Talking About a (Data) Revolution

16 October 2013

By Dave Banisar

Banisar is Senior Legal Counsel of Article 19.  The following article was posted Oct. 16, 2013, on the Article 19 website.

At the end of this month, over 50 nations will converge on London for the annual summit of the Open Government Partnership (OGP). The OGP has seen rapid growth since its inception 3 years ago as an initiative of the Obama administration designed to promote open government globally.

At the top of the agenda of the Summit will be the power of data and making it “open”. This has become a bit of a fetish in the transparency world in recent years – how data will save the world and big data will save it even faster. At the UN General Assembly, the phrase “data revolution” was tossed around even by repressive states who often throw people into jail for talking of “revolution”.

There is a danger that many governments are attempting cynically to undermine open government, which ensures accountability, by promoting open data as an equal alternative. The UK government, which is sponsoring the event, has laudably been developing and extending its data.gov.uk portal which makes much spending and other data available. But at the same time, the government has been pushing for amendments to the Freedom of Information Act (FOIA) which would seriously limit the ability of the public to understand how and why decisions are made. Cabinet Minister, Francis Maude, has publicly said that he would like to see FOIA replaced by Open Data.

In the OGP, many countries in their national action plans highlight their open data commitments but are silent on ensuring that people have a right to demand the information that they need.

It is important to recognize the utility that data can bring. Data can ease analysis, reveal important patterns and facilitate comparisons. For example, the Transactional Access Clearing House (TRAC – http://trac.syr.edu) at Syracuse University uses data sets from the US Department of Justice to analyze how the federal government enforces its criminal and civil laws, showing how laws are applied differently across the US.

The (somewhat ICT-companies manufactured) excitement over “E-government” in the late 1990s imagined a brave new e-world where governments would quickly and easily provide needed information and services to their citizens. This was presented as an alternative to the “reactive” and “confrontational” right to information laws but eventually led to the realization that ministerial web pages and the ability to pay tickets online did not lead to open government. Singapore ranks near the top every year on e-government but is clearly not an ‘open government’. Similarly, it is important to recognize that governments providing data through voluntary measures is not enough.

For open data to promote open government, it needs to operate within a framework of law and regulation that ensures that information is collected, organized and stored and then made public in a timely, accurate and useful form.   The information must be more than just what government bodies find useful to release, but what is important for the public to know to ensure that those bodies are accountable.

Otherwise, it is in danger of just being propaganda, subject to manipulation to make government bodies look good. TRAC has had to sue the USA federal government dozens of times under the Freedom of Information Act to obtain the government data and after they publish it, some government bodies still claim that the information is incorrect.  Voluntary systems of publication usually fail when they potentially embarrass the bodies doing the publication.

In the countries where open data has been most successful such as the USA and UK, there also exists a legal right to demand information which keeps bodies honest. Most open government laws around the world now have requirements for affirmative publication of key information and they are slowly being amended to include open data requirements to ensure that the information is more easily usable.

Where there is no or weak open government laws, many barriers can obstruct open data. In Kenya, which has been championing their open data portal while being slow to adopt a law on freedom of information, a recent review found that the portal was stagnating. In part, the problem was that in the absence of laws mandating openness, there remains a culture of secrecy and fear of releasing information.

Further, mere access to data is not enough to ensure informed participation by citizens and enable their ability to affect decision-making processes.  Legal rights to all information held by governments – right to information laws – are essential to tell the “why”. RTI reveals how and why decisions and policy are made – secret meetings, questionable contracts, dubious emails and other information. These are essential elements for oversight and accountability. Being able to document why a road was built for political reasons is as crucial for change as recognizing that it’s in the wrong place. The TRAC users, mostly journalists, use the system as a starting point to ask questions or why enforcement is so uneven or taxes are not being collected. They need sources and open government laws to ask these questions.

Of course, even open government laws are not enough. There needs to be strong rights for citizen consultation and participation and the ability to enforce those rights, such as is mandated by the UNECE Convention on Access to Environment Information, Public Participation and Access to Justice (Aarhus Convention). A protocol to that convention has led to a Europe-wide data portal on environmental pollution.

For open data to be truly effective, there needs to be a right to information enshrined in law that requires that information is made available in a timely, reliable format that people want, not just what the government body wants to release. And it needs to be backed up with rights of engagement and participation. From this open data can flourish.  The OGP needs to refocus on the building blocks of open government – good law and policy – and not just the flashy apps.

 

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