This week, I was pleased to participate in a joint initiative between the University of Ottawa’s Public Law Group and iPolitics to examine the government’s Speech from the Throne from many policy perspectives. This includes contributions from Professors Mendes, Morales, Oliver, Pal, Dodek, Forcese, Chalifour, and Cairns Way. My piece (iPolitics version, homepage version) focuses on the government’s commitment to “open by default”, which appears in all ministerial mandate letters. I note that the emphasis on open and transparent government in the Speech from the Throne was both welcome and unsurprising. Prime Minister Justin Trudeau campaigned on openness and transparency with impressive commitments to transform how Canadians access government information.
While the Throne Speech was short on specifics, every ministerial mandate letter (whose release was itself an important step toward greater openness) stated:
We have also committed to set a higher bar for openness and transparency in government. It is time to shine more light on government to ensure it remains focused on the people it serves. Government and its information should be open by default.
Moreover, some ministers received specific instructions on the issue. For example, Treasury Board President Scott Brison’s letter calls on him to “accelerate and expand open data initiatives and make government data available digitally, so that Canadians can easily access and use it”, while Minister of Innovation, Science and Development Navdeep Bains is tasked with improving “the quality of publicly available data in Canada.”
An “open by default” standard is the right approach to open data and is likely to lead to a significant expansion of the government information readily available to the public. Yet if success is measured primarily by the number of accessible data sets, the effort will have failed. The open data commitment must also address the ability of Canadians to have the connectivity necessary to access the information, the legal rights to use it, and the power to obtain government information of their choosing beyond large data sets.
The issue of connectivity is directly linked to the need for universal, affordable broadband services. Canada’s goals for broadband access has been a confusing mix of policy pronouncement and regulator targets. The Canadian Radio-television and Telecommunications Commission 2015-2016 Priorities and Planning Report target for broadband access is 5 megabits per second download for 100 per cent of the population by the end of this year. Meanwhile, the current government’s target will take many more years to complete (the target is 280,000 Canadians with new or faster access by March 2019) and it does not envision universal access.
Given the state of Canadian broadband, there is a desperate need for new thinking on affordable broadband access that goes beyond funding announcements that can take years to implement. Indeed, if the commitment to open by default for government information means open to all, then the lack of affordable connectivity for many Canadians must be addressed.
Once Canadians can access government data, they must also have the legal right to use it in whatever manner they see fit. Canada still retains “crown copyright”, which reflects a centuries-old perspective that the government ought to control the public’s ability to use official documents. Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission.
The Conservative government introduced a non-commercial licence for government information to allow for some usage without the need for further permission. That approach has its limitations, however, including the prospect of licensing changes and restrictions on commercial usage. The far better approach would be for government to get out of the copyright ownership business altogether, by repealing crown copyright.
Finally, open data should mean more than just data sets as there must also be sufficient resources to allow for a robust access to information system. The Information Commissioner of Canada has repeatedly warned that inadequate financing has made it virtually impossible to meet demand and respond to complaints. Regular users of the access to information system invariably encounter long delays, aggressive use of exceptions to redact important information, significant costs, and inconsistent implementation of technology to provide more efficient and cost-effective service.
In short, the access to information system is broken. An open government plan that only addresses the information that government wants to make available, rather than all of the information to which the public is entitled, is not an open plan. Open by default is the right place to start and Canadians will be watching intently to see how far the policy extends.