[open-government] Legal Barriers
Tracey P. Lauriault
tlauriau at gmail.com
Sat Apr 16 19:21:24 UTC 2011
I think lawyers are a barrier to open data, risk averseness being the big
part of that, I also think an overemphasis on cultural industries and a
lesser focus on science and R&D are a problem.
We have been trying to change the open data licenses in the cities in Canada
and our obstacles are the lawyers. We have CIPPIC with are a great public
interest legal team, but alas, there are only a few of them
http://www.cippic.ca/.
Below is a report being discussed at the City of Ottawa and we hope it will
influence the other open data cities, who are to meet to discuss this
file. What we need is a larger team of lawyers in government institutions
educated about these types of licenses. See the last two reports here -
http://www.cippic.ca/open-licensing/. It seems that institutional lawyers
are way behind the times when it comes to this type of license. Who
educates them?
<http://www.cippic.ca/open-licensing/>Also, a team of federal public servant
Canadian lawyers put together unrestricted user licenses. It was a good
work around of crown copyright, and ground breaking for Canada, but the
least risky solution and not necessarily in the public interest, certainly
recognized international open licenses would have been more helpful
http://geogratis.cgdi.gc.ca/geogratis/en/licence.jsp.
Also, who argues for the public interest in Westminster countries when
citizens are subjects to the crown?
<http://geogratis.cgdi.gc.ca/geogratis/en/licence.jsp>There is a dearth of
licenses and intelligence about law and data, and it would be good to get
hipsters less focussed on songs and more focussed on what most economies run
on - data for R&D, data about resources, data associated with science, data
associated with navigation, data about demographics, data in the field of
geomatics, data about mining and contaminants, and remote sensing, and etc.
Copyright advocates focus on cultural industries, but we have few, working
on science.
Perhaps not a popular position, but I do believe these are our two biggest
barriers, risk averse lawyers and an over emphasis on cultural industries
and not science in the licensing discourse, and it would be fantastic, if
the legal barriers could be replaced by legal bridges.
We will need teams of progressive lawyers to work in the public interest to
do so and we will need them to educate institutional lawyers and to re-look
at the constitutional arrangements between citizen and state.
On Sat, Apr 16, 2011 at 2:55 PM, <open-government-request at lists.okfn.org>wrote:
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> 1. Re: [CityCamp Exchange] legal barrier to open government
> (Brian Gryth)
> 2. Re: [CityCamp Exchange] legal barrier to open government
> (Brian Gryth)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Sat, 16 Apr 2011 12:44:59 -0600
> From: Brian Gryth <briangryth at gmail.com>
> Subject: Re: [open-government] [CityCamp Exchange] legal barrier to
> open government
> To: Stephen LaPorte <stephen.laporte at gmail.com>
> Cc: citycamp at forums.e-democracy.org, open-government at lists.okfn.org,
> opengovinitiative at googlegroups.com
> Message-ID: <BANLkTi=+dVJ=8YCcdbOwOE75qhxV5FkUuA at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> Stephen,
>
> Thank you much. I will read the Bojorquez and Shores article. (Anyone
> interested in the article here is a link to a copy
> http://texasmunicipallawyers.com/pdf/OpenGovt-theNet-TTAdmin-Fall09.pdf.)
>
> It seems paradoxical that Open meeting laws would be a barrier, but I would
> agree that they maybe interpreted as you suggest and as the Florida AG
> opinion states. For anyone not familiar with the argument, the main
> barrier
> is the notice requirement that requires decision making members of an
> public
> body to give notice of meetings when those decision makers are going to
> discuss a topic of government business. So in the Florida AG opinion, AG
> found that if two city council members engage in an exchange on Facebook
> then the Florida open meeting law applies because if two or more members of
> the council discuss a matter of public concern then notice must be provided
> of the meeting. So even if the discussion was initiated by a citizen, the
> members of the council cannot discuss the matter without providing notice
> of
> the discussion. So the end result is a potentially open discussion between
> the public and members of the city council are foreclosed because of the
> state's open meeting law. (Make sense?)
>
> As for contracting issues, I am fortunate to be presenting on the same day
> as another attorney is presenting on cloud computing contracting issues.
> So
> he will hopefully cover most of the computing issues. My focus is on open
> government efforts in general and to provide pointer to the things
> government attorney need to keep in mind when advising government leaders
> on
> how to proceed with a open government effort. (If interested the program
> promotional material are at
> http://www.cobar.org/cle/photos/ProgramPages/CGAIT.htm. Once the program
> has been recorded the session will be available for purchase individually
> from CLE in Colorado).
>
> Thanks,
> Brian
>
>
>
>
>
>
>
>
>
> On Fri, Apr 15, 2011 at 6:14 PM, Stephen LaPorte
> <stephen.laporte at gmail.com>wrote:
>
> > Brian,
> >
> > Not barriers per se, but attorneys will have questions about the exact
> > scope of open government laws. For example, a public employee's Facebook
> or
> > Twitter message can violate Texas' Open Meetings Act. See Alan J.
> Bojorquez
> > & Damien Shores, Open Government and the Net: Bringing Social Media into
> the
> > Light, 11 Tex. Tech Admin. L.J. 45, 61 (2009). The Attorney General of
> > Florida posts a yearly manual for the Florida Sunshine Law, which
> > illustrates some of these questions: What activity is within the scope of
> > the law? Who must comply? What are the procedural requirements? <
> > http://www.myflsunshine.com/sun.nsf/sunmanual>
> >
> > Complying with open governance laws may have some influence on contracts
> > with IT vendors. One attorney suggests four general questions for a
> vendor:
> > Where is my data? How do I access my data? How secure is my data? How
> > portable is my data? <
> > http://www.govtech.com/pcio/Cloud-Computing-Four-Questions-to-Ask.html>
> >
> > Cheers,
> > Stephen
> >
> > On Apr 15, 2011, at 3:07 PM, Alissa Black wrote:
> >
> > Brian -
> >
> > Definitely check out civiccommons.org for information
> > on existing policies/directives/initiatives.
> >
> > I would say legal barriers should be minimal for transparency (if you use
> > non-sensitive data), and non existent for the others. If legal comes into
> > play for "open" gov it will most likely because because of discomfort. In
> > that case you can point to local open gov efforts in SF, Vancouver, and
> > maybe others you find on civic commons.
> >
> > Alissa
> >
> > On Fri, Apr 15, 2011 at 11:36 AM, Brian Gryth <briangryth at gmail.com
> >wrote:
> >
> >> Good day all,
> >>
> >> I am preparing for a talk on open government that I will give in a
> couple
> >> of
> >> weeks. The audience is government attorneys and IT managers. So I
> >> thought
> >> I'd crowd source the answer to a few of questions to you all in the open
> >> gov/gov 2.0 community:
> >>
> >> What are the biggest legal barriers to open government efforts?
> >> What are the biggest legal barriers to transparency?
> >> What are the biggest legal barriers to participation?
> >> What are the biggest legal barriers to collaboration?
> >>
> >> If you have examples of specific laws or policies that would be great.
> I
> >> know everyone will be tempted to say attorneys, which is fine, just tell
> >> me
> >> why?
> >>
> >> Once I get my materials together, I will share them as soon as possible.
> >> Thanks in advance.
> >>
> >> Cheers,
> >> Brian
> >>
> >> Brian Gryth
> >> Capital Hill, Denver
> >> About Brian Gryth:
> http://forums.e-democracy.org/p/6lPv5c4wfouTQ0Nyv292Rv
> >>
> >> View full topic, share on Facebook, Twitter, etc:
> >> http://forums.e-democracy.org/r/topic/577LoIW7y6N6LvXCGByDfs
> >>
> >>
> >> Help our volunteers in Christchurch, New Zealand with post-quake forum
> >> outreach:
> >> http://e-democracy.org/chchdonate
> >>
> >> - - - - - - - - - - - - - - - - - - - - - - - -
> >> To post, e-mail: citycamp at forums.e-democracy.org or "Reply-to-All" to
> >> post publicly.
> >> To leave or for daily digest, type "unsubscribe" OR "digest on" in
> >> subject instead.
> >>
> >> Forum home: http://forums.e-democracy.org/groups/citycamp
> >> - - - - - - - - - - - - - - - - - - - - - - - -
> >> Need help? http://e-democracy.org/support Hosting thanks:
> >> http://OnlineGroups.Net
> >> Follow us on Facebook: http://facebook.com/edemocracyorg
> >>
> >
> >
> >
> > --
> > Alissa Black | Government Relations Director
> > 415.625.9635 | @alissa007
> >
> >
> >
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> ------------------------------
>
> Message: 2
> Date: Sat, 16 Apr 2011 12:54:57 -0600
> From: Brian Gryth <briangryth at gmail.com>
> Subject: Re: [open-government] [CityCamp Exchange] legal barrier to
> open government
> To: opengovinitiative at googlegroups.com,
> citycamp at forums.e-democracy.org,
> open-government at lists.okfn.org
> Message-ID: <BANLkTi=DEWz0C6wLJLT=NCy0T2p-_J1uGA at mail.gmail.com>
> Content-Type: text/plain; charset="iso-8859-1"
>
> So just to follow up with the group on my thoughts:
>
> Here is my list of potential legal barriers:
>
> Open Meeting Laws
> Open Records Laws/Records Retention (here I am think of all the exceptions
> to the open record rules and defining what a record is.)
> Procurement/Appropriations
> Privacy (protection of PII and other sensitive information related to
> citizen)
> Section 508 compliance
> Security/Unauthorized disclosure (The video Alex pointed to raises the
> issue
> of an employee inadvertently exposing his or herself to violation a
> disclosure law by saying something on a social media site).
> Intellectual Property
> The regulation of speech in a public or semi-public forum.
>
> Further thoughts?
>
> Thanks all for the help. Keep the information coming.
>
> Cheers,
> Brian
>
>
> On Sat, Apr 16, 2011 at 12:44 PM, Brian Gryth <briangryth at gmail.com>
> wrote:
>
> > Stephen,
> >
> > Thank you much. I will read the Bojorquez and Shores article. (Anyone
> > interested in the article here is a link to a copy
> > http://texasmunicipallawyers.com/pdf/OpenGovt-theNet-TTAdmin-Fall09.pdf
> .)
> >
> >
> > It seems paradoxical that Open meeting laws would be a barrier, but I
> would
> > agree that they maybe interpreted as you suggest and as the Florida AG
> > opinion states. For anyone not familiar with the argument, the main
> barrier
> > is the notice requirement that requires decision making members of an
> public
> > body to give notice of meetings when those decision makers are going to
> > discuss a topic of government business. So in the Florida AG opinion, AG
> > found that if two city council members engage in an exchange on Facebook
> > then the Florida open meeting law applies because if two or more members
> of
> > the council discuss a matter of public concern then notice must be
> provided
> > of the meeting. So even if the discussion was initiated by a citizen,
> the
> > members of the council cannot discuss the matter without providing notice
> of
> > the discussion. So the end result is a potentially open discussion
> between
> > the public and members of the city council are foreclosed because of the
> > state's open meeting law. (Make sense?)
> >
> > As for contracting issues, I am fortunate to be presenting on the same
> day
> > as another attorney is presenting on cloud computing contracting issues.
> So
> > he will hopefully cover most of the computing issues. My focus is on
> open
> > government efforts in general and to provide pointer to the things
> > government attorney need to keep in mind when advising government leaders
> on
> > how to proceed with a open government effort. (If interested the program
> > promotional material are at
> > http://www.cobar.org/cle/photos/ProgramPages/CGAIT.htm. Once the
> program
> > has been recorded the session will be available for purchase individually
> > from CLE in Colorado).
> >
> > Thanks,
> > Brian
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > On Fri, Apr 15, 2011 at 6:14 PM, Stephen LaPorte <
> > stephen.laporte at gmail.com> wrote:
> >
> >> Brian,
> >>
> >> Not barriers per se, but attorneys will have questions about the exact
> >> scope of open government laws. For example, a public employee's Facebook
> or
> >> Twitter message can violate Texas' Open Meetings Act. See Alan J.
> Bojorquez
> >> & Damien Shores, Open Government and the Net: Bringing Social Media into
> the
> >> Light, 11 Tex. Tech Admin. L.J. 45, 61 (2009). The Attorney General of
> >> Florida posts a yearly manual for the Florida Sunshine Law, which
> >> illustrates some of these questions: What activity is within the scope
> of
> >> the law? Who must comply? What are the procedural requirements? <
> >> http://www.myflsunshine.com/sun.nsf/sunmanual>
> >>
> >> Complying with open governance laws may have some influence on contracts
> >> with IT vendors. One attorney suggests four general questions for a
> vendor:
> >> Where is my data? How do I access my data? How secure is my data? How
> >> portable is my data? <
> >> http://www.govtech.com/pcio/Cloud-Computing-Four-Questions-to-Ask.html>
> >>
> >> Cheers,
> >> Stephen
> >>
> >> On Apr 15, 2011, at 3:07 PM, Alissa Black wrote:
> >>
> >> Brian -
> >>
> >> Definitely check out civiccommons.org for information
> >> on existing policies/directives/initiatives.
> >>
> >> I would say legal barriers should be minimal for transparency (if you
> use
> >> non-sensitive data), and non existent for the others. If legal comes
> into
> >> play for "open" gov it will most likely because because of discomfort.
> In
> >> that case you can point to local open gov efforts in SF, Vancouver, and
> >> maybe others you find on civic commons.
> >>
> >> Alissa
> >>
> >> On Fri, Apr 15, 2011 at 11:36 AM, Brian Gryth <briangryth at gmail.com
> >wrote:
> >>
> >>> Good day all,
> >>>
> >>> I am preparing for a talk on open government that I will give in a
> couple
> >>> of
> >>> weeks. The audience is government attorneys and IT managers. So I
> >>> thought
> >>> I'd crowd source the answer to a few of questions to you all in the
> open
> >>> gov/gov 2.0 community:
> >>>
> >>> What are the biggest legal barriers to open government efforts?
> >>> What are the biggest legal barriers to transparency?
> >>> What are the biggest legal barriers to participation?
> >>> What are the biggest legal barriers to collaboration?
> >>>
> >>> If you have examples of specific laws or policies that would be great.
> I
> >>> know everyone will be tempted to say attorneys, which is fine, just
> tell
> >>> me
> >>> why?
> >>>
> >>> Once I get my materials together, I will share them as soon as
> possible.
> >>> Thanks in advance.
> >>>
> >>> Cheers,
> >>> Brian
> >>>
> >>> Brian Gryth
> >>> Capital Hill, Denver
> >>> About Brian Gryth:
> >>> http://forums.e-democracy.org/p/6lPv5c4wfouTQ0Nyv292Rv
> >>>
> >>> View full topic, share on Facebook, Twitter, etc:
> >>> http://forums.e-democracy.org/r/topic/577LoIW7y6N6LvXCGByDfs
> >>>
> >>>
> >>> Help our volunteers in Christchurch, New Zealand with post-quake forum
> >>> outreach:
> >>> http://e-democracy.org/chchdonate
> >>>
> >>> - - - - - - - - - - - - - - - - - - - - - - - -
> >>> To post, e-mail: citycamp at forums.e-democracy.org or "Reply-to-All" to
> >>> post publicly.
> >>> To leave or for daily digest, type "unsubscribe" OR "digest on" in
> >>> subject instead.
> >>>
> >>> Forum home: http://forums.e-democracy.org/groups/citycamp
> >>> - - - - - - - - - - - - - - - - - - - - - - - -
> >>> Need help? http://e-democracy.org/support Hosting thanks:
> >>> http://OnlineGroups.Net
> >>> Follow us on Facebook: http://facebook.com/edemocracyorg
> >>>
> >>
> >>
> >>
> >> --
> >> Alissa Black | Government Relations Director
> >> 415.625.9635 | @alissa007
> >>
> >>
> >>
> >
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--
Tracey P. Lauriault
613-234-2805
http://traceyplauriault.ca/
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