Emancipatory infrastructures and
Open Government Partnership at Germany

Open Government and Germany's participation in the Open Government Partnership

Oliver Rack

Abstract: Open government is more than participation and transparency. It is a reaction and a pro-action in the wake of the changing informational balance of power through technology, particularly through the World Wide Web. Open Government creates emancipatory information infrastructures, more evidence in discourse and more commitment and continuity through intersectoral and cross-level collaboration and co-creation. Open Government is part of a systematic basis for public oversight activities in a global and open governance consisting of reporting, evaluation and accountability-mechanisms. The Open Government Partnership provides such a global accountability mechanism to strengthen open government. OGP is thus a key-mechanism and Germany has been participating since 2016. Although Germany actually has good conditions in the OGP mechanism thanks to a long tradition of participation, it falls short of expectations, even in international comparison. Unfortunately, because it could become a role model for open government, particularly in the area of multilevel governance.

For first big picture watch this short statement by  Alberto Alemanno,
Jean Monnet Professor of EU Law at HEC Paris and founder of The Good Lobby

Germany has been participating in the Open Government Partnership since 2016 . Founded in 2011, the global network to promote open government currently includes 75 countries and 104 subnational jurisdictions. The core element is a cyclical reporting system consisting of action plans that evaluate the development and implementation of governments' voluntary commitments to open government reforms along the values of participation  (Civic Participation), transparency (Access to Information) and accountability (Public Accountability) as well as technological innovations to promote these values.

Although participation in the OGP is initiated by the governments, civil society and governments are on an equal footing in co-creative cooperation and the OGP steering committee is made up of equal representation from civil society and governments. Accordingly, many governments participating in the OGP organize multi-stakeholder forums made up of public and civil institutions and individuals. The quality of the co-creative cooperation in the drafting of the action plans and the voluntary commitments contained therein as well as in their implementation is an essential part of the evaluation by the Independent Reporting Mechanism (IRM) of the OGP. And the independent reports are presented by the IRM to representatives of civil society for commenting. The impacts of the voluntary commitments is also increasingly being taken into account in the evaluation. All reporting resources, from the action plans to the various reports and self-assessments as well as the resulting performance indicators, are collected in a database for public research and international comparison as well as for public long-term observation. OGP participants who consistently do not meet the requirements of the OGP must expect to be marked inactive or been excluded.

The OGP is essentially to be understood as a accountability and learning mechanism, such as reporting mechanisms on other policy areas. For example, on sustainability goals, resource consumption, the rule of law and human rights as well as freedom of the press. In my opinion, however, a key difference between the OGP and other reporting systems is that, that as a result the cultural technique and information openness of Open Government is promoted and implemented, which in turn itself represents an elementary foundation for the function and success of all other reporting systems in other policy areas by public oversight activities. OGP is therefore also a key mechanism in a regime of general reform monitoring.

The Genetics of Open Government

Open Government as a term began circulating in academic circles in 1957 with Wallace Parks' publication , “The Open Government Principle: Applying the Right to Know Under the Constitution .” As the title suggests, it was about the informational dimension in the relationship between governments and citizens for good governance. The reason was the expansion of the US government during and after World War II, the resulting bureaucracy and protocols, and the administration's increasing ability to manipulate public opinion. The inspiration probably did not come from freedom of information, which was first drafted in Sweden two hundred years earlier as freedom of the press, including access to information. Rather, it was driven by a modern newspaper industry and its trade associations that were guided by an idealistic idea of an informed citizenry ( Tauberer, 2012 ).

So Open Government was a momentum of emancipation; Participation didn’t really play a role. However, a modern understanding of the interaction between informed citizens and journalism as the 4th power formed a central initial, which led to one of the first  freedom of information acts by President Lyndon B. Johnson in 1966 and which was amended and strengthened in 1974 as a result of the Watergate affair. The political and academic discourse around open government subsided in the following years; a freedom of information law in Germany was not passed at the federal level until 2006.

It was in the mid of the 2000er years that the topic of open government arose again, but this time worldwide and under completely different conditions: globalization has democratized personal computers (at least for the northern hemisphere). And information processing and the World Wide Web has formed information- and network-societies. Also powers and control over information, narratives and their outreach have changed. In a figurative sense, the Moore's law of processor performance implied a something like a “Moore's law of information desire” and the idea of open government advanced from a state-theoretical concept to the logical consequence of taking up and exploiting the possibilities that arise from this new conditions created by technology to develop something constructive.

INFORMATION BOX on socio-technological developments

In order to better understand the tectonics through socio-technological developments, it is worth taking a closer look at the informational level:

Social and political innovations in the digitalized society

The current structures and algorithms (including a number of legal codes) were shaped in favor of a few particular interests in a pyramid of path dependencies that now appear so complex and manifested (see Pistor, 2019 ) and secured in resilient protective spaces that it no longer seems possible for the majority of people to reconquere an "aesthetic" distribution, a "golden ratio" in the distribution of resources, wealth and opportunities in the short to medium term.

At the same time, however, technological innovations in the areas of information processing and networked communication have democratized and opened more or less open spaces for emancipatory information infrastructures for the production, prosumption, distribution, analysis and automation of information, information processing, knowledge and opinion so that traditional powers have shifted - at least a bit.

Despite all the "side effects" on today's information society that such socio-technological changes bring with them, these emancipatory technologies and emancipatory information infrastructures form an important basis for a "level playing field" and open governance with open information access for negotiation and to strive for the creation and development of self-efficacy and self-determination .

Emancipatory technologies and emancipatory information infrastructures must therefore be understood as a "public matter", as a "res publica'' and even as a "public operating system" and must be written into cinstitutional rights. In particular the role that state technologies and information infrastructures as well as officially certified information as open data play. For example, in the context of open governance, open government, open parliament and open justice. Or as the OECD calls it: Open State.

No end to enlightenment

On the one hand, the Internet, WWW and mass-produced hardware pose challenges for societies to intelligently use the consequences of technology for the good; However, they have also created symmetries in communication and democratized the means of production, thereby once again generating a great emancipatory momentum in human development, which has expanded (information- and network-)societies and enabled new forms of participation and governance.
From the opportunities to work together efficiently and inclusively, to base decisions through better access to information, to base one's own data collection and analyzes on evidence and to align self-efficacy with this, to substantiate interests with facts, to better opportunities to oversee actions in the public interest, the technological developments have created potential for emancipatory (information-)infrastructures and social and political innovations. These must be taken up and developed to meaningfully benefit the common good. The basis for this is a systematic openness for open governance.

New transparency

In addition, the massive collection of structured and unstructured information and meta-information as well as (cloud-based and scalable) computing power has increased a dimension of transparency that goes beyond cultural transparency (entities open to other entities) and transparency as an optical material property brings a systemic transparency to light: Possibilities of powerful analysis and visualization reveal signals and patterns in complex relationships that were previously hidden.

New contexts

Furthermore, in intelligent networking, by linking data and information and describing them in metadata and persistent identifiers as well as through computing by language models, image- and audio-analyzes and search algorithms, extended and and allow new contextual relationships more easily than before and these can also be quantified. Time also loses - at least theoretically - its causal effect on the loss of information in digitally stored information and fits better into the contextualizability.

New focus shift

The depth of detail, sampling rate and focus range of linked data and information can also be varied through digitized hierarchy based on the factors mentioned above, which can certainly have an impact on pattern formation and contexts and thus on the creation of meaning.

Overall, data can be organized more easily into information and different areas of knowledge and viewed from different perspectives in at least five-dimensional knowledge graphs to create meaning: three dimensions of context, the dimension of level of detail and the dimension of time - as well as other dimensions of the mathematical derivations .

Emancipatory information infrastructures

These non-cultural forms of transparency and knowledge organization mentioned above should be possible for everyone. This requires the promotion of these emancipatory information infrastructures and technologies for everyone. They represent part of a further emancipation of the sovereign and an individual and provide the basis for objectification, beyond faith and ideology.

Therefore, the enablement of these infrastructures can be interpreted as anchored in fundamental rights (see “State output as an objective dimension of the fundamental right to freedom of information”: “The “generally accessible sources” of Article 5 of the german constitution (Grundgesetz) flow into central storage basins, from here they are transported through narrow channels and locks. In the interest of all fundamental communication rights under Article 5 Paragraph 1 of the constitution, this flow should be as free as possible," Maximilian Petras https://informationsfreiheit.pubpub.org/pub/853kuwbj/release/1)

Cognitive dimension of democracy

Until now, the legal-organizational dimension of decision-making has been the focus of consideration of a form of government - except in philosophy. The experiences of recent years with, for example, the misuse of social media, media economic deviances, misinformation (coupled with spyware) and political behavioural economics are bringing a cognitive dimension of democracy into greater focus. How signifieds, signifiers and empty signifiers are endowed with meaning and contextualized or framed and perceived into meaning has changed significantly. The consideration of the above-mentioned influencing factors on information processing into knowledge as well as the importance of valid data and verified information, especially officially certified or scientifically proven ones, as well as the provenance of information, has therefore become even more important to the state.

The co-creative dimension of open government

Since then, we have no longer just talked about access to information, i.e. documents, as an essential element of open government, but also about open government data, i.e. open government data. And those provided as proactively and machine-readable as possible. Since the power over information was changing anyway, the principles of participation were added. And this particularly in the form of collaborative co-creation, since the WWW and cloud-based tools for collaboration, ideation and knowledge management have opened up completely new possibilities for interaction between governments and civil society. There, digital volunteering, a derivative of civic engagement, also began to emerge. A similar development to that in the area of citizen science, in which collaboration between civil society and science includes a spectrum from simple citizen data collection to joint study design.

This dynamic was pushed from 2005 onwards by a group of activists around the publisher Tim O'Reilly and the NGOs Public.Resource.Org and Sunlight Foundation, who for the first time in 2007 presented a definition of the 8 principles for open government data in the Open Government Working Group formulated in Sebastopol in California. Not only with the aim of transparency, but also to be able to use this data, which is financed from taxpayers' money and can be shared without wear and tear, for business models and the common good. And as a foundation to incorporate civil society competencies and ideas  into the state in the course of the hesitant digitalization of administration. This is intended to improve digital services and strengthen trust in state institutions. So it is a momentum for administrative modernization - including cultural change.
One can imagine that it didn't take long for this to catch on with reformers in the administration, including in Germany. On January 21, 2009, US President Barack Obama published the “Transparency and Open Government” memo as his first official act. A little later, the Code for America initiative was founded, in which software developers in particular were committed to developing solutions for the public sector and calling for an open way of working in the form of open government. A month later, Obama issued the Open Government Directive for his administration.

This development was taken up by civil society and administration at a speed that was remarkable for Germany. In particular, the responsibilities for administrative modernization, public sector innovations and digitalization at the federal government, at the states of North Rhine-Westphalia and Baden-Württemberg. Also from some courageous local governments as well as from the Innovators Club of the Städte- und Gemeindebund (StGB, association for local government) and the multilevel IT Planning Council, of course in a somewhat less binding approach. In 2010, open government officially entered the stage of German administrative modernization for the first time in the „Regierungsprogramm Vernetzte und transparente Verwaltung" (Government Program for Networked and Transparent Administration). The rest is tough German administrative modernization history: the relationship between administrative modernization and digital volunteerism in civil society, essentially organized by the Open Knowledge Foundation Germany e.V. and Wikimedia e.V., is permanently ambivalent and changeable to the point of worn out, at least in some individual cases.

The observational dimension of open government

It is not surprising that governments, even those that consider themselves to be established democracies, primarily want to pick the co-creative fruits of open government and are sometimes uncomfortable with the extensive transparency and accountability requirements of open government, above all with the resulting spaces for self-empowerment by civil society. But open government does not serve à la carte; the underlying principles and modes of operation are too inextricably linked together.

International policy makers and reformists were quick to recall the actual genetics of open government and recognized its potential impact on good governance and commitment under the new conditions of network societies, as well as the constitutional dimension of freedom of information rights.

The guardians of European fundamental values in the Council of Europe began to advocate for open government early on, albeit quietly. And in the wake of major corruption scandals and increasing authoritarian tendencies in countries that are actually democratic, some governments founded the Open Government Partnership in 2011, particularly at the initiative of the governments of the USA and Brazil. In the aftermath of the 2007 financial crisis, the OECD, a master in monitoring government quality, also declared open government a key principle as part of the "Government at a Glance 2009" and from then on intensively advocated open government as good governance. The United Nations, especially as part of its UNDP development program and its statistical office as part of the 2030 Agenda, also began to promote open government and especially open government data.

Not only because they themselves are interested in improved access to information at the entire territorial level for their own monitoring. But because they have recognized how enormously important and helpful the work of civil society organizations around the globe in overseeing government actions and local developments is for their own work and for the continuity of reforms. All the so-called "watchdogs", often supported by Anglo-American philanthropy, together with integrity and constructive media companies and their journalists, now form a strengthened global body of public oversight of the quality of the state, in keeping with the spirit of the 4th power. Using a growing number of different reporting systems, they quantify the ambitions of those responsible in different policy areas, make the findings public and use “naming and fame” to force decision-makers to be committed, careful and keep integrity.

With this perspective, it is not difficult to recognize the importance of open government together with open parliament and open justice as an open state principle and as an elementary basis for an inclusive and data-informed global governance regime in which self-commitments and publicly supervised reporting takes on the function of “soft laws”. Compared legislative legal standards and international agreements, these can be implemented much more quickly and are often designed directly from subject matter expertise. They can also be used to test respective legislations following commitments in the future. The resulting databases of reporting data and indicators can also be used for orientation and risk assessment for international cooperation.

Germany in the Open Government Partnership

The main initial step for the first open government activities in Germany was a delegation trip of German administrative staff from the departments of administrative modernization, organized by the „Interdisziplinäre Studien zu Politik, Recht, Administration und Technologie e.V“ (ISPRAT) (Association for Interdisciplinary Studies on Politics, Law and Administration and Technologie) to the CTO of the White House in  in Washington 2009. At this point, CTOs Aneesh Chopra and Beth Simone Noveck had successfully completed a large-scale participation process on open government there. In 2011, the year the OGP was founded, an open federal-state working group was formed by Germany’s Federal Ministry of the Interior on Open Government and with a resolution from the IT-Planungsrat (IT Planning Council), this working group became the project committee for the steering project „Vernetzte und transparente Verwaltung" (Networked and Transparent Administration) . A little later, german civil society organizations and individuals gathered under the umbrella of the “Open Government Partnership Working Group” to promote Germany’s participation in the OGP. A short time after Germany started participating in the OGP in December 2016, the working group renamed itself what is now known as the “ Open Government Network” (OGN).

Since then, the network has been supporting the federal government in Germany's participation in the OGP and is also generally committed to raising awareness of open government and the OGP, including all administrative levels. The OGN’s activities within Germany's OGP participation include, in particular, the bundling of ideas, interests and comments from civil society in the creation of the National Action Plans (NAP), of which Germany has submitted four to the OGP since 2016. The OGN is also available for co-creative support in the implementation of the voluntary commitments contained therein. However, this is only minimally used by the implementing departments. The federal government does not meet this criterion of the Open Government Partnership. There is also room for process improvement when co-creating action plan designs.

The OGP submits the evaluations of the Independent Reporting Mechanism to the OGN for commenting before they are submitted to the federal government as design and implementation reports and taken into account in the OGP database. The weak involvement of civil society in the past action plans led to the a Co-Creation Brief 2022 by OGP’s IRM to the federal government on how it could improve its performance, which has so far only led to a slight improvement. Germany has also not yet set up a Multi Stakeholder Forum (MFS), like some other countries. Spain in particular has increased its ambitions enormously by installing a MSF and is now one of the role models within the OGP.

The MFS is being replaced as best as possible by the civil society’s Open Government Network. However, the broad level of civic stakeholders in german civil society has not yet been reached. Especially not civil society at the state and local level, where, for example, important legal requirements for transparency, freedom of information, open data and accountability often had to be created and still have to be created.

The coordination, advice and public relations work of the Open Government Network are not funded. In other countries, particularly in the Global South and Eastern Europe, anglo-american philanthropic foundations support civil networks as part of the Open Government Partnership.

Now that anglo-american philanthropy in Europe is increasingly pulling back, as is currently the case with the Open Society Foundation, the capacities of civil society in Europe are being further weakened, although the demands on capacity and expertise that governments expect and civil society place on themselves, steadily increase.

OGP Values for Relevance

https://www.opengovpartnership.org/wp-content/uploads/2019/06/OGPvaluesguidancenote.pdf

OGP Dashboard und Datenbank

https://www.opengovpartnership.org/data-dashboard/

Wallace Parks 1957: The Open Government Principle: Applying the Right to Know Under the Constitution

https://www.worldcat.org/de/title/open-government-principle-applying-the-right-to-know-under-the-constitution/oclc/11781336

The Code of Capital 2019: How the Law Creates Wealth and Inequality, Katharina Pistor

https://press.princeton.edu/books/hardcover/9780691178974/the-code-of-capital

Joshua Tauberer 2012: The U.S. Freedom of Information Act, 

https://opengovdata.io/2014/the-us-freedom-information-act/

Maximilian Petras 2022:„Staatlicher Output als objektive Dimension des Grundrechts auf Informationsfreiheit", https://informationsfreiheit.pubpub.org/pub/853kuwbj/release/1

OECD 2010: Regierung und Verwaltung auf einen Blick 2009

Prozess zur Neubeurteilung des Staats und der Beziehung zwischen Instanzen, Bürgern und Märkten: https://www.oecd-ilibrary.org/docserver/9789264080331-de.pdf?expires=1695191847&id=id&accname=guest&checksum=FB7E815125DEA97E578AAEBEE761222C