Many people will likely remember (or still indulge in) Mad Magazine’s Spy vs. Spy, two almost identical Cold War creatures, except that one was dressed in all white and the other in all black, who spent most of their time trying to outwit the other, usually with absurd consequences.
Today, in the real world of transparency politics, there is a real Spy vs. Spy drama playing out in what might be called, if it were a cartoon strip, Open Government vs. Open Government. These political creatures are not quite as identical as the spies were, but the consequences of their face-off could be equally absurd: In fact, they could kill the entire movement for government transparency.
On the one side is what is often called the Freedom of Information movement, which is concerned with processes, such as open meetings, and disclosures through public records of the actions of government officials. It is most powerful on the state and local level, and the public records and public meetings laws that enshrine it are what newspapers such as The Lakeland Times and the Northwoods River News use to ensure and demand accountability.
Put another way, the freedom of information movement — with its requirements for open meetings and the release of public records — lets the public see just how officials are making decisions on a daily basis.
On the other side of the coin is what is often called the open government data movement. Its core idea is the reams of data the government collects — from census statistics to government contracts to agency spending to publicly funded scientific studies and agency consumer reports — should be open to the public to peruse and use as the public sees fit.
This growing movement has led to the creation of a multitude of federal and state web portals to such data. For example, Data.gov, the federal government’s open data site, says it aims to make government more accountable by increasing citizen participation and informed decision making. Federal law requires federal agencies to publish their information on the website as open data, using standardized, machine-readable data formats, with the metadata included in the Data.gov catalog, the data site points out.
At first blush, there would seem to be no conflict between these two wings of the transparency movement. And, not surprisingly, activists in one arena are generally supportive politically of those in the other arena. After all, one is hardly likely to support public decision making and then oppose publishing the statistical consequences of those decisions.
In recent years, though, tensions have arisen between the two sides, and observers of the overall transparency movement have begun to wonder whether the freedom of information side and the open data side are complementary or competing forces, and, if the latter is the case, what that means politically for an overall transparency movement that has thrived largely by being non-ideological beyond a commitment to openness.
Let’s take a look at these questions, and how open government vs. open government is playing out right here in Wisconsin.
The conflict at its core
Distinctions and then tensions between freedom of information efforts and open government data efforts have been around for a while, but one of the first major papers to quantify their significance was published in the UCLA Law Review in 2012 by Harlan Yu, a doctoral candidate in computer science and an affiliate of the Center for Information Technology Policy at Princeton University, and David G. Robinson, a visiting fellow of the Information Society Project at Yale Law School.
As Yu and Robinson observed, the early days of the open government movement focused on transparent processes, not transparent data.
“The phrase (‘open government’) was first used in the 1950s in the debates leading up to passage of the Freedom of Information Act,” Yu and Robinson wrote. “But over the last few years, that traditional meaning has blurred, and has shifted toward open technology.”
But, the authors wrote, while open technologies involve sharing data over the Internet, all kinds of governments can use them for all kinds of reasons.
“Recent public policies have stretched the label ‘open government’ to reach any public sector use of these technologies,” they wrote. “Thus, the term ‘open government data’ might refer to data that makes the government as a whole more open (that is, more publicly accountable), or instead might refer to politically neutral public sector disclosures that are easy to reuse, even if they have nothing to do with public accountability.”
The bottom line is, the authors wrote, governments that open up reams of data online are not necessarily “open.”
“Today, a regime can call itself ‘open’ if it builds the right kind of website — even if it does not become more accountable or transparent,” they wrote. “This shift in vocabulary makes it harder for policymakers and activists to articulate clear priorities and make cogent demands.”
All that made for a new ambiguity in open government, the authors wrote.
“Technology can make public information more adaptable, empowering third parties to contribute in exciting new ways across many aspects of civic life,” they wrote. “But technological enhancements alone will not resolve debates about the best priorities for civic life, and enhancements to government services are no substitute for public accountability.”
Since 2012, concerns within the open government movement have only grown, with many who prioritize the transparency of decision-making processes concerned that the ascendance of open data advocates allows governments to proclaim themselves as open when they are in fact quite closed.
That is to say, governments can conceal secretive decision-making processes by simply dumping mountains of data on the Internet — data that many times only experts aligned with specific ideologies can decipher or spin.
Michael Canares, an open-data advocate who believes the interests of both camps can be reconciled, has written on the Web Foundation’s Open Data Labs website that he heard such concerns raised at an international governance conference in 2014.
“At the time, Freedom of Information (FOI) advocates told us that the open data movement was highjacking the freedom of information agenda by giving governments a new outlet for transparency, relegating FOI requests to the bottom of the priority list,” Canares wrote. “They raised concerns that governments might just focus on releasing large amounts of data the average person could not understand or use instead of responding to citizens’ questions.”
And that’s exactly the concerns raised in 2018 in The Conversation by Suzanne J. Piotrowski, an associate professor of public affairs and administration at Rutgers, Alex Ingrams, an assistant professor at Tilburg University, and Daniel Berliner, an assistant professor of political science at the London School of Economics and Political Science.
“Over the last 50 years, Freedom of Information — or FOI — laws have been one of the most useful methods for citizens to learn what government is doing,” the authors wrote. “These state and federal laws give people the power to request, and get, government documents. From everyday citizens to journalists, FOI laws have proven a powerful way to uncover the often-secret workings of government.”
And, the authors asserted, while FOI laws have always faced many challenges, including resistance, evasion, and poor implementation and enforcement, the last decade has brought a different kind of challenge in the form of a new approach to transparency: the open government, or open data, movement.
“Despite the fact that it shares a fundamental goal with the more established FOI movement — government transparency — the open government movement threatens to harm FOI by cornering the already limited public and private funding and government staffing available for transparency work,” they wrote.
First, the authors contended, resources — both money and political attention — are inherently scarce.
“Government officials now have to divide their attention between FOI and other open government initiatives,” they wrote. “And funders now have to divide their financial resources between FOI and other open government initiatives.”
Second, they contended, the open government reform movement as well as the FOI movement have long depended on nonprofit advocacy groups such as the National Freedom of Information Coalition and the Sunlight Foundation to obtain and disseminate government information.
“This means that the financial stability of those nonprofit groups is crucial,” they wrote. “But their efforts, as they grow, may each only get a shrinking portion of the total amount of grant money available.”
For example, they pointed to Freedominfo.org, a website for gathering and comparing information on FOI laws around the world that had to suspend its operations in 2017 due to resources drying up.
In addition, the authors wrote, the open data movement allows governments to claim credit for politically convenient reforms such as online data portals, while their actual open government agenda may create a false sense of transparency. That’s because, they wrote, there’s a lot of government data that isn’t on those portals.
Other observers say that many governments declare public records requests redundant, given the amount of information available online, simply telling the citizenry the data is online for them to find, if only they will go looking for the digital Waldos, while avoiding specific answers to specific questions posed in specific records requests.
And, they say, the open data movement is so concerned with opening up data portals that it neglects to answer another fundamental question: Why is the government collecting so much data in the first place?
Open data movement advocates disagree, of course. While open data efforts do take sizable resources, they argue, they should also reduce FOIA requests and free up those resources while not damaging the fundamentals of the FOI movement.
And, they argue, the information that is generated and collected by the public sector allows the larger body politic to access and use the information — not just individuals making specific requests — which enables many more people to take part in public sector activities and to participate in public decision-making, while giving both public and private stakeholders, including commercial developers, the information needed to develop new added-value services and products.
Comparing Obama, Walker
Three examples of the tensions between the freedom of information movement and the open data movement stand out: The Obama administration nationally, and, in Wisconsin, the administration of former Gov. Scott Walker and the Wisconsin Economic Development Corporation.
On the one hand, President Barack Obama was hailed as a pioneer in the open data movement. In 2013, for example, Obama signed an executive order that made open and machine-readable data the new default for government information, with the president saying that making such data readily available and useful was the core of his promise of a more efficient and transparent government.
Then, too, in 2009, Data.gov went live and was the first platform to deliver federal data to citizens, academics, and anyone else seeking insights from government information, Jason Shueh wrote in Government Technology
According to the federal website, Data.gov has grown to more than 200,000 datasets from hundreds of data sources including federal agencies, states, counties, and cities and has set the example for other open government data catalogs, with hundreds of other countries, states, and cities around the world launching their own open government data sites since 2009.
“One of the things we’re doing to fuel more private sector innovation and discovery is to make vast amounts of America’s data open and easy to access for the first time in history,” Obama said in 2013. “ … And we’re making it easier for people to find the data and use it, so that entrepreneurs can build products and services we haven’t even imagined yet.”
On the other hand, Obama was vilified during his White House years for his aggressive resistance to freedom of information requests and laws.
In 2011, the Associated Press reported, the Obama administration “took action on fewer requests for federal records from citizens, journalists, companies and others over the previous 12 months even as significantly more people asked for information.”
The AP analysis showed an increase of 41,000 FOIA requests over the previous year, to 544,360 requests at the 35 largest agencies. However, the AP reported, the administration responded to nearly 12,400 fewer requests.
“The administration refused to release any sought-after materials in more than 1-in-3 information requests, including cases when it couldn’t find records, a person refused to pay for copies or the request was determined to be improper under the law,” the AP stated.
By 2015, the Obama administration had set a new record for failing to fulfill FOIA requests, while under Obama the number of FOIA lawsuits in federal courts reached record highs. The administration was also criticized for cracking down on leakers and whistleblowers and for using the Espionage Act a record five times to prosecute government officials suspected of leaking classified information.
Also, as far back as 2010, the State Department inspector general observed that state department employees had independently raised concerns that former secretary of state Hillary Clinton’s private email usage was interfering with federal record-keeping laws.
While Obama was a Democrat, the Republican administration of Scott Walker compiled a similar track record.
Walker, too, was progressive when it came to open data. In 2011, for example, as part of his state budget, the site OpenBook Wisconsin was legislated, allowing citizens to track the amount of money the state spends.
“There have been more than 25 million entries showing payments made for purchasing goods or services, travel and vendor payments for state agencies, the legislature, the courts and the University of Wisconsin System dating back to 2008,” the website states.
As of 2017, the data included fringe payment data, employee salary, purchase orders, and contracts that state agencies have with vendors.
“OpenBook Wisconsin brings a historic level of openness and transparency to state government, and this website gives taxpayers an unprecedented level of access to the state’s finances,” Walker said.
But, in a historic but unsuccessful effort, the Walker administration collaborated with Republican lawmakers to include in the state budget measures that would have effectively killed the state’s open records law.
And, during his re-election campaign in 2014, Walker would not make a judgment about whether the Legislature should abide by the open records law or be subject to the meetings law, while citing the biggest open government problem to be the inability of the public to review the state’s finances online — in other words, open data.
The state’s economic development corporation, created in 2011 under Walker, is another example of the sharp tensions brewing between open government and open data.
Again, the trend is to open up the data but shut down access to the decision-making processes.
Just last month, for example, a report by the Wisconsin Public Interest Research Group and Frontier Group gave the WEDC the nation’s second-highest ranking in the nation for economic development-related transparency and online access to information. In 2012, the same report blasted the WEDC for its lack of transparency.
According to the report, a review of economic development subsidy reporting in all 50 states found that a majority of states still fail to meet minimum standards of online transparency, but Wisconsin was fast improving.
“Three states — Wisconsin, Connecticut and Mississippi — are ‘advancing’ states in economic development subsidy transparency,” the report stated. “All three states include itemized grant payments to companies in their online spending portals, a transparency measure both Mississippi and Connecticut require by state statute. Both Wisconsin and Connecticut incorporate their primary economic development agency’s grant payments directly into the state’s general expenditure checkbook and are two of only three states to publish an annual report detailing statewide economic development grant spending.”
But the agency has been criticized for the secrecy in which it has operated. In 2015 and 2016, two Democratic members sought records about 28 economic development awards for more than $126 million after the agency said it could not locate staff underwriting documentation. The records’ requests went unfulfilled for nearly a year.
Perhaps most egregious, the WEDC’s final contract with Foxconn was voted on and approved in closed session. That vote came despite a plea for transparency by Democratic lawmakers on the state’s Joint Finance Committee.
“Gov. Walker and Legislative Republicans are committing state taxpayers to $3 billion in corporate subsidies while taking money away from classrooms, roads and health care for decades,” said Senate Democratic leader Jennifer Shilling (D-La Crosse). “The lack of transparency throughout this process shows there is a higher risk to taxpayers and communities than Gov. Walker and Republican lawmakers are willing to admit. Given Foxconn’s concerning track record, we need more openness and transparency from Gov. Walker’s administration before committing families to years of economic costs and liabilities.”
Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.