements that members of civil society have been petitioning multiple administrations to follow through on for years.

There is little reason for optimism left that this spiral towards opacity will change.

As we have repeatedly emphasized, an opaque co-creation process in which the federal government does not attempt to engage all of the American people directly and through the press has been flawed by design and limited by default, threatening to cast a shadow over the work of the dedicated officials who have re-engaged this fall. It also fails to deliver on the 8th commitment in the 4th National Action Plan.

If the U.S. government is unwilling or unable to co-create a national action plan with the American people as equal partners, U.S. diplomats and development officials should stop promoting OGP as a useful platform in other nations.

Ultimately, OGP should consider suspension unless the White House acknowledges these deficiencies, publicly promotes the draft action plan to the press and public,  and commits to extending the consultation into 2023 to allow time for all Americans to read and respond to a draft national action plan and draft commitments.

To do otherwise would enable more openwashing, after the Secretariat allowing the most corrupt administration in American history to remain in good standing, and signal to all participating nations that regression, opacity, and inaction by the U.S. government are acceptable standard for membership in the Partnership, devaluing the utility of this platform for billions of people around the world.

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Alexander B. Howard

Director, Digital Democracy Project | governing.digital

E-PluribusUnum.org | @OpenGov

410.849.9808 | @digiphile | He / him