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)