Tag Archives: ATIP

Access to Information, Technology and Open Data – Keynote for the Commissioners

On October 11th I was invited by Elizabeth Denham, the Access to Information and Privacy Commissioner for British Columbia to give a keynote at the Privacy and Access 20/20 Conference in Vancouver to an audience that included the various provincial and federal Information Commissioners.

Below is my keynote, I’ve tried to sync the slides up as well as possible. For those who want to skip to juicier parts:

  • 7:08 – thoughts about the technology dependence of RTI legislation
  • 12:16 –  the problematic approach to RTI implementation that results from these unsaid assumptions
  • 28:25 – the need and opportunity to bring open data and RTI advocates together

Some acronyms used:

Why Journalists Should Support Putting Access to Information Requests Online Immediately

Here’s a headline you don’t often expect to see: “Open-Government Laws Fuel Hedge-Fund Profits.”

It’s a fascinating article that opens with a story about SAC Capital Advisors LP – a hedge fund. Last December SAC Capital used Freedom of Information Laws (FOIA) to request preliminary results on a Vertex Pharmaceuticals drug being tested by the US Food and Drug Administration. The request revealed there were no “adverse event reports,” increasing the odds the drug might be approved. SAC Capital used this information – according to the Wall Street Journal – to snatch up 15,000 shares and 25,000 options of Vertex. In December – when the request was made – the stock traded around $40. Eight months later it peaked at $89 and still trades today at around $75. Thus, clever usage of government access to information request potentially netted the company a cool ROI of 100% in 9 months and a profit of roughly 1.2 million dollars (assuming they sold around $80).

This is an interesting story. And I fear it says a lot about the future of access to information laws.

This is because it contrasts sharply with the vision of access to information the media likes to portray: Namely, that access requests are a tool used mainly by hardened journalists trying to uncover dirt about a government. This is absolutely the case… and an important use case. But it is not the only usage of access laws. Nor was it the only intended use of the law. Indeed, it is not even the main usage of the law.

In my work on open data I frequently get pulled into conversations about access to information laws and their future. I find these conversations are aggressively dominated by media representatives (e.g. reporters) who dislike alternative views. Indeed, the one-sided nature of the conversation – with some journalists simply assuming they are the main and privileged interpreters of the public interest around access laws – is deeply unhealthy. Access to information laws are an important piece of legislation. Improving and sustaining them requires a coalition of actors (particularly including citizens), not just journalists. Telling others that their interests are secondary is not a great way to build an effective coalition. Worse, I fear the dominance of a single group means the conversation is often shaped by a narrow view of the legislation and with a specific set of (media company) interests in mind.

For example, many governments – including government agencies in my own province of British Columbia – have posted responses to many access to information requests publicly. This enrages (and I use that word specifically) many journalists who see it as a threat. How can they get a scoop if anyone can see government responses to their requests at the same time? This has led journalists to demand – sometimes successfully – that the requestor have exclusive access to government responses for a period of time. Oy vey. This is dangerous.

For certain types of stories I can see how complete transparency of request responses could destroy a scoop. But most stories – particularly investigative stories – require sources and context and understanding. Such advantages, I suspect, are hard to replicate and are the real source of competitive advantage (and if they aren’t… shouldn’t they be?).

It also suggests that a savvy public – and the media community – won’t be able to figure out who always seems to be making the right requests and reward them accordingly. But let’s put issues of a reputation economy and the complexity of reporting on a story aside.

First, it is worth noting that it is actually in the public interest to have more reporters cover a story and share a piece of news – especially about the government. Second, access to information laws were not created to give specific journalists scoops – they were designed to maximize the public’s capacity to access government information. Protecting a media company’s business model is not the role of access laws. It isn’t even in the spirit of the law.

Third, and worst, this entire debate fails to discuss the risks of such an approach. Which brings me back to the Wall Street Journal article.

I have, for years, warned that if public publication of access to information requests results are delayed so that one party (say, a journalist) has exclusive access for a period of time, then the system will also be used by others in pursuit of interests that might not be in the public good. Specifically, it creates a strong incentive for companies and investors to start mining government to get “exclusive” rights to government information they can put to use in advancing their agenda – making money.

As the SAC Capital Case outlined above underscores, information is power. And if you have exclusive access to that information, you have an advantage over others. That advantage may be a scoop on a government spending scandal, but it can also be a stock tip about a company whose drug is going to clear a regulatory hurdle, or an indication that a juicy government contract is about to be signed, or that a weapons technology is likely to be shelved by the defence department. In other words – and what I have pointed out to my journalist friends – exclusivity in access to information risks transforming the whole system into a giant insider information generation machine. Great for journalists? Maybe. (I’ve my doubts – see above.) But great for companies? The Wall Street Journal article shows us it already is. Exclusivity would make it worse.

Indeed, in the United States, the private sector is already an enormous generator of access requests. Indeed one company, that serves as a clearing house for requests, accounts for 10% of requests on its own:

The precise number of requests from investors is impossible to tally because many come from third-party organizations that send requests on behalf of undisclosed clients—a thriving industry unto itself. One of them, FOI Services Inc., accounted for about 10% of the 50,000 information requests sent to the FDA during the period examined by the Journal. Marlene Bobka, a senior vice president at Washington-based FOI Services, says a “huge, huge reason people use our firm is to blind their requests.”

Imagine what would happen if those making requests had formal exclusive rights? The secondary market in government information could become huge. And again, not in a way that advances the public interest.

In fact, given the above-quoted paragraph, I’m puzzled by the fact that journalists don’t demand that every access to information request be made public immediately. All told, the resources of the private sector (to say nothing of the tens of thousands of requests made by citizens or NGOs) dwarf those of media companies. Private companies may start (or already are) making significantly more requests than journalists ever could. Free-riding on their work could probably be a full time job and a successful career for at least a dozen data journalists. In addition, by not duplicating this work, it frees up media companies’ capacity to focus on the most important problems that are in the public good.

All of this is to say… I fear for a world where many of the journalists I know – by demanding changes that are in their narrow self-interest – could help create a system that, as far as I can tell, could be deeply adverse to the public interest.

I’m sure I’m about to get yelled at (again). But when it comes to access to information requests, we are probably going to be better off in a world where they are truly digitized. That means requests can be made online (something that is somewhat arriving in Canada) and – equally importantly – where results are also published online for all to see. At the very minimum, it is a conversation that is worth having.

On Being Misquoted – Access Info Europe and Freedominfo.org

I’ve just been alerted to a new post out on Freedominfo.org has quotes of mine that are used in way that is deeply disappointing. It’s never fund to see your ideas misused to make it appear that you are against something that you deeply support.

The most disappointing misquote comes from Helen Darbishire, a European FOI expert at Access Info Europe. Speaking about the convergence between open data and access to information laws (FOIA) she “lamented that comments like Eaves’ exacerbate divisions at a time when  “synergies” are developing at macro and micro levels.” The comment she is referring to is this one:

“I just think FOIA is broken; the wait time makes it broken….” David Eaves, a Canadian open government “evangelist,” told the October 2011 meeting of International information commissioners. He said “efforts to repair it are at the margins” and governments have little incentive for reform.

I’m not sure if Darbishire was present at the 7th International Conference of Information Commissioners where I made this comment in front of a room of mostly FOI experts but the comment actually got a very warm reception. Specifically, I was talking about how the wait times of access to information requests – not theidea of Access to Information. The fact is, that for many people waiting 4-30 weeks for a response from a government for a piece of information makes the process broken. In addition, I often see the conversation among FOIA experts focus on how to reduce that time by a week or a few days. But for most people, that will still leave them feeling like the system is too slow and so, in their mind, broken, particularly in a world where people are increasingly used to getting the information they want in about .3 seconds (the length of a Google search).

What I find particularly disappointing about Darbishire’s comments is that I’ve been advocating for for the open data and access to information communities to talk more to one another – indeed long before I find any reference of her calling for it. Back in April during the OGP meeting I wrote:

There remain important and interest gaps particularly between the more mature “Access to Information” community and the younger, still coalescing “Gov2.0/OpenGov/Tech/Transparency” community. It often feels like members of the access to information community are dismissive of the technology aspects of the open government movement in general and the OGP in particular. This is disappointing as technology is likely going to have a significant impact on the future of access to information. As more and more government work gets digitized, how way we access information is going to change, and the opportunities to architect for accessibility (or not) will become more important. These are important conversations and finding a way to knit these two communities together more could help the advance everyone’s thinking.

And of course, rather than disparage Access to Information as a concept I frequently praise it, such as during this article about the challenges of convergence between open data and access to information:

Let me pause to stress, I don’t share the above to disparage FOI. Quite the opposite. It is a critical and important tool and I’m not advocating for its end. Nor am I arguing the open data can – in the short or even medium term – solve the problems raised above.

That said, I’m willing to point out the failures of both Open Data and Access to information. But to then cherry pick my comments about FOIA and paint me as someone who is being unhelpful strikes me as problematic.

I feel doubly that way since, not only have I advocated for efforts to bridge the communities, I’ve tried to make efforts to make it happen. I was the one who suggested that Warren Krafchik – the Civil Society co-chair of the Open Government Partnership be invited to the Open Knowledge Festival to help with a conversation around helping bring the two communities together and reached out to him with the invitation.

If someone wants to label me as someone who is opinionated in the space, that’s okay – I do have opinions about what works and what doesn’t work and try to share them, sometimes in a constructive way, and sometimes – such as when on a panel – in a way that helps spur discussion. But to lay the charge of being divisive, when I’ve been trying for several years to bridge the conversation and bring the open data perspective into the FOIA community, feels unfair and problematic.

Access to Information, Open Data and the Problem with Convergence

In response to my post yesterday one reader sent me a very thoughtful commentary that included this line at the end:

“Rather than compare [Freedom of Information] FOI legislation and Open Gov Data as if it’s “one or the other”, do you think there’s a way of talking about how the two might converge?”

One small detail:

So before diving in to the meat let me start by saying I don’t believe anything in yesterday’s post claimed open data was better or worse than Freedom of Information (FOI often referred to in Canada as Access to Information or ATI). Seeing FOI and open data as competing suggests they are similar tools. While they have similar goals – improving access – and there may be some overlap, I increasingly see them as fundamentally different tools. This is also why I don’t see an opportunity for convergence in the short term (more on that below). I do, however, believe open data and FOI processes can be complimentary. Indeed, I’m hopeful open data can alleviate some of the burden placed on FOI system which are often slow. Indeed, in Canada, government departments regularly violate rules around disclosure deadlines. If anything, this complimentary nature was the implicit point in yesterday’s post (which I could have made more explicit).

The Problem with Convergence:

As mentioned above, the overarching goals of open data and FOI systems are similar – to enable citizens to access government information – but the two initiatives are grounded in fundamentally different approaches to dealing with government information. From my view FOI has become a system of case by case review while open data is seeking to engage in an approach of “pre-clearance.”

Part of this has to do with what each system is reacting to. FOI was born, in part, out of a reaction to scandals in the mid 20th century which fostered public support for a right to access government information.

FOI has become a powerful tool for accessing government information. But the infrastructure created to manage it has also had some perverse effects. In some ways FOI has, paradoxically made it harder to gain access to government information. I remember talking to a group of retired reporters who talk about how it was easier to gain access to documents in a pre-FOI era since there were no guidelines and many public servants saw most documents as “public” anyways. The rules around disclosure today – thanks in part to FOI regimes – mean that governments can make closed the “default” setting for government information. In the United States the Ashcroft Memo serves as an excellent example of this problem. In this case the FOI legislation actually becomes a tool that helps governments withhold documents, rather than enable citizens to gain legitimate access.

But the bigger problem is that the process by which access to information requests are fulfilled is itself burdensome. While relevant and necessary for some types of information it is often overkill for others. And this is the niche that open data seeks to fill.

Let me pause to stress, I don’t share the above to disparage FOI. Quite the opposite. It is a critical and important tool and I’m not advocating for its end. Nor am I arguing the open data can – in the short or even medium term – solve the problems raised above.

This is why, over the short term, open data will remain a niche solution – a fact linked to its origins. Like FOI Open data has its roots in government transparency. However, it also evolved out of efforts to tear down antiquated intellectual property regimes to the facilitate sharing of data/information (particularly between organizations and governments). Thus the emphasis was not on case by case review of documents, but rather of clearing rights to categories of information, both created and to be created in the future. In other words, this is about granting access to the outputs of a system, not access to individual documents.

Another way of thinking about this is that open data initiatives seek to leverage the benefits of FOI while jettisoning its burdensome process. If a category of information can be pre-clear in advanced and in perpetuity for privacy, security and IP concerns then FOI processes – essential for individual documents and analysis – becomes unnecessary and one can reduce the transaction costs to citizens wishing to access the information.

Maybe, in the future, the scope of these open data initiatives could become broader, and I hope they will. Indeed there is, ample evidence to suggest that technology could be used to pre-clear or assess the sensitivity of any government document. An algorithm that assess a mixture of who the author is, the network of people who review it and a scan of the words would probably allow ascertain if a document could be released to an ATIP request in seconds, rather than weeks. It could at least give a risk profile and/or strip out privacy related information. These types of reforms would be much more disruptive (in the positive sense) to FOI legislation than open data.

But all that said, just getting the current focus of open data initiatives right would be a big accomplishment. And, even if such initiatives could be expanded, there are limits. I am not so naive to believe that government can be entirely open. Nor am I sure that would be an entirely good outcome. When trying to foster new ideas or assess how to balance competing interests in society, a private place to initiate and play with ideas may be essential. And despite the ruminations above, the limits of government IT systems means there will remain a lot of information – particularly non-data information like reports and analysis – that we won’t be able to “pre-clear- for sharing and downloading. Consequently an FOI regime – or something analogous – will continue to be necessary.

So rather than replace or converge with FOI systems, I hope open data will, for the short to medium term actually divert information out of the FOI, not because it competes, but because it offers a simpler and more efficient means of sharing (for both government and citizens) certain types of information. That said, open data initiatives offer none of the protections or rights of FOI and so this legislation will continue to serve as the fail safe mechanism should a government choose to stop sharing data. Moreover, FOI will continue to be a necessary tool for documents and information that – for all sorts of reasons (privacy, security, cabinet confidence, etc…) cannot fall under the rubric of an open data initiative. So convergence… not for now. But co-existence feels both likely and helpful for both.

Access to Information is Fatally Broken… You Just Don’t Know it Yet

I’ve been doing a lot of thinking about access to information, and am working on a longer analysis, but in the short term I wanted to share two graphs – graphs that outline why Access to Information (Freedom of Information in the United States) is unsustainable and will, eventually, need to be radically rethought.

First, this analysis is made possible by the enormous generosity of the Canadian Federal Information Commissioners Office which several weeks ago sent me a tremendous amount of useful data regarding access to information requests over the past 15 years at the Treasury Board Secretariat (TBS).

The first figure I created shows both the absolute number of Access to Information Requests (ATIP) since 1996 as well as the running year on year percentage increase. The dotted line represents the average percentage increase over this time. As you can see the number of ATIP requests has almost tripled in this time period. This is very significant growth – the kind you’d want to see in a well run company. Alas, for those processing ATIP requests, I suspect it represents a significant headache.

That’s because, of course, such growth is likely unmanageable. It might be manageable if say, the costs of handling each requests was dropping rapidly. If such efficiencies were being wrestled out of the system of routing and sorting requests then we could simply ignore the chart above. Sadly, as the next chart I created demonstrates this is not the case.

ATIPcosts

In fact the costs of managing these transactions has not tripled. It has more than quadrupled. This means that not only are the number of transactions increasing at about 8% a year, the cost of fulfilling each of those transactions is itself rising at a rate above inflation.

Now remember, I’m not event talking about the effectiveness of ATIP. I’m not talking about how quickly requests are turned around (as the Information Commissioner has discussed, it is broadly getting worse) nor am I discussing less information is being restricted (it’s not, things are getting worse). These are important – and difficult to assess – metrics.

I am, instead, merely looking at the economics of ATIP and the situation looks grim. Basically two interrelated problems threaten the current system.

1) As the number of ATIP requests increase, the manpower required to answer them also appears to be increasing. At some point the hours required to fulfill all requests sent to a ministry will equal the total hours of manpower at that ministry’s  disposal. Yes that day may be far off, but they day where it hits some meaningful percentage – say 1%, 3% or 5% of total hours worked at Treasury Board, may not be that far off. That’s a significant drag on efficiency. I recall talking to a foreign service officer who mentioned that during the Afghan prisoner scandal an entire department of foreign service officers – some 60 people in all – were working full time on assessing access to information requests. That’s an enormous amount of time, energy and money.

2) Even more problematic than the number of work hours is the cost. According to the data I received, Access to Information requests costs The Treasury Board $47,196,030 last year. Yes, that’s 47 with a “million” behind it. And remember, this is just one ministry. Multiply that by 25 (let’s pretend that’s the number of ministries, there are actually many more, but I’m trying to be really conservative with my assumptions) and it means last year the government may have spent over $1.175 Billion fulfilling ATIP requests. That is a staggering number. And its growing.

Transparency, apparently, is very, very expensive. At some point, it risks becoming too expensive.

Indeed, ATIP reminds me of healthcare. It’s completely unsustainable, and absolutely necessary.

To be clear, I’m not saying we should get rid of ATIP. That, I believe, to be folly. It is and remains a powerful tool for holding government accountable. Nor do I believe that requesters should pay for ATIP requests as a way to offset costs (like BC Ferries does) – this creates a barrier that punishes the most marginalized and threatened, while enabling only the wealthy or well financed to hold government accountable.

I do think it suggests that governments need to radical rethink how manage ATIP. More importantly I think it suggests that government needs to rethink how it manages information. Open data, digital documents are all part of a strategy that, I hope, can lighten the load. I’ve also felt that if/as government’s move their work onto online platforms like GCPEDIA, we should simply make non-classified pages open to the public on something like a 5 year timeline. This could also help reduce requests.

I’ve more ideas, but at its core we need a system rethink. ATIP is broken. You may not know it yet, but it is. The question is, what are we going to do before it peels off the cliff? Can we invent something new and better in time?

Canada ranks last in freedom of information

For those who missed it over the weekend it turns out Canada ranks last in freedom of information study that looked at the world’s western Parliamentary democracies. What makes it all the more astounding is that a decade ago Canada was considered a leader.

Consider two from the Information Commissioner, Suzanne Legault quotes pulled from the piece:

Only about 16 per cent of the 35,000 requests filed last year resulted in the full disclosure of information, compared with 40 per cent a decade ago, she noted.

And delays in the release of records continue to grow, with just 56 per cent of requests completed in the legislated 30-day period last year, compared with almost 70 per cent at the start of the decade.

These are appalling numbers.

The sad thing is… don’t expect things to get better. Why?

Firstly, the current government seems completely uninterested in access to information, transparency and proactive disclosure, despite these being core planks of its election platform and core values of the reform movement that re-launched Canadian conservatism. Indeed, reforming and improving access to information is the only unfulfilled original campaign promise of the Conservatives – and there appears to be no interest in touching it. Quite the opposite – that political staff now intervene to block and restrict Access to Information Requests – contravening the legislation and policy – is now a well known and documented fact.

Second, this issue is of secondary importance to the public. While everyone will say they care about access to information and open government, then number of people (while growing) still remains small. These types of reports and issues are of secondary importance. This isn’t to say they don’t matter. They do – but generally after something bigger and nastier has come to light and the public begins to smell rot. Then studies like this become the type of thing that hurts a government – it gives legitimacy and language to a sentiment people widely feel.

Third, the public seems confused about who they distrust more – the fact is, however bad the current government is on this issue, the Liberal brand is still badly tarnished on this issue of transparent government due to the scandals from almost a decade ago. Sadly, this means that there will be less burden on this government to act since – every time the issue of transparency and open government arise – rather than act, Government leaders simply point out the other parties failings.

So as the world moves on while Canada remains stuck, its government becoming more opaque, distant and less accountable to the people that elect it.

Interestingly , this also has a real cost to Canada’s influence in the world. It means something when the world turns to you as an expert – as we once were on access to information – minister’s are consulted by other world leaders, your public servants are given access to information loops they might otherwise not know about, there is a general respect, a soft power, that comes from being an acknowledged leader. Today, this is gone.

Indeed, it is worth noting that of the countries survey in the above mentioned study, only Canada and Ireland do not have open data portals which allow for proactive disclosure.

It’s a sign of the times.

Rethinking Freedom of Information Requests: from Bugzilla to AccessZilla

Last week I gave a talk at the Conference for Parliamentarians hosted by the Information Commission as part of Right to Know Week.

During the panel I noted that, if we are interested in improving response times for Freedom of Information (FOI) requests (or, in Canada, Access to Information (ATIP) requests) why doesn’t the Office of the Information Commissioner use a bugzilla type software to track requests?

Such a system would have a number of serious advantages, including:

  1. Requests would be public (although the identity of the requester could remain anonymous), this means if numerous people request the same document they could bandwagon onto a single request
  2. Requests would be searchable – this would make it easier to find documents already released and requests already completed
  3. You could track performance in real time – you could see how quickly different ministries, individuals, groups, etc… respond to FOI/ATIP requests, you could even sort performance by keywords, requester or time of the year
  4. You could see who specifically is holding up a request

In short such a system would bring a lot of transparency to the process itself and, I suspect, would provide a powerful incentive for ministries and individuals to improve their performance in responding to requests.

For those unfamiliar with Bugzilla it is an open source software application used by a number of projects to track “bugs” and feature requests in the software. So, for example, if you notice the software has a bug, you register it in Bugzilla, and then, if you are lucky and/or if the bug is really important, so intrepid developer will come along and develop a patch for it. Posted below, for example, is a bug I submitted for Thunderbird, an email client developed by Mozilla. It’s not as intuitive as it could be but you can get the general sense of things: when I submitted the bug (2010-01-09), who developed the patch (David Bienvenu), it’s current status (Fixed), etc…

ATIPPER

Interestingly, an FOI or ATIP request really isn’t that different than a “bug” in a software program. In many ways, bugzilla is just a complex and collaborative “to do” list manager. I could imagine it wouldn’t be that hard to reskin it so that it could be used to manage and monitor access to information requests. Indeed, I suspect there might even be a community of volunteers who would be willing to work with the Office of the Information Commissioner to help make it happen.

Below I’ve done a mock up of what I think revamped Bugzilla, (renamed AccessZilla) might look like. I’m put numbers next to some of the features so that I can explain in detail about them below.

ATIPPER-OIC1

So what are some of the features I’ve included?

1. Status: Now an ATIP request can be marked with a status, these might be as simple as submitted, in process, under review, fixed and verified fixed (meaning the submitter has confirmed they’ve received it). This alone would allow the Information Commissioner, the submitter, and the public to track how long an individual request (or an aggregate of requests) stay in each part of the process.

2.Keywords: Wouldn’t it be nice to search of other FOR/ATIP requests with similar keywords? Perhaps someone has submitted a request for a document that is similar to your own, but not something you knew existed or had thought of… Keywords could be a powerful way to find government documents.

3. Individual accountability: Now you can see who is monitoring the request on behalf of the Office of the information commissioner and who is the ATIP officer within the Ministry. If the rules permitted then potential the public servants involved in the document might have their names attached here as well (or maybe this option will only be available to those who log on as ATIP officers.

4. Logs: You would be able to see the last time the request was modified. This might include getting the documents ready, expressing concern about privacy or confidentiality, or simply asking for clarification about the request.

5. Related requests: Like keywords, but more sophisticated. Why not have the software look at the words and people involved in the request and suggest other, completed requests, that it thinks might similar in type and therefor of interest to the user. Seems obvious.

6. Simple and reusable resolution: Once the ATIP officer has the documentation, they can simply upload it as an attachment to the request. This way not only can the original user quickly download the document, but anyone subsequent user who stumbles upon the request during a search could download the documents. Better still any public servant who has unclassified documents that might relate to the request can simply upload them directly as well.

7. Search: This feels pretty obvious… it would certainly make citizens life much easier and be the basic ante for any government that claims to be interested in transparency and accountability.

8. Visualizing it (not shown): The nice thing about all of these features is that the data coming out of them could be visualized. We could generate realt time charts showing average response time by ministry, list of respondees by speed from slowest to fastest, even something as mundane as most searched keywords. The point being that with visualizations is that a governments performance around transparency and accountability becomes more accessible to the general public.

It may be that there is much better software out there for doing this (like JIRA), I’m definitely open do suggestions. What I like about bugzilla is that it can be hosted, it’s free and its open source. Mostly however, software like this creates an opportunity for the Office of the Information Commissioner in Canada, and access to information managers around the world, to alter the incentives for governments to complete FOI/ATIP requests as well as make it easier for citizens to find out information about their government. It could be a fascinating project to reskin bugzilla (or some other software platform) to do this. Maybe even a Information Commissioners from around the world could pool their funds to sponsor such a reskinning of bugzilla…