Strengthen Open Government With Laws, Not Just Policies
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Strengthen Open Government With Laws, Not Just Policies

Policies can easily be ignored or discarded. The principle of open government deserves better.

Kathleen Wynne in 2014.

Policy isn’t law. In these slightly euphoric times when all orders of Canadian government are celebrating their commitments to openness, open government, and open data, we need to remember this fact: policy is not law. If our federal and provincial governments should change in the next elections, the open data policies that they’ve created could go right out the window.

Since Premier Wynne took office, having an open government has been a loud and consistent commitment. To this end, one initiative launched by the government in 2014 was to “open” its mandate letters. Mandate letters are letters from the Premier to each of the Ministers, defining their goals and priorities for the term of government—they are the ministries’ “marching orders” from the Premier, if you will.

Making these letters public may not sound like a big deal, but to those inside of government, it signalled a serious shift. Under our Westminster political system, ministers are held accountable for everything that happens within their ministry, so this openness increases the public accountability level for ministers—it puts their job more publicly on the line.

As Frank D’Onofrio, Public Servant in Residence at Ryerson University and Ex-Deputy Minister and CEO of ServiceOntario, explains: “When those mandate letters used to be sent around, they were very exclusive in terms of who could see them, maybe direct reports of the minister, but they were essentially confidential.” The Trudeau government has since followed suit, making federal mandate letters open as well.

As someone outside of government, it’s hard to believe these letters weren’t public in the first place. How are we to keep track of and on top of government if we don’t even know what specific work they’re prioritizing? This a good reminder that we’re not at par yet. One could argue that government should by definition be open—yet we’re pulling uphill to get these kinds of basics shared.

Having access to the mid-term mandate letter for Ontario’s new digital government team, released last week, provides one new tangible benefit to the civic tech community: it can better organize its efforts to align and partner with the province on priority digital projects as named in the letter—health, education, public engagement, online service delivery, and supporting business.

Meanwhile, in Toronto and around the world, the emerging smart city movement is levelling new challenges at openness in city government. In the name of being a smart city, decisions that will have a lasting impact on openness are being made under the guise of innovation, without adequate oversight from residents.

Smart Cities

The basic idea of a smart city is a municipality that uses data and information to work better. Teresa Scassa, Canada Research Chair in Information Law at the University of Ottawa, recounts a smart city story from Ottawa. In 2012, the city was launching its real-time GPS data system for the Ottawa public transportation system, OC Transpo. It’s the same type of data system that the TTC uses and releases open data from—data that enables apps such as RocketMan to tell you when the next streetcar will arrive at your stop.

When this new GPS technology was being implemented in Ottawa, both citizens and Google were pushing for the GPS data to be open so it could be used for civic and business applications. But the transit commission pushed back, in clear conflict with the City’s open data policy, and spoke of its desire to monetize the data rather than release it.

In the end, the data was made open. But was that just a lucky alignment of forces where the open data community was well-organized and present enough to keep the pressure on the government to open the data? What impact did it have that Google was also at the door, looking to build the data out into its services?

As of now, there is no protection to ensure that any data created, purchased, or used by government will also be made open—there are no laws to this effect. Few people appear to be thinking much about data ownership in our cities.

This applies to all kinds of data—traffic data, water data, hydro data—any service or piece of infrastructure that you use creates data trails. As Scassa explains, there is a trend towards governments relying on the private sector for data, whether to collect, license, or process it. “All the talk about open government data will not do much good if the data on which the government relies is not government data.”

Switch jurisdictions and consider one of the highest-profile federal open data court cases, Canada Post vs. Geolytica. From 2012 to 2016, Canada Post was involved in a lawsuit with a small company called Geolytica that was, through the use of its geocoder tools, essentially crowdsourcing postal code information. Canada Post sued, claiming the company was infringing on Canada Post’s copyright—it declared, and still does, that it holds the copyright for Canadian postal codes. The court case was settled this June, in what Law Professor & Canada Research Chair in Internet and E-commerce Law Michael Geist declared “a big win for open data in Canada”, but Canadian postal codes are still protected under Crown copyright. Why? Canada Post sells the postal codes to businesses that use them for marketing.

While there has been extensive research and writing done on why opening up postal codes makes more economic sense, our postal codes remain closed data. Our federal government speaks highly of openness, and as Scassa says “one might well ask why, instead of toiling for years to come up with the current open licence, the government has not shown its commitment to openness by abolishing Crown copyright. It’s not as radical as it might sound. In the U.S., s. 105 of the Copyright Act expressly denies protection to works of the U.S. government without any obvious negative consequences. In the U.S., these works are automatically in the public domain. This legislated, hard law solution makes the commitment real and relatively permanent.”

If you scratch the surface of the idea of open, our governments can and do have it both ways right now. It’s easy to talk a lot of game about being open, while not doing much to guarantee it. And in an age of ever-increasing privatization of public services, more and more public data will sit outside of government in private hands.

Changing or creating legislation at all levels of government is an option to manage this. As Peter Wells of the Open Data Institute in the UK puts it “policy is useful, but legislation provides a level of reliability for data publishers and consumers that policies cannot.”

D’Onofrio, however, is hesitant to suggest a rush to legislate. In his mind, there are certain movements and initiatives that will persist and survive the government of the day, with the open movement being one of them. He suggests an approach of being “innovative and creative with policy—do that first—if that leads to the requirement of legislation then let’s do it then.”

The open movement needs to keep “open-washing” in check, and not allow governments to say the right things and sound open without following through on core changes to guarantee it. The Harper government was strong on open data and became part of the international Open Government Partnership two years after it removed the long-form census. This was peak open government doublespeak.

We should push harder for data and information access to be protected by law rather than relying on fragile policy. These lines should be well-drawn and shaped by public input, and not loosely defined by government language and communications.