Remember President Obama's promise for transparency, participation, and collaboration? As it turns out, transparency, participation, and collaboration are more difficult for federal agencies than it might seem—and the problem extends to agency use of social media.
Last December, the United States Office of Management and Budget released an Open Government Directive, establishing deadlines for action toward greater governmental openness. Included among the directives was a 120-day deadline, imposed on the Administrator of the Office of Information and Regulatory Affairs, to review existing policies that impede federal agency use of technology. The directive emphasized the importance of policies that "realize the potential of technology for open government."
In their efforts to reach greater openness, Federal agencies found themselves butting up against a 1980 law, The Paperwork Reduction Act, which requires all federal agencies to obtain permission from the Office of Management and Budget before information is collected from the public. Approval would be granted only if agencies could prove that the request was necessary, did not duplicate the work of other agencies, and would not be too burdensome on the public.
Agencies worried that use of social media tools—blogs, wikis, discussion boards and so on—might be interpreted as a collection of information. Because the PRA applies to information gathering "regardless of form or format", many agencies logically concluded that an online solicitation for comments or discussions would violate the Act.
Funny thing—it turns out that no matter how well intentioned lawmakers are when they approve some momentous legislation, sooner or later it will stand in the way of something good. The PRA, enacted into law in 1980, was designed to reign in that tyrannical weapon which the government inflicts upon the public from time to time: the information collection form.
The PRA approval process can take months and agencies pointed out that the Act hindered their ability to engage with the public in a timely matter. Waiting months for an approval from the OMB seemed ridiculous in an era of instant feedback made possible by Internet Technology.
“It ended up having a chilling effect when it came to public engagement,” [Vivek Kundra, the national chief information officer] said, adding that agencies would often use the paperwork as an excuse to avoid direct engagement with the public. Now, with the emergence of what he calls a “digital public square” there should be no other option.
Last week, following the directive, the Office of Management and Budget issued a memo, Social Media, Web-Based Interactive Technologies, and the Paperwork Reduction Act. The memo seeks to clarify when the PRA applies to social media use by Federal agencies that are using either a governmental website or a third-party platform. Using existing policies, the OMB attempts to apply old law to new technologies:
There are three categories of data that the OMB excludes from the PRA. The first are "facts or opinions submitted in response to general solicitations of comments," next comes "facts or opinions obtained or solicited at or in connection with public hearings or meetings," and finally, "like items" that are not "information"—in other words, whatever else the OMB thinks goes along with the first two categories.
Using these three excluded categories, the memo provides that use of social media and other web-based interactive technologies do not necessarily trigger the PRA. More specifically, the memo offers the following guidelines:
- A general solicitation for online comments to discussion questions does not count as information gathering. Comparatively, structured surveys posing identical, specific questions are subject to the PRA.
- An invitation for suggestions or comments does not require OMB approval as long as the agency does not require members of the public to identify themselves beyond name and email or mailing address. If an agency requests additional information such as age, race/ethnicity, sex, employment or citizenship status, the PRA applies.
- Interactive meeting tools are considered equivalent to in-person meetings and will not trigger PRA requirements. These tools include "public conference calls, webinars, blogs, discussion boards, forums, message boards, chat sessions, social networks, and online communities." Focus groups, however, are subject to the PRA.
- Wikis generally will not trigger the PRA, unless they're used to collect responses to specific, identical questions.
- "Social media tools that allow the public to rate, rank, vote on, flag, tag, label, or similarly assess the value of ideas, solutions, suggestions, questions, and comments posted by website users" are not subject to PRA.
- Contests allowing members of the public to submit ideas, essays, videos, etc., are not subject to PRA, unless the public must fill out a survey to participate.
The memo opens the door to greater openness through blogs, microblogs, Twitter, Facebook, online discussion boards, video and photo sharing sites, and suggestion boxes. While many Americans embrace the use of social media to promote transparency and collaboration, some people do not believe that social media provides much governmental openness. As Liz, a commenter on The N.Y. Times Caucus Blog points out in response to a post on the memo, "The Obama administration could try for some transparency by oh, I don't know, holding a press conference and actually answering questions."
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