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

Sat Apr 16 21:59:04 UTC 2011

2011/4/17 Brian Gryth <briangryth at gmail.com>

> 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?
>

Brian

This list, and the prior discussion, seem very focused on the USA. Is that
the scope of your talk?

Over to you, but I wouldn't focus on specific areas of law so heavily. I
would use them of examples of broader themes.

*Legislative drafting*
Policy creates a (narrow) law which is intended to facilitate democratic
participation. The law is given a strict interpretation by the judiciary.
This in turn undermines the original intention of the legislation, to
facilitate democratic participation. From the outside, the open meeting
requirements seem absurd.

*Inconsistent legislation and/or policy*
Many laws intersect in this area. This makes it very difficult for
legislation to be consistently interpreted. Additionally, it can be
difficult for politicians creating legislation to create consistency.
Sometimes, it's hard to determine exactly what open government actually
means.

*Multiple policy objectives*
Even if parts of government would like to open, it meets inertia. Several
government-controlled agencies use fees and levies to service their
operations. This may have been established when another mode of operation
wasn't conceived. Constitutional legislation acts as inertia by design. Now
those agencies are in place, it is very difficult to shift to a new model.
*
*
*Licencing*
Many government agencies, in my experience mainly local governments, use
very restrictive licencing with associated fees. Each of those licences may
be slightly different. Every new licence adds compliance costs to third
parties seeking to make use of that information. Notionally, prices are set
on a cost recovery basis.

Regards

Tim McNamara  |  @timClicks <http://twitter.com/timClicks>  |
timmcnamara.co.nz
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