Last week, I had the honour of being a panelist at the 2012 BC Info Summit, organized by the BC Freedom of Information and Privacy Association. The event was, from my perspective and from all accounts, a great success.
My panel was on FOI under Government 2.0. It followed in the wake of an earlier panel that focused on BC Open Data initiative – the proactive publishing of government data sets. Open Data is described as a means of facilitating transparency and a way of involving non-governmental groups and the private sector in the exploitation of information (which is regarded as a resource).
I am generally supportive of the Open Data initiative. The principle that government data belongs to the public and should be accessible without access brokering is important, and the data sets that are emerging are useful to me as a researcher, educator, and citizen.
Open data is neither synonymous with nor an alternative to a meaningful ATI/FOI regime backed by a strong legal framework. While both open data and ATI/FOI mechanisms are ostensibly intended to facilitate transparency (and, by extension, informed participatory democracy), they differ fundamentally in at least two ways.
First, in terms of the location of agency: These pathways to information differ in terms of who has the power to initiate the process, and who is in the position of responding. ATI/FOI mechanisms provide members of the public with the legal means to initiate a process that, if successful, can lead to the release of government records. The best mechanisms go a step further and support the ‘quasi-constitutional’ right to know by building the means to compel the release of records into the law – through public interest override provisions and order-making powers for ombudspersons, for example. A strong ATI/FOI regime means that citizens do not have to be contented to wait for information to be proactively released. This is particularly important because, rhetoric about accountability and open government notwithstanding, all governments have a vested interest in keeping politically contentious information under wraps, and an orientation towards secrecy is a natural feature of bureaucracy. As a rule, the data most likely to be proactively released by a given department or agency is unlikely to be embarrassing, contentious, or indicative of misconduct. This should surprise no-one.
Second, in terms of the qualitative nature of the information released: The proliferation of open data portals, applications, and initiatives reflects the ongoing digitalization of governance. The emergence of the ‘database state’ has supplemented, but not replaced, the wide range of texts that circulate within and between government agencies – memos, emails, briefing notes, media lines, reports, Q&A documents, budget outlines, draft speeches, meeting minutes, memorandums of understanding, etc. These texts can be accessed through ATI/FOI mechanisms but are never subject to systematic proactive release. Following what Walby and I refer to as a ‘textual trail’ can allow us to understand the internal workings of agencies and the social organization of government practices. It can shed light on who is speaking, about what, to whom, when, and for what purpose. In some cases, it can reveal the dirty backstage politics that are hidden behind a polished image carefully prepared for public consumption.
It is important to note that the proactive release of data by governments is always partial. Data sets, which are increasingly regarded as important sources of information for investigative journalists, are not always made available to the public. Unreleased data sets can be accessed through ATI/FOI mechanisms. This is the focus of Jim Rankin’s excellent chapter in Brokering Access.
My Info Summit talk was based on the idea that Open Data and ATI/FOI are on diverging paths.
On the one hand, we are seeing the emergence of more – and more sophisticated – data sets proactively released by governments who frame this practice as an exercise in transparency. These data sets are made available in ‘raw’ form or, more often, through the medium of a software application designed to make them useful. Delegates at the Info Summit described some fascinating and innovative smartphone apps based on proactively released government data. This is a trend worth supporting.
On the other hand, though, ATI/FOI mechanisms remain comparatively behind-the-times. Law reform in this area is difficult, politically contentious, and not as easy for governments to package for purposes of public relations. The Canadian Access to Information Act is a living fossil long overdue for a complete overhaul. Delays are systemic and requests (at the federal and provincial levels) are often subject to exemptions or quasi-exemptions. The BC FIPA recently reported on an alarming trend in the rates of ‘no records’ results in the province.
What are the implications of these trends? Two stand out.
- The growth of open data portals, proactive releases, and the trend towards publishing previously-released ATI/FOI packages allow governments to point to concrete steps being taken to facilitate transparency and accountability. This may provide a useful diversion from the problems with ATI/FOI laws, policies, and practices. Stanley Tromp articulates this well:
The dilemma is the contrast between two options: The first is governments’ hot new fad of voluntarily posting online data sets of information as well its use of more social media such as Twitter and Facebook. The second is the urgent need for a more effective freedom of information law, which is a statute that gives every citizen the legal right to compel the state to release records.
- The technological mediation of access through open data initiatives – which require computers, smart phones, and the savvy to use them – may hinder the accessibility of access. Prisoners, homeless persons, and members of other marginalized groups already encounter structural barriers when it comes to exercising their ‘right to know’. If the current trend towards open data and online access continues, these groups will be doubly disadvantaged.
The answer to these problems is not to be found in disparaging open data initiatives. We need to continue to foster the proactive release of government records and data, and to make use of this information. But we also need to ensure that governments are not able to point to this trend as a substitute for ATI/FOI law reform. We also need to ensure that the convergence of government data and emerging technologies does not contribute to the gulf between the ‘haves’ and ‘have nots’ of the means of access.
In terms of concrete actions, I would like to see provincial governments and the Government of Canada invest in the modernization of ATI/FOI laws and in initiatives designed to make our access regimes more accessible (and inviting!) to citizens regardless of age, class, status, or resources.
For more on the ATI/FOI and Government 2.0, I recommend Stanley Tromp’s recent pair of articles for The Tyee:
Open Government? The Dangerous Distraction of Faux Transparency
Three Additions to My Open Government Plea