Flying blind in the age of ‘open government’ ( André Côté)

Flying blind in the age of ‘open government’

How do our lumbering, 19th century systems of parliamentary government evolve in the age of ‘open government’? This is one of the big questions of our time.

If there is a trend running through the recent scandals in Ottawa and Queen’s Park — from Senate expenses to power plants — it’s the tendency of governments towards secrecy and concealing information, and the damaging consequences when details start to get out.

Governments aren’t sure what to do. In some cases, they’ve battened down the hatches, using any means necessary — stonewalling accountability officers, deleting emails — to resist or obstruct the release of information about politically charged issues.

At the same time, governments are rushing to launch ‘open data’ portals, promising new public engagement tools and tweeting their press releases. Faced with 21st century pressures from new technologies, a vigilant media, frustrated legislators and a public that increasingly demands more transparency, accountability and participation, they are scrambling to become (or to be seen as) more ‘open’, as Ontario’s Open Government initiative promises.

But there’s a big problem: Our centuries-old system of parliamentary government is built around a closed-door decision making model, which has at its heart the convention of cabinet confidentiality.

There are some clear examples of how this tension risks undermining good governance.

First, the drift towards “court government,” in the words of Donald Savoie, has left legislatures increasingly incapable of overseeing government activities, exercising its ‘power of the purse’, or holding the executive branch to account. Opposition legislators, frustrated at the gradual centralization of power and limited access to information, are trying to fight back.

In Ontario’s minority parliament, the backlash has quietly taken a troubling turn. Opposition-led legislative committees have recognized that they have the prerogative to request virtually any sort of executive information they want — regardless of whether a record is protected by ‘cabinet confidentiality’, ‘legal privilege’ or ‘commercial sensitivity’.

That level of committee access is certainly not a bad thing in itself, but the sweeping requests for confidential information have been occurring haphazardly, in a highly politicized environment, with no clear rules or discussion about which disclosures are in the public interest. The moderators of this process — the Speaker and house leaders, the legislative clerk’s office — are entangled and in a very difficult position to arbitrate or take a broader view about the implications.

Politicians and public servants are increasingly hesitant to create records, relying instead on phone calls, verbal transactions or private email accounts. These efforts to circumvent transparency mechanisms are a perverse outcome of the access to information regime.

A second, related fissure runs through the antiquated access to information system. Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) allows for a great deal of discretion about how a freedom of information (FOI) request is interpreted, what should be considered a ‘record’ for release, and what exemptions can be applied to withhold records. Requests are sometimes difficult to interpret or vexatious, and often can be extremely labour-intensive. The rules and processes can be ambiguous, as the provincially-appointed Information and Privacy Commissioner (IPC) acts as both system overseer and quasi-judicial arbiter of appeals when information requests are refused.

The culture of ‘FOI fear’ that has set in is fundamentally changing the way information is managed in government. Policy decisions are being ‘legalized’ to the extent that advice from government legal counsel can be better protected. Politicians and public servants are increasingly hesitant to create records — written, email or even text messages — relying instead on phone calls, verbal transactions or private email accounts. These efforts to circumvent transparency mechanisms are a perverse outcome of the access to information regime and present a significant threat to the capacity of our governments to make informed, accountable decisions.

Third, confronted with criticism about secrecy and eroding levels of public trust, governments are trumpeting efforts to create moreparticipatory government. The intentions are good, but the devil will be in the details. Most people don’t have the time, information or expertise to think through complex public issues, or to broker compromise solutions. That’s why we have a representativedemocracy, in which we elect people to act on our behalf with the support of professional civil servants. There is a significant risk that, in rushing to roll out these initiatives, governments could create public expectations that can’t be met, further undermining trust and accountability.

What all of this proves is that we’re flying blind into this new world of open government. We need to slow down and consider some fundamental issues.

To begin with, unless we’re actually of the view that cabinet confidentiality is a relic of a bygone age, we need to have an honest conversation about what the right balance is between ‘open’ and ‘closed’ government. Perhaps we need to establish broad guidelines — maybe in law rather than convention — about what information should be kept confidential.

As a guiding principle, we could apply a ‘public interest test’ whereby the onus is on governments to make all information public — unless there’s a compelling case to be made that disclosing information would not be in the public interest. Confidentiality would only be acceptable, for instance, where disclosure would compromise the ability of cabinets to make informed decisions, or where it would jeopardize public safety or security, personal privacy protections, or sensitive commercial transactions. We could also require legislators on parliamentary committees that deal with sensitive subject matter to have security clearances, or swear a secrecy oath, as they do on United States House or Senate committees.

Access to information systems need a rethink. The Ontario legislation, which lays out a set of specific ‘exemptions’ from information disclosure, creates the incentive for political staff or public servants to find reasons to withhold. The dual role of the Information and Privacy Commissioner should be reviewed. Most importantly, in the digital age, any system built around providing paper records in manila envelopes probably needs to be modernized.

It is promising that efforts are being made to create more open and participatory government. I firmly believe that renewing our democracy will require a more meaningful, active and ongoing role for citizens. But we need to be clear about the objectives of ‘open government’.

There has been a great deal of focus on the mechanisms for public participation — from the traditional town hall to online consultations and smart phone apps. But there has been little discussion of the nature of the public input governments should seek, or the level of influence it should have on decisions. To take a recent example, what type of input and level of influence should the public have in technical and hugely expensive decisions like building new transit lines? Could too much public influence actually work against the public interest?

Finally, while Ontario’s Open Government initiative is a start, these discussions need to be convened outside of government. Because politicians, public servants and accountability officers all have vested interests in the current system, groups like public policy schools, think tanks — and even the media — need to take the lead.

André Côté is manager of programs and research at the Institute on Municipal Finance and Governance at the University of Toronto’s Munk School of Global Affairs. He was an advisor to the deputy minister in the Ontario Ministry of Finance.

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