Appeared in the Toronto Star on November 29, 2014 as What Open Government Hides

Treasury Board President Tony Clement unveiled the latest version of his Open Government Action Plan last month, continuing a process that has seen some important initiatives to make government data such as statistical information and mapping data publicly available in open formats free from restrictive licenses.

There is much to like about Canada’s open government efforts, which have centred on three pillars: open data, open information, and open dialogue. Given the promise of “greater transparency and accountability, increased citizen engagement, and driving innovation and economic opportunity”, few would criticize the aspirational goals of Canada’s open government efforts. Yet scratch the below the surface of new open data sets and public consultations and it becomes apparent that there is much that open government hides.

The federal efforts around open data have shown significant progress in recent years. What started as a few pilot projects with relatively obscure data has grown dramatically with over 200,000 government data sets now openly available for use without the need for payment or permission. Moreover, the government has addressed concerns with its open government licence, removing some of the initial restrictions that unnecessarily hamstrung early efforts.

However, the enthusiasm for open data has not been matched with reforms to the access to information system. Despite government claims of openness and transparency, all government data is not equal. There is a significant difference between posting mapping data and making available internal information on policy decisions that should be released under access to information rules.

Indeed, while the government has invested in making open data sets available, it has failed to provide the necessary resources to the access to information system. The Information Commissioner of Canada has 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.

The efforts on open dialogue and open government suffer from similar shortcomings. The government and its agencies have embarked on public consultations on many issues in recent years: the Canadian Radio-television and Telecommunications Commission asked Canadians for their views on broadcast regulation, the Competition Bureau consulted on advocacy priorities, and House and Senate committees regularly hold hearings on new legislative proposals.

Yet open dialogues and consultations mean little if the outcomes are pre-determined and the public input is largely ignored.  This form of consultation is properly characterized as “consultation theatre”, where government seeks to claim consultation with no discernable impact on the resulting law or policy.

For example, this week the Senate Committee on Justice and Human Rights wrapped up its hearing on Bill C-13, passing the lawful access/cyberbullying bill with no comments or changes. The hearing included many voices (I appeared in a personal capacity), but Carol Todd, the mother of cyberbullying victim Amanda Todd, was excluded after she expressed concern with the privacy implications of the bill. Similarly, Daniel Therrien, the Privacy Commissioner of Canada appointed earlier this year by the government, advocated changes during his appearance that were ultimately ignored.

Open dialogue and public consultations do not mean that the government simply follows whatever advice is offered up through the process. However, if the consultations or hearings are little more than theatre, claims of open government or open dialogue mean very little.

Open government – whether open data or dialogue – offers great promise to provide a more transparent, inclusive and efficient government. Unfortunately, ignoring issues such as access to information and genuine efforts to incorporate public input into policies means that for now open government is most notable for what it hides.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.