Opinion

Open Government? The Dangerous Distraction of Faux Transparency

While officials disgorge data sets and tweet away, citizens still lack muscle to compel the state to release records.

By Stanley Tromp, 17 Sep 2012, TheTyee.ca

Secret Book

For citizens, the vital missing factor is the power of legal coercion.

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As delegates prepare for the B.C. Information Summit 2012 at Robson Square this September 19, I hope they will consider a serious but mainly overlooked new problem.

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 hard fact of life is that most governments will grant one option or the other -- but not both. Ideally, these two routes would both be followed, and regarded independently. But, in a bait-and-switch game, the political reality is that government will inevitably (and successfully) exploit its generosity about the first option to dismiss public demands on the second.

This is already happening. In Newfoundland last June, for example, the government shocked observers by boldly gutting its FOI law in Bill 29 to keep cabinet and companies' records secret, block the information commissioner from viewing some documents, raise FOI fees, and allow ministers on their own to bar any FOI request they called "frivolous." Then, during debate on the bill, government members boasted as proof that "we are committed to openness" that they were posting ministers' travel and expense records online, as well as starting a program to digitize and post historical deeds.

In the same vein, last year Ottawa announced its "open data portal," which collates 260,000 government data sets on everything from immigration statistics to mapping co-ordinates. The B.C. government created DataBC, a catalogue of 2,500 data sets. Federal Treasury Board president Tony Clement hosted a so-called "Twitter town hall" to discuss using social media to make government more transparent. In all these discussions there was no mention of FOI law reform.

Of this latter event, Vincent Gogolek of the B.C. Freedom of Information and Privacy Association (FIPA) told CBC: "Everyone thinks it's so cool that the minister tweets, and talks about 'crowdsourcing' and other techie buzz, but it's like the government's saying: 'Look at the shiny new gee-gaws that we have here, and ignore the smell coming from the access to information system.' "

Shallow document dumps

Meanwhile, Prime Minister Stephen Harper's eight promises of 2006 to update the archaic 1982 Access to Information to world standards remain unfulfilled, and the B.C. government has ignored dozens of recommendations for FOI law reform made by three legislative committees since 1999.

While some are interesting, these data sets are mainly a (felicitously named) "document dump" useful for commercial data-miners or app developers, and a delight for trivial pursuit players everywhere -- including, for instance, a registry of all Canadian civil aircraft, as well as a history of federal ridings since Confederation.

This is, overall, a pitifully shallow idea of open government, an Internet tranquillizer spread a mile wide and a millimeter deep. Better to beware of Greeks bearing gifts such as this Trojan horse, and chic glitzy window displays can indeed distract viewers from the real business going on in the back rooms. Promoters of Internet panaceas may be simply too naive to realize how governments cynically use their transparency rhetoric for anti-transparency ends.

While such a pernicious indirect result might not have been their intent, the outcome of this tragic irony is the same nonetheless. If this trend continues, we will end up knowing not more about what really matters but less. And less substantial transparency leads to less democracy overall.

Essential: legal coercion

The vital missing factor is the power of legal coercion. It is the foundation of accountability, and without that, we really have nothing. As Swedish philosopher Sissela Bok wrote, "If officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless."

It is as though the digital activists do not understand the key distinction between voluntary versus mandatory transparency, and that even the vaunted datasets are posted by government solely at its own whim and caprice, as a bonus that it could rescind any minute without having to explain why.

Only a powerful FOI law can compel the release of records that the government will never release voluntarily, through legal actions if need be (which digital activists very rarely if ever mount).

For example, FIPA had to wage a costly eight-year legal battle to see the IBM contract, The Ubyssey did so for five years for the UBC-Coca Cola agreement, while for the past 15 years I have had to push for FOI record releases through 22 rulings by the B.C. information commissioner and five court cases. For the past six years I have been embroiled in a legal dispute to overturn UBC's refusal to open up records of its wholly owned and controlled private companies (such as UBC Properties Investments Ltd.) as in my view it wrongly claims these are "independent" and so not covered by the FOI law. At present, Ottawa is improperly withholding a 2007 report on the future of pension funding in Canada, for which FOI applicants might have to sue to release. And so it goes.

Sleepwalking over a cliff?

While we drift ever further away from reality in the cyberspace fantasyland of instant gratification where all things appear possible, the digital activists' work may have unforeseen results. The public may be led to sleepwalking over a cliff.

The dream that online data sets are the main solution to government accountability is like that of someone happy to be fed a diet solely of chocolate ice cream every day instead of substantial meals: being delighted in the short term but then, over time, perishing of informational malnutrition.

Perhaps even literally so at times.

FOI expert Ken Rubin has struggled for years in the courts to obtain records on meat inspections and airline safety. When the media applied through FOI for notes on conference calls during the 2008 meat listeriosis outbreak which killed 20 people, the Harper government illegally delayed the records' release for months. (The FOI law did eventually work to reveal how Ottawa had pushed the United States to accept lower meat inspection standards.)

When I applied through B.C.'s flawed FOI law for the legislature's secret seismic report -- which revealed that, unless it spent $250 million in upgrades, the buildings could collapse during an earthquake upon the 500 people who work there -- the legislature blocked access to the report by misapplying four overbroad exemptions in the law, but upon my appeal gave it up 14 months later.

I predict that, by inadvertently weakening the FOI system, the digital activists' current efforts could make such records much harder to obtain in future. (A hopeful sign is that lately a few of them seem to articulate a vague feeling of missing something.)

A 'fix' that makes things worse

Over the decades, we have faced many threats to the FOI system, but this one is in some ways the most damaging, because it convincingly poses as a resolution to the problem while actually -- unnoticed -- making it worse.

It is not worth the pacifying gift of the online postings of city hall's garbage collection schedules -- the kind of document that people for years would clip from a newspaper and post on their fridge doors -- to sacrifice our access to cabinet minutes and health audits. Datasets ideally would be a useful supplement to but not a substitute for strong FOI laws, as a sugary dessert is better after a good meal.

The fastest and easiest road is not always the best. Digital activists are dazzled and dazed by new technology, first mistaking quantity of information for quality, then form for content, and finally the means for the ends. One fatal delusion is that format alone somehow creates "value added" quality content. No. Common sense tells us that a cabinet report on a public disease risk that is 97 per cent blanked out due to an archaic FOI law, and then those blank pages are instantly posted to all the blogs and twitter feeds in the world, does not make us a bit more informed or empowered: Garbage in, garbage out.

But there is a positive alternative. If digital activists (such as Vancouver city councillor Andrea Reimer and consultant to government David Eaves) really want to do some good for government transparency, as they say, then they could instead focus their digital and social media energies on mounting campaigns for needed FOI law reforms, for all the years it would likely take to achieve it. If that was done, it could indeed be a great accomplishment.  [Tyee]

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