A big win for open government: Sunlight gets U.S. to release indexes of federal data by Matthew Rumsey and Sean Vitka and John Wonderlich.
From the post:
For the first time, the United States government has agreed to release what we believe to be the largest index of government data in the world.
On Friday, the Sunlight Foundation received a letter from the Office of Management and Budget (OMB) outlining how they plan to comply with our FOIA request from December 2013 for agency Enterprise Data Inventories. EDIs are comprehensive lists of a federal agency’s information holdings, providing an unprecedented view into data held internally across the government. Our FOIA request was submitted 14 months ago.
These lists of the government’s data were not public, however, until now. More than a year after Sunlight’s FOIA request and with a lawsuit initiated by Sunlight about to be filed, we’re finally going to see what data the government holds.
Since 2013, federal agencies have been required to construct a list of all of their major data sets, subject only to a few exceptions detailed in President Obama’s executive order as well as some information exempted from disclosure under the FOIA.
Many kudos to the Sunlight Foundation!
As to using the word “win,” do we need to wait and see what Enterprise Data Inventories are in fact produced?
I say that because the executive order of President Obama that is cited in the post, provides these exemptions from disclosure:
4 (d) (d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.
Will that be taken as an excuse to not list the data collections at all?
Or, will the NSA say:
one (1) collection of telephone metadata, timeSpan: 4 (d) exempt, size: 4 (d) exempt, metadataStructure: 4 (d) exempt source: 4 (d) exempt
Do they mean internal NSA phone logs? Do they mean some other source?
Or will they simply not list telephone metadata at all?
What’s exempt under FOAI? (From FOIA.gov):
Not all records can be released under the FOIA. Congress established certain categories of information that are not required to be released in response to a FOIA request because release would be harmful to governmental or private interests. These categories are called "exemptions" from disclosures. Still, even if an exemption applies, agencies may use their discretion to release information when there is no foreseeable harm in doing so and disclosure is not otherwise prohibited by law. There are nine categories of exempt information and each is described below.
Exemption 1: Information that is classified to protect national security. The material must be properly classified under an Executive Order.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.
Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.
Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:
- Attorney-Work Product Privilege
- Attorney-Client Privilege
- Deliberative Process Privilege
- Presidential Communications Privilege
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur. Law enforcement information is exempt if it:
- 7(A). Could reasonably be expected to interfere with enforcement proceedings
- 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
- 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
- 7(D). Could reasonably be expected to disclose the identity of a confidential source
- 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions
- 7(F). Could reasonably be expected to endanger the life or physical safety of any individual
Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.
And the exclusions:
Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions.” The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within an exclusion are not subject to the requirements of the FOIA. So, when an office or agency responds to your request, it will limit its response to those records that are subject to the FOIA.
You can spot the truck sized holes as well as I can that may prevent disclosure.
One analytic challenge upon the release of the Enterprise Data Inventories will be to determine what is present and what is missing but should be present. Another will be to assist the Sunlight Foundation in its pursuit of additional FOIAs to obtain data listed but not available. Perhaps I should call this an important victory although of a battle and not the long term war for government transparency.