Key Area to Consider in Open Government Planning: Stakeholder Management

SECTION ONE: Importance of Stakeholder Management Issues in Open Government Planning

As many of the previous blog posts indicate, the Open Government directive is a cross-functional, and hence cross-organizational initiative. Notwithstanding this clear need for proactive stakeholder management, the cultural, technological, and political shifts that must take place for Open Government to be successfully implemented in and of themselves merit significant stakeholder management activities to take place. As with any successful change management plan, a baseline set of expectations and perceptions must be collected from all stakeholders. This creates a roadmap that can direct and enable an Agency’s Open Government management team to analyze and address significant gaps or misperceptions in stakeholders’ minds.

The most important part of addressing these misperceptions is properly framing the response. Any such plan must frame the benefits of Open Gov from the perspective of the stakeholder; what utility does this bring my organization, how can this benefit the mission?

Stakeholder management activities must also occur on a frequent and regular basis. In order to create stakeholder buy-in, they must feel that they have had a significant impact on the outcome of Open Government planning and implementation outcomes. In order to achieve this, stakeholders should be engaged before strategy and implementation frameworks are finalized, and given responses to their input as to why it was or was not used. Moreover, they should be informed of Open Government activities on an ongoing basis as development and implementation work takes place, especially in regards to highlighting the successes and returns that an Agency has received through its Open Government efforts.

SECTION TWO: Linkages with the Open Government Directive

The Open Government directive does not explicitly state the need for stakeholder management activities to take place, but it is certainly implied through many of the reporting requirements. For example, the requirement that an Agency explain in detail how it will improve participation will require an Open Government project team to interact with all of the necessary parts of an organization that participative tools or activities may touch. Without doing so, an explanation may be given to OMB that internal stakeholders do not agree on, and hence will not support to put into action.

Furthermore, such discussions may illustrate new or novel ways in which a requirement can be addressed, while providing a public facing tool or dataset that brings utility to citizens. Essentially, stakeholder management activities open the possibility of an Open Government management team finding solutions to complex problems by engaging personnel with differing points of view.

Key Area to Consider in the Open Government Planning: Employee Readiness

Importance of Employee Readiness in Open Government Planning

The Obama Administration’s commitment to creating an unprecedented level of openness in the Federal government will undoubtedly shake up existing organizational cultures, employee values, and most if not all of the ways the government’s business is currently done. Therefore, thoughtful planning and execution of an effective change management process tailored to the organization’s specific needs as well as the level of employee readiness at each government agency would be a critical factor in the successful transition to the Open Government. At the same time, before the change process can even be started, it is important to create a positive environment in the organization where employee engagement is encouraged and valued, needed training and development are provided, and commitment to increasing employee trust by improving on internal and external agency communication and information sharing is clearly demonstrated.

Before increased collaboration with the public and greater transparency in its affairs can be woven into the government’s daily work and interactions with the outside parties, steps need to be taken within the agencies to encourage and empower all of the employees to become more open-minded about the myriad of possibilities for citizen-centric public administration practices. In the beginning, starting to include Open Government tools and techniques into the daily work would require tremendous learning, and, sometimes, continuous learning, on the part of the government employees. Providing adequate training around the new tools and techniques and professional development that would include goals and metrics directly linked to the objectives of the Open Government strategy would help ensure better employee buy-in and, consequently, readiness for a successful transition. The technologies used in making the government more open, collaborative, and participatory would also need to be truly user-friendly and would need to be designed to completely replace old processes and tools. The old processes wouldn’t be phased out overnight; however, careful consideration and mitigation, whenever possible, of the extra time commitment required from the employees to learn about and incorporate new tools and techniques into their work would facilitate a smother change process and would help the government to avoid extra costs associated with the duplication of work.

Linkages with the Open Government Directive

The Open Government Directive calls on the Federal agencies to proactively use modern technology to disseminate useful information to the public on a regular basis rather than waiting for specific requests under FOIA. In addition, within 45 days from the day of the Directive’s release (December 8, 2009), each agency is required to identify and publish online at least three high-value data sets and register those data sets via Data.gov. The Directive asks that the agencies consider publishing the data sets and information that are not currently available to the public. Being familiar with the conservative nature of information handling at the Federal agencies, it is easy to see how decisions associated with such requests would require many levels of approval and, potentially, lengthy back-and-forth debates between various agency offices – mission services, technology, legal, public affairs, and others. To avoid heated discussions every time there is a data call from within or outside of the organization, each agency will need to revisit their standards for openness and information sharing. The Open Government plans that the agencies need to develop within 120 days of the Directive’s release could incorporate ideas for how such standards would need to be changed. The right roadmap for the realization of the Open Government vision built into these plans as well as the right employee mindset, that can only be achieved though preparing employees by all available means and easing the transition for them, would make all the difference in the successful implementation of the Federal Government’s Open Government Initiative – the Government 2.0.

Key Area to Consider in Open Government Planning: Communication Channels

Importance of Communication Channels in Open Government Planning

When we talk about open government an important aspect to consider is the communication channels we will use to create a more open dialogue between Agencies and the public. As new open government and web 2.0 tools are stood up, Agencies have the opportunity to reach out to the public more effectively than ever before. By leveraging existing and new ways of communicating with the public, open government can drive innovation through collaboration.

Some possible communication channels include:

• Blogs
• Twitter
• Wikis
• Facebook
• Flicker

Because open government should enable Agencies to understand citizens’ demand for services more clearly and be more responsive to their needs, engaging a representative from the Office of Public Affairs will help to ensure that the collaboration between the Agency and the public is effective and that the Agency’s key messages are efficiently reaching the correct people. (See previous blog series on Open Government Partner Approach: Office of Public Affairs)

Linkages with the Open Government Directive

Communication channels and the Office of Public Affairs will be vital in meeting many of the reporting and planning requirements of the Open Government Directive.

The Open Government Directive requires that Agencies:

• “[C]reate an Open Government Webpage located at http://www.[agency].gov/open to serve as the gateway for agency activities related to the Open Government Directive."

Additionally, each Agency’s plan is required to include:

• Descriptions of and links to appropriate websites where the public can engage in existing participatory processes of your Agency
• Describe how the Agency will foster the public’s use of information to increase public knowledge and promote public scrutiny of agency services
• Explain in detail how the agency will improve participation, including steps agencies will take to revise its current practices to increase opportunities for public participation in and feedback on the agency’s core mission activities
• Explain in detail how the Agency will improve collaboration, including steps the agency will take to revise its current practices to further cooperation with other Federal and non-Federal governmental agencies, the public, and non-profit and private entities in fulfilling the agency’s core mission activities

Key Areas to Consider in Open Government Planning: Participatory Activities

Another key area to consider with Open Government planning is participatory activities. Participatory activities involve the participation and collaboration of two or more groups to achieve a common objective or goal. These types of activities occur everyday, whether it’s the local police working with citizens to solve a crime, or the federal government working with private industry to solve a public issue. Regardless, participatory activities can only be solved through teamwork.

Given the collaboration required to complete any participatory activity, using available technology to enhance partnerships (particularly when working in multiple locations) can only strengthen the potential results of these activities. For example, the Department of Transportation (DOT) has cited developing a National Rail Plan with collaboration from each mode (a.k.a. division). The development of this plan can be enhanced via Open Government tools that can maintain communication between each mode. At the same time, DOT leadership can use Open Government tools to study other agencies that may have implemented similar plans. In the end, DOT’s Rail Plan and all other participatory activities can be enhanced via
Open Government tools in several key ways:

Encourage all Participants to be Engaged: Participatory activities require involvement from multiple sources in order to achieve a common solution. When Open Government tools are combined with these activities it enables employees to become active participants. How many meetings have you attended where someone sits in the back of the room and never speaks? Open Government tools will give the quiet participant a forum through which they can explore information and provide responses at their leisure. In the end, even the most shy of participants will feel that their voice has been heard.

Active Listening: Active listening is not often discussed when referring to Open Government. However, in many ways it’s exactly what Open Government is all about. Active listening is defined as “a method of listening that involves understanding the content of a message as well as the intent of the sender and the circumstances under which the message is given.” When applied to participatory activities, active listening is vital to developing sustainable solutions. Each Open Government tool strives to present information in a manner that any reader, or “listener”, can fully discern the meaning, intent, and reasoning behind the given statement. Open Government tools allow those involved in participatory activities to read and contribute to open discussions regarding the activity. Ultimately this active participation should lead to sustainable, robust solutions.

Quicker Solutions: How many approvals does your organization need to implement any large-scale plan? How long does it take to get those approvals? Participatory activities are filled with delays, scheduling conflicts, and personal issues that can halt the progress of an organization. However, when the activity engages Open Government tools, these delays can be minimized as each party can access the key information needed to make a decision and give approval or disapprovals immediately in an open environment.

Enhanced Flexibility: Any business professor will tell you that often the success or failure of a company, division, or project will rely on the flexibility of that organization to adjust to change. Participatory activities and their solutions are often changed in some way before reaching a final result. Open Government tools will enhance the ability of an organization to make quicker decision and adjust more efficiently when plans need to change. For example, if OMB creates a new requirement that affects a current participatory activity, the organization can disseminate the new task, offer solutions, and implement those solutions while keeping all involved parties informed. Ultimately, the organization will be more successful due to these tools.

Given the above benefits to participatory activities, organizations should not view OMB’s Open Government Directive as a compliance exercise forced upon them. Rather, this is an opportunity to expand the capabilities of each Agency through the transparency, participation, and collaboration the directive strives to achieve.

Key Area to Consider in Open Government Planning: Pilots and Existing Programs

Importance of Pilots/Existing Programs in Open Government Planning:
The Open Gov Programs “pie piece” falls within the Technology side of the Open Government methodology and focuses on the tenets of transparency, collaboration and participation. It is this area that takes an inventory of any Open Gov related activities and technologies (e.g., social media tools) that are currently being used within the agency. Once an assessment is complete, this area should also encompass lessons learned and best practices, and can even start the planning process in determining the agency’s goals and priorities based on available resources. It is also a good idea to look outside of the agency to see what other agencies are doing particularly well. Existing programs (both internal and external) must be understood in order to leverage any collaboration and reuse opportunities.

Linkages with the Open Government Directive:
At a high level, the Open Government Directive (OGD) asks how the agency is engaging in participatory activities. Specifically:
· The OGD encourages that “agencies should proactively use modern technology to disseminate useful information” and make information available online to the public in open formats. As such, agencies are required within 60 days to create an Open Government Webpage “to serve as the gateway for agency activities related to the [OGD].” An agency’s Open Government webpage will serve as a communication vehicle with the public. Pilots or existing programs, such as the use of social media tools, can also facilitate the use of modern technology for sharing information with the public.
· A new OMB working group is to be established within 45 days “that focuses on transparency, accountability, participation, and collaboration within the Federal Government” to open an ongoing dialogue among agencies to share best practices on innovative ideas and coordinate efforts toward transparency. This working group will be a forum for agencies to communicate with each other about their current innovative initiatives and exchange ideas on how to launch or improve their pilots and programs.
· Finally, “within 120 days, each agency shall develop and publish on it Open Government Webpage and Open Government Plan” that describes in detail how transparency, public participation, and collaboration will be improved. The Open Government Plan is another place for agencies to highlight their pilots or existing programs as well as their plans for supporting and improving transparency, collaboration, and participation with other agencies, the public, and non-profit and private entities.

Key Area to Consider in Open Government Planning:Importance of Tools in Open Government Planning

Tools are a key driver to executing collaboration, participation and transparency initiatives. Using Web 2.0 tools such as social networking, forums, innovative information processing techniques and faster delivery mechanisms will allow for a more dynamic interface with the citizen and ultimately influence the direction of legislation and policies. These tools not only allow for an inexpensive way to collaborate but serve as model for fast adoption and reusability among government agencies. Due to the plethora of social media tools and technologies available, requirements for tools should be determined first, before any tools or vendors are selected. Just because a tool is free does not mean that fair competition should not be ensured when the government selects a technology solution. Thus, focus on the requirements first, and the specific social media tool second. Tools must also consider important organizational culture and internal policies since technology is only part of the open government equation.

Here is a list of possible considerations for tools when planning for Open Government:

• Determining the audience and requirements for use of tools and technologies
• Understanding when technology and social media tools can enable agencies to achieve their Open Government strategic objectives more effectively
• Coordinating business and IT interfaces among the different stakeholders to include executive leadership support
• Addressing gaps with compliance, policies and security governing the use of various web 2.0 technologies
• Leveraging and expanding existing open government initiatives within federal agencies
• Looking beyond collaboration by integrating directly into agency processes instead of separated efforts

Linkages with the Open Government Directive: There are requirements associated with tools including:

• Open Gov plans must "include proposals for new feedback mechanisms, including innovative tools and practices that create new and easier methods for public engagement." This may be achieved by mapping current or potential tools against open government requirements. What is the purpose and effectiveness of existing or new technologies?
• Open Gov plans must "include proposals to use technology platforms to improve collaboration among people within and outside your agency." Once you understand the needs of your organization to improve internal and external collaboration, survey available platforms to assess if they can be leveraged. If not, an enterprise system may need to be developed. Determine if IT infrastructure will support and provide scalability towards the effort, consistent with the "infrastructure" pie piece. Identify system security needs and develop mitigation plans to address associated risks, consistent with the "security" pie piece.

Key Area to Consider in Open Government Planning: Infrastructure

Is your infrastructure ‘Open Government’-friendly? Does your infrastructure support transparency, collaboration, and participation? Can it be called “Gov 2.0”? To answer these questions, first consider how you would answer the following:

· Does your infrastructure make it easy to post content and store data by non-technical users?
· Does your infrastructure make it easy to capture and maintain metadata by employees and citizens?
· Does your data serve as a platform for citizen developed applications?
· Does your infrastructure enable collaboration and easy feedback loops from the public, industry, and other stakeholders?
· Does your infrastructure enable ease of search and navigation across your agency from a single starting point (www.agency.gov)?
· Does your infrastructure support publishing data in open and machine readable formats?
· Do you have good access management that enables access to content by authorized users to the greatest extent possible?


Open Government is very much a cultural change management effort. Clunky technology will be the sand in the gears of this transformation. Gov 2.0 friendly infrastructures need to make it easy for your employees to embrace the culture of transparency, collaboration, and participation. Below are some key areas to address these challenges.


Ease of maintenance of data and content is critical. There is definitely variation in architectures of content management systems that enable or restrict global entry and maintenance of data and metadata. Providing data and content online comes with new responsibilities. Your infrastructure must work for you so that your organization does not become overloaded by these responsibilities.


Practice good service management. Greater online engagement with citizens will ensure that IT shortcomings rise to the surface quickly. Your CIO needs to plan for this new Open Government paradigm and conduct proper demand management, service management, and service portfolio management. For example, if you have a hard time booking an airline ticket on Orbitz, you are likely to go to Travelocity. However, our citizens don’t have this luxury. Government must provide reliable online services to improve the government citizen relationship. Failed services will only undermine citizen trust and confidence.


The Open Government Directive calls for Agencies to include proposals to “use technology platforms to improve collaboration among people within and outside your agency” as well as “new feedback mechanisms, including innovative tools and practices that create easier methods for public engagement.” If you decide to upgrade your web presence or intranet, focus on understanding your organization, practice good service management, and plan to maintain your data for the long haul.

Key Area to Consider in Open Government Planning: Security

Are Facebook, Twitter, and other social media tools “cybersecurity risks”? Of course there are hackers who claim that they can use Web 2.0 tools as gateways into networks. But the reality is that there are many gateways into networks from various avenues. Unfortunately, cybersecurity often becomes an exercise in triple bolting the front door of your house only to realize that the back door has been left wide open. Cybersecurity is a complex art that requires innovative solutions and is best managed by creating a defense in depth. If your cyber risk management approach is solely about hardening the exterior of the network, you may have already lost the fight.

There is a polarity between cybersecurity and Open Government. This polarity can lead to tension between your Information Security Officer and your Social Media champions. If the Information Security Officer has his or her way, the network would be locked down. The nature of IT innovation ensures that new gateways will continue to emerge and cybersecurity management will become increasingly complex. Rather than shut down these new gateways, it is important for an organization to be able to assess and manage emerging risks in a comprehensive manner. The new risks introduced by social media and other Open Government tools cannot be ignored. But they may be mitigated by controls in other areas so that the “shut it down” response can be avoided. It is critical that your Open Government planning address any organizational concerns so that the black cloud of lax cybersecurity does not hang over your Open Government efforts.

When reviewing the Open Government Directive and conducting planning you will need to strike a balance between cybersecurity concerns and open government objectives. There are no specific security requirements in the Directive. However, it requires agencies to include proposals for new collaborative technology platforms and innovative tools for public engagement. The best cybersecurity advice I can offer when developing your proposal is to keep the issues clear during the discussions and review the Guidelines for Secure Use of Social Media issued by the Federal CIO Council. Discussions regarding cybersecurity risks should not introduce publishing problems (i.e. the TSA poorly redacted policy), privacy concerns, workforce productivity issues, or message control challenges except to assess organizational impact and risk. For example, I often hear clients refer to social media tools as “security issues” only to then hear them talk about the reduced productivity that comes about by allowing You Tube. I am by no means suggesting that these other issues should be ignored. However, to properly address cybersecurity risks while conducting Open Government planning, it is important that cybersecurity discussions focus on managing risks to maintaining the confidentiality, integrity, and availability of information and not be clouded by other issues.

Key Area to Consider in Open Government Planning: Internal Directives

Importance of Internal Directives in Open Government Planning: An internal directive can be defined as any type of internal policy instrument for an agency, which can include permanent policies, temporary policies, procedures/guidebooks, and memorandum. For some agencies ‘internal directives’ is used as an umbrella term for all instruments an agency has at its disposal to set internal controls. It will be paramount that internal controls be updated, as appropriate, to allow for the underlying principles of Open Gov to be fully realized throughout the federal government.

The gradual instantiation of Open Gov principles and concepts cannot be realized until internal directives, which vary widely across agencies, are updated to allow for changes in the way government, theoretically, conducts business. The requirements of the Open Government Directive (OGD) now require agencies to leverage citizen knowledge to improve government services – a new frontier. In most agencies, existing policies surrounding Open Gov principles are few and far between, but with the recent release of the OGD this is expected to change. A current list of existing social media policies can be found at http://tinyurl.com/o58r4g.

The speed at which this change can occur will be heavily dependent upon the following:

(1) The political atmosphere and executive buy-in surrounding Open Gov in each agency

(2) The organization, or existence of, an agency Open Gov team/office

(3) Willingness of three critical offices - Office of Policy and Directives (OPD), Office of the Chief Information Officer (OCIO) and Office of General Counsel (OGC) - to work together and create impactful Open Gov policies in a very short timeframe

Open Gov internal directives will involve many different offices, including Public Affairs (OPA), Finance (CFO), Human Resources (HR), Policy (OPD), Information Technology (OCIO), and Legal (OGC), thus the speed at which cutting-edge policies can be released will be heavily dependent upon the Open Gov executive team in place. At DOT, for instance, key organizational executives were prepped for the OGD’s release months in advance, therefore understand its importance and complexity and are better prepared for the creation and approval of new internal directives, allowing for faster implementation of Open Gov at DOT – at least in principle.

Ultimately, the quality and impact of new Open Gov related directives will rely heavily upon two offices – OPD and OCIO. OCIO’s will be a key player and should keep a constant eye on new technologies and IT related innovations, to assist OPD’s in creating and disseminating useful, impactful, and strategic Open Gov policies that will be implemented across their organization, including mission and functional service areas. OPD’s will, ultimately, be responsible for creating the underlying foundation for Open Gov to build of off - the size and strength of which has yet to be determined. Also, OCG will play a key role in the actual writing of new directives and policies, ultimately determining the authority for creating such policies.

Government may not fully understand, nor have the in-house knowledge, to development game-changing Open Gov related internal directives. Agencies, in particular OPD’s and OCIO’s, are encouraged to leverage citizen knowledge and network with industry leaders to better understand Open Gov principles so that policies are better aligned with the ultimate goals of improved transparency, collaboration and participation.

Since policies drive agency activity at all levels, Open Gov internal directives must align with intended outcomes and performance measures to ensure improvement are made in intended areas. These policies must be linked to the performance goals of each agency. The creation of new policies will not be easy, and comes with a bit of uncertainly, risk and new understanding with citizens that will change the face of the federal government. Without new internal policies in place, agencies (and employees) will be hamstrung thus unable to realize the full potential of an open and transparent government.

Linkages with the Open Government Directive: There are several requirements in the Open Government Directive that relate specifically to internal directives, including:

• Open Gov plans must “describe how the Agency will foster the public’s use of information to increase public knowledge and promote public scrutiny of agency services.” The way in which agency employees are to interact with the public will vary greatly across the government, depending on the legal environment, security controls, and the internal policies in place – as determined by OPD’s , OCIO’s and OGC’s.

• Open Gov plans must “explain in detail how the Agency will improve collaboration, including steps the agency will take to revise its current practices to further cooperation with other Federal and non-Federal governmental agencies, the public, and non-profit and private entities in fulfilling the agency’s core mission activities.” The internal policies developed must be based on enabling legislation and agency legal requirements, which must be investigated and eventually implemented via internal directives by OPD’s.

• Open Gov plans must “include any proposed changes to internal management and administrative policies to improve transparency, participation and collaboration.” Internal policy changes required will be vast, and will not happen overnight, but if written in the proper manner will allow for the fundamental tenants of the OGD to be realized.

Key Area to Consider in Open Government Planning: Performance Measurement

SECTION ONE: Importance of Performance Measurement Issues in Open Government Planning

Performance measurement will play a key part in enabling senior leaders to ensure that Open Government activities and processes align with an Agency’s and the Open Government Directive’s strategic visions. Differentiating key performance indicators (KPIs) into two categories, strategic alignment and process measurement, will not only help frame stakeholder analysis, but it will also act as a catalyst for decision makers to develop and approve a set of criteria that can be used to measure strategic alignment. Thus, performance measurement can not only act as an enabler for action, but for analysis, as well.

Additionally, performance measurement will be a key part of an implementation plan due to its ability to alert decision makers to underperforming activities, projects, or tasks. An important distinction must be made between leading and lagging KPIs in the reporting process so these same decision makers can focus their time and effort on projects with leading KPIs that have fallen below an acceptable threshold.

Developing specific leading KPIs, however, will most likely be dependent upon each agency’s unique set of circumstances. Moreover, leading KPIs may often need to be measured through proxies vice directly from an activity or task, which may be a contentious management issue. A more general, and palatable, methodology would be to distinguish critical path activities from non-critical path activities. Referencing the Pareto Principle, the ratio between the two should be somewhere close to 20% and 80%, respectively. The movement of activities and tasks onto the critical path can serve as a leading indicator that an Open Government implementation is facing increasing risks in both financial and time management terms.

Lastly, performance measurement will enable the identification of systemic risk that may exist across organizational functions or offices in regards to Open Government. Although risk and performance are two distinct fields of expertise, they are intimately tied in that underperformance often occurs due to the manifestation of a risk. Since the Open Government concept is cross cutting, any strict compartmentalization of its implementation should lead to KPIs falling below acceptable levels, thus ‘tripping’ or initiating a response plan.

SECTION TWO: Linkages with the Open Government Directive

OMB will be required to create a dashboard that will monitor the progress of Open Government implementation around the Federal government. Agencies will most likely have to report a standardized set of metrics that are established by OMB. This standard set of metrics, however, may not be sufficient for an agency to monitor all of the necessary activities and outcomes that must take place within an agency. Thus, agencies should expect to add to this standard set of OMB metrics in order to create performance frameworks that better suit their needs.

Key Area to Consider in Open Government Planning: Strategy Planning and Development

Importance of Strategic Planning in Open Government Planning: As with the Legal considerations outlined in the previous post, Strategic Planning falls under the Policy side of the Open Government methodology. Federal agency’s Office of Policy Development (OPD) or another strategic planning organization would be the primary groups responsible for thinking through how Open Government could be integrated with the existing organizational strategic plans, performance plans, and departmental priorities and objectives. The new Open Government strategic objectives would need to be developed in alignment with the agency’s mission and strategic goals, and also the new performance measures would need to be added to the existing host of agency performance metrics, making sure the progress toward the Open Government transformation at each agency is tracked and the strategy is appropriately modified as the time goes by.

Linkages with the Open Government Directive: One of the mandates of the Open Government Directive issued by the White House on December 8, 2009 is to develop an Open Government Plan within 120 days (April 8, 2010). It is paramount for the Open Government plan to be based upon the strategic direction that leadership is committed to for the fulfillment of the agency’s mission and goals. Therefore, participation of representatives from the agency’s policy shop in planning the agency’s strategy for Open Government is truly important, as their input would help avoid the development of goals, objectives, or performance measures that are not consistent with where the organization is planning to focus most of its attention and resources in the coming years.

Open Government strategy must also be aligned with agency’s overall strategy for Information Technology. Agency’s IT staff will ultimately be essential in the implementation of the Open Government plan, once it’s approved. The Office of Policy Development would be instrumental in helping bring IT, Operations, and Mission Services strategies and priorities to the attention of the Open Government strategy development working group, emphasizing the importance of integrating all Open Government ideas and initiatives with the existing plans at each organizational level.

Finally, the policy group would help identify key criteria for the development of a good Open Government plan. They are the experts in how the agency prefers to structure its strategic and performance plans. They will help build in appropriate risk factors and risk mitigation strategies into the Open Government plan, aligning it with the acceptable risk threshold at the agency. They will help tie the Open Government strategy with all of the important laws, policies, and procedures the agency operates under. The policy group will serve as an important barometer, helping keep the development of the Open Government strategy in line with all other priorities at the agency.

Key Area to Consider in Open Government Planning: Legal

Importance of Legal Issues in Open Government Planning: There are a host of legal issues that all transparency, participation, and collaboration initiatives will face. These legal constraints have been enormous hurdles for Agencies in engaging the public in decision making. For example, one of the best known hurdles is the Paperwork Reduction Act (PRA). This Act prevents Agencies from asking more than 10 citizens the same question (regardless of if it’s voluntary) with uniform answers, unless Agencies go through a long process with the Office of Management and Budget to get approval of those questions. It is important for Agencies to understand the entire legal environment that will influence their Open Government initiatives from the start to manage downstream risks (i.e., so they don’t discover they are breaking the law down the line). The following is a list of some high level legal issues and the corresponding legislation that will impact Open Government planning efforts. This list is not comprehensive but it should give you an idea of the wide scope of legal issues that must be considered in Open Government planning.

• Government Soliciting Feedback from Citizens: Federal Advisory Committee Act (FACA) 5 USC Section 3, Paperwork Reduction Act (PRA) (44 U.S.C. Chapter 35)
• Records Management: National Archives and Records Administration Act of 1984/ Federal Records Act
• Security: Agency Statute, Computer Fraud and Abuse Act, etc…
• Content Liability, which includes defamation, harassment, copyright, trademark, and negligent misstatement/ fraud: Section 512 of the Digital Millennium Copyright Act (DMCA), and Section 230 of the Communications Decency Act of 1996
• Terms of Service: Anti-Deficiency Act
• Privacy: Freedom of Information Act (FOIA), E-Government Act of 2002, Children’s Online Privacy Protection Act and Privacy Act
• Accessibility: Americans with Disabilities Act/ Section 508 of the Rehabilitation Act of 1973
• Rulemaking: Administrative Procedure Act (APA) of 1946
• Acquisition: Federal Acquisition Regulation (FAR)

This legislation must be considered as policies governing the use of various social media and other Gov 2.0 tools are developed for your Agency including: access, moderation, comment, advertising, records management, open format data, and employee use policies. During this activity, it could be useful for the Office of General Counsel to consider the questions highlighted here.

Linkages with the Open Government Directive: There are several requirements in the Open Government Directive that call specifically for legal understanding, including:

• Open Gov plans must “include any proposed changes to internal management and administrative policies to improve transparency, participation and collaboration”. Internal policies are developed based on an Agency’s enabling legislation and its legal requirements. Thus in order to establish robust policies, the legal environment must be fully understood. (page 10, Open Gov Directive)
• Open Gov plans must “include innovative methods, such as prizes and competitions, to obtain ideas from and to increase collaboration with those in the private sector, non-profit, and academic communities” The FAR makes it very difficult for Agencies to issue prizes. However, the Open Gov Directive tasks Agencies, as well as OMB, to attempt to find innovative ways to issue prizes through competitions while operating within the law. (page 10, Open Gov Directive)
• “Within 120 days, the Administrator of the Office of Information and Regulatory Affairs (OIRA), in consultation with the Federal Chief Information Officer and the Federal Chief Technology Officer, will review existing OMB policies, such as Paperwork Reduction Act guidance and privacy guidance, to identify impediments to open government and to the use of new technologies and, where necessary, issue clarifying guidance and/or propose revisions to such policies, to promote greater openness in government.” (page 6, Open Gov Directive)