Delivering on Open Government: The Obama Administration's Unfinished Legacy

This report examines progress made during President Obama's first term toward open government goals outlined in a comprehensive set of recommendations that the open government community issued in November 2008, titled Moving Toward a 21st Century Right-to-Know Agenda. We examine activity in the three main areas of the 2008 report: creating an environment within government that is supportive of transparency, improving public use of government information, and reducing the secrecy related to national security issues

Transparency With(out) Accountability: Open Government in the United States

The administration of Barack Obama has been marked by its stated quest for transparency. On his first full day in office, President Obama signed the Open Government Memorandum, declaring that he was committed to creating an unprecedented level of openness in government and that he aimed to promot[e] accountability and provid[e] information for citizens about what their Government is doing. Following this ambitious commitment, the Obama Administration engaged in a frenzy of transparency-related activities, bringing to light thousands of data sets that contained previously unavailable information in a wide variety of regulatory domains. Dozens of other countries have enthusiastically followed the American example, vowing to release unprecedented amounts of regulatory information to the Internet

Longstanding, Systemic Weaknesses : Hillary Clinton\u27s Emails, FOIA\u27s Defects and Affirmative Disclosure

The Hillary Clinton email fiasco demonstrated alarming failures in the procedures of the Freedom of Information Act (FOIA); derelictions in archive integrity and adequacy of search that an internal report identified as “longstanding, systemic weaknesses” in the FOIA. These procedural gaps pose dire consequences for the future of the FOIA, where requesters query incomplete archives and agencies intentionally desert their search obligations. The abandonment of these duties necessitates that the federal government look toward new mechanisms for access to government records and adopt strong affirmative disclosure principles. There has been little scholarship on the twin failures of archive integrity and adequacy of search, but support for increased instances of affirmative disclosure is building. This Article progresses the argument by presenting the country’s enduring, unheralded commitment to these principles and makes recommendations on how to further adopt affirmative disclosure measures

Populism and Transparency: The Political Core of an Administrative Norm

Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe, Latin America, and North America represent a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of transparency in the face of their resistance to open government mandates demonstrates transparency’s important historical connections and conceptual affiliations with populism, in the process illuminating its complicated politics and the difficulty of ensuring legal compliance in a period of renewed populism. Drawing on transparency and populism’s historical development and using Donald Trump’s presidency as a case study, this article reveals the relationship between an administrative norm and a political movement and style, and what democracy’s current state portends for transparency’s future

Populism and Transparency: The Political Core of an Administrative Norm

Transparency has become a preeminent administrative norm with unimpeachable status as a pillar of democracy. But the rise of right-wing populism, reminiscent of older forms of militaristic authoritarianism, threatens transparency’s standing. Recently elected governments in Europe, Latin America, and North America represent a counter-movement away from liberal-democratic institutions that promote the visibility and popular accountability that transparency promises. Contemporary populist movements have not, however, entirely rejected it as an ideal. The populist rebuke of power inequities and its advocacy for popular sovereignty implicitly and sometimes explicitly include a demand for a more visible, accessible state. Populists’ seemingly hypocritical embrace of transparency in the face of their resistance to open government mandates demonstrates transparency’s important historical connections and conceptual affiliations with populism, in the process illuminating its complicated politics and the difficulty of ensuring legal compliance in a period of renewed populism. Drawing on transparency and populism’s historical development and using Donald Trump’s presidency as a case study, this article reveals the relationship between an administrative norm and a political movement and style, and what democracy’s current state portends for transparency’s future

A Conflict of Two Freedoms: The Freedom of Information Act Disclosure of Confidential Settlements in the #METOO Era

This Comment begins by addressing the history and policies behind FOIA, which are mirrored in the open records laws of all fifty states. This portion of the Comment concludes that FOIA’s policies are openness and transparency in the government, specifically to create an informed electorate. The Comment next analyzes the scope and history of confidential settlement agreements in the context of the #MeToo movement. This Comment concludes that confidential settlements in workplace sexual misconduct cases can benefit both the accuser and the accused, but ultimately are aimed to protect the accused from additional claims by other potential victims. Then, this Comment attempts to reconcile the two laws—is there a way to adhere to the polices of openness and confidentiality in one, mutually-agreeable solution? The Comment analyzes the purpose behind the laws in accordance with a government interest analysis format. Ultimately, the Comment determines that in this framework, the confidentiality provisions must necessarily give way to a valid FOIA request

Data Journalism and the Law

While data journalism has been the hot topic of various recent reports, no studies have discussed how the changes in journalistic storytelling may create new legal considerations for journalists. This report aims to help journalists, lawyers, and academics understand the changes taking place in media law as a result of both the growing volume of data in our information economy, and the the seismic shifts occurring within journalism and technology. By examining developments in newsgathering law, the Freedom of Information Act, and laws involved in leak investigations, this research underscores worrisome shifts in the law, as well as gray areas where reform would strengthen the rights of a free press and journalists. In its first part, the report looks at emerging concerns over data journalism projects that could trigger the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. §1030(a)(4)i for scraping, a data collection technique that usually relies on automation—through bots, crawlers, or applications—to extract data from a website. As data collection becomes increasingly important for investigative journalists in particular, legal experts worry about civil and criminal penalties that exist under the statute—which has been described by some First Amendment advocates as unconstitutionally vague. In reviewing the history and case law of the CFAA in relationship to journalism, the research offers practical tips and various legal considerations on the issue. Next, the report discusses troubling trends arising under the Freedom of Information Act (FOIA) in the digital age, as the amount of government information held in databases and government logs grows, and the need for transparency is crucial. Lastly, it reviews data’s impact on laws affecting whistleblowers. In the past decade, we’ve seen more leak prosecutions in the United States than all those combined in the country’s history. This, of course, occurs at a time when there is more information than ever before for whistleblowers to share