[open-government] [CityCamp Exchange] legal barrier to open government

Sat Apr 16 18:54:57 UTC 2011

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
>>>
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>>
>>
>> --
>> Alissa Black  | Government Relations Director
>> 415.625.9635 | @alissa007
>>
>>
>>
>
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