Motivations: OGC’s primary mission is to provide legal opinions, advice, and services with respect to all agency and departmental programs and activities. OGC’s are charged with ensuring compliance with all federal laws, statutes, and OMB guidance in all Agency activities. They keep the rest of us out of trouble and handle disputes with agency decisions as they emerge.
Approach: OGC’s must survey and interpret a host of different information sources to develop a legal opinion on any new government effort, including open government programs. Legal Counsel will review Agency statutes, federal laws, OMB guidance and directives, OMB circulars, and internal Agency policies to advise the client on actions that are legal, illegal, and those that may need slight modification to transfer between the two. This activity can be quite time consuming, especially in areas where substantial case law does not exist (i.e. the questions being asked are new).
When standing up an open government tool, OGC’s will be particularly concerned with the following questions:
- What is your authority for creating this tool or program?
- Are there any statutory constraints or enablers that impact the Agency’s use of open government tools, including security protections?
- Will the tool be collecting information from the public, and if so, will it violate the Paperwork Reduction Act (PRA)?
- Are you seeking consensus advice from the public, and if so, will it trigger the Federal Advisory Committee Act (FACA)?
- Are your tools 508 compliant and do they meet the requirements of all accessibility laws?
- Is the Agency okay with the tools “terms of service”, if it is an established tool?
- Does the program meet all privacy regulations and is a privacy impact assessment (PIA) required?
- If an interaction tool is desired, what should the comment policy say? (This policy details the legal protections for the service provider (aka federal government) with regards to the user generated content.)
- If access is restricted, what is the basis for restricting access and should there be an access policy?
- Is the content on the tool considered a “federal record” and if so, should a disposition schedule be developed?
Partner’s Bottom Line: In order to implement an open government tool that considers the answers to each of these questions, OGC’s should:
- Work alongside the strategists and program developers to understand the purpose of the effort. This will enable them to advise the effort in real-time and prevent most legal issues from emerging down the line, which could slow or completely halt all efforts.
- Be open. Open Government is a new application of several outdated laws (NARA, PRA, FACA, etc…) and OGC’s across the federal government are sharing legal opinions that are flexible but still operate within the boundaries of the law.
- "Approach the tools and issues with an eye to analyzing and managing the actual risk. Too many projects get stalled on unlikely what-if scenarios. Ask, what is the real risk? What is the likelihood of it occurring? Recognizing that some risks may not be tenable, the benefit of openness needs to be prominent in the equation." (Thanks to Gwynne for contributing)