What Gary Dickson Believes Open Government could mean for Saskatchewan Residents

In just a few short years, the Open Government movement has gained considerable traction in Canada.  Some of our largest cities including Toronto[1], Edmonton, Vancouver and Ottawa as well as smaller centres such as Nanaimo have announced Open Government initiatives.  British Columbia Premier Christy Clark has declared that ‘open government’ is one of her top three policy initiatives for that province[2].  In March 2011, then Treasury Board President Stockwell Day announced the launch of the federal Government’s Open Data portal[3].  This was described as but one element of a more ambitious Open Government initiative.

Gary Dickson, Saskatchewan Information and Privacy Commissioner

In all cases the emphasis is on a new way of getting information now in the possession or control of government bodies into the hands of the public.  This involves unlocking the extensive databases currently maintained by our public bodies but which hitherto were for the exclusive use of those public bodies.  This is driven by technology but requires a new way of thinking about the relationship between people and their government.  What if we said that much of the government data could be released in raw form to the public?  That kind of innovation would allow many different users, outside of the public body, to combine, match and mash[4] data in ways that public bodies may not have previously considered.  But these could be ways that nonetheless would be of value to citizens and businesses.  This could facilitate new applications and purposes that may have either commercial value or perhaps research value to the non-profit sector.

This kind of initiative would require that we embrace a comprehensive open government initiative.  Such a plan would be part of what is often referred to as Gov. 2.0, a way of providing more effective ways to deliver useful information to people.  Gov. 2.0 would involve the integration of tools including, social networking sites, blogs, RSS feeds and wikis.  This would push information to citizens in a way that is more immediate and useful for them.

Open Government also invites and indeed requires consideration of the statutory right to know already guaranteed by two laws in Saskatchewan.  The Freedom of Information and Protection of Privacy Act [5](FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act [6](LA FOIP) were developed to reflect the model articulated in the Ontario Royal Commission Report[7] in 1980. Open Data will not replace these statutes since it is concerned with how information will be released whereas these statutes are rights based.  These laws allow citizens to make formal access requests concerning records in the possession or control of provincial government institutions.  Unlike Open Data, this includes information that the public body may not proactively disclose for a host of reasons.

With Open Data, there will still be information that must not or may not be released.  Whether personal information of third parties, or cabinet confidences or solicitor-client information, there are mandatory and discretionary exemptions that need to be considered and applied.    FOIP and LA FOIP provide the rules and mechanisms to resolve those kinds of issues and conflicts.  These rules are supported by 28 years of jurisprudence and a large body of decisions and orders from independent oversight bodies at the federal level as well as at the level of provinces and territories.  The definition of government institution for purposes of FOIP captures a long list of provincial ministries, Crown corporations and provincial boards, commissions and agencies.  The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP) captures municipalities, schools, regional health authorities, universities and colleges, library boards as well as other municipally created entities.

Both of these laws however represent a reactive system of disclosure. They contemplate citizens pulling or attempting to pull information important to them for a variety of reasons from their government.

These laws and similar ones in every other province and territory in Canada are all based on a model that is now about 30 years old.  Thirty years ago would have been before the Internet, powerful search engines, social networks and email.  These statutes antedate the shared service model for service delivery and the digitization of almost everything done by organizations in both the public sector and the private sector.

Open Government can be seen as the expansion of what was formerly described as the routine disclosure and active dissemination of government information  (referred to by the acronym AD-RD)[8].  Routine disclosure meant the routine release of certain records that are often the subject of formal access requests but which are made available informally.  Active dissemination meant the periodic release of government records or information in the absence of a formal access request[9].  Open Government could be described as active dissemination and routine disclosure writ large.

When Canada’s federal, provincial and territorial Information and Privacy Commissioners met in  September 2010,  they issued a unanimous resolution that endorsed open government[10].  These oversight officials urged their respective governments to routinely identify data sources and proactively disclose information in open, accessible and reusable formats.  Public access to such information should be provided free or at minimal cost.  The resolution also cautioned that governments must give due consideration to privacy, confidentiality, security, Crown copyright and other applicable laws.

This plan would also mirror Open Government initiatives in Mexico, U.K., the U.S. federal government, Australia, and New Zealand.

There are of course issues that will need to be resolved as part of the Open Data, Open Government initiative.  This includes the terms of reference for those who go to Open Data websites and the details of proactive disclosure schemes.  A good example is the recent case of BC Ferries. This public body adopted a policy whereby all responses to formal access to information requests would be published on its website and made available to the applicant simultaneously.   A civil society organization complained that this simultaneous publication would actually be prejudicial.  The reasoning was that the media would lose the advantage that accrues to media organizations that spend a good deal of money in fees, and reporters’ time if they couldn’t publish their story before the information entered the public domain.  BC Ferries countered that they were simply modeling open government.  The British Columbia Information and Privacy Commissioner, Elizabeth Denham, found that the simultaneous disclosure practice impaired the information gathering function of the media and ultimately would have a negative impact on the ability of citizens to hold government accountable.[11]  She recommended that public bodies build in a 24 hour delay before publishing the access to information results on line.

One does not need to be a futurist to anticipate that the momentum associated with Open Government will eventually require that much more information will become available to citizens in a format that is convenient to them, in a timely way and at no cost.   What’s more, at a time of a decline in citizen engagement, Open Government may offer an opportunity to stimulate such engagement by individuals.  The only question may be whether Saskatchewan will lead or follow the Open Government movement.

Gary Dickson, Saskatchewan Information and Privacy Commissioner

[4] Mash or mashup refers to a web based application that can combine different kinds of data to create a new  service.  See also, David G. Robinson, Harlan Yu, Edward W. Felten Enabling Innovation for Civic Engagement, Open Government – Collaboration, Transparency, and Participation in Practice, edited by Daniel Lathrop and Laurel Ruma, O’Reilly, 2010, p.  86.

[5] S.S. 1990-91, c. F-22.01

[6] S.S. 1990-91, c. L-27.1

[7]  The Report of the Commission on Freedom of Information and Individual Privacy, Queen’s Printer of Ontario, 1980

[8] Tom Mitchinson and Mark Radner, Promoting Transparency Through the Electronic Dissemination of Information, E-Government Reconsidered: Renewal of Governance for the Knowledge Age, edited by Lynn Oliver and Larry Sanders, Canadian Plains Research Centre, University of Regina, 2004, p. 92.

[9] Ibid., 92