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

Sat Apr 16 18:53:30 UTC 2011

Brian,

I did a research paper related to these issues you may be interested in. The
paper argues for taking advantage of new technology to move from a
"request-response" FOIA mode of transparency to a proactive disclosure, open
government, paradigm.

Under the Massachusetts public records act, computer files are considered
public. So I filed a request for GIS data from our 351 municipalities and
wrote about some of the ensuing legal and technical issues. Basically, only
two towns refused to give me the files, but the biggest legal issue I
identified was overly restrictive public data licenses that may prohibit
innovative re-uses in apps and for analysis. I also discussed some of the
technical issues about how to make data available, and the fact that
municipal fragmentation mean the towns have limited capacity.

The paper is under review by the URISA Journal, here is the draft version:
http://www.urisa.org/files/URISA-Final-RGoodspeed_0.pdf

Rob

--
Robert Goodspeed
PhD Student
M.I.T. Department of Urban Studies and Planning
rgoodspe at mit.edu
+1 202-321-2743

On Sat, Apr 16, 2011 at 2:44 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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