Rights-Based and Tech-Driven: Open Data, Freedom of Information, and the Future of Government Transparency.

Author:Noveck, Beth Simone

Open data policy mandates that government proactively publish its data online for the public to reuse. It is a radically different approach to transparency than traditional right-to-know strategies as embodied in Freedom of Information Act (FOIA) legislation in that it involves ex ante rather than ex post disclosure of whole datasets. Although both open data and FOIA deal with information sharing, the normative essence of open data is participation rather than litigation. By fostering public engagement, open data shifts the relationship between state and citizen from a monitorial to a collaborative one, centered around using information to solve problems together. This Essay explores the theory and practice of open data in comparison to FOIA and highlights its uses as a tool for advancing human rights, saving lives, and strengthening democracy. Although open data undoubtedly builds upon the fifty-year legal tradition of the right to know about the workings of one's government, open data does more than advance government accountability. Rather, it is a distinctly twenty-first century governing practice borne out of the potential of big data to help solve society's biggest problems. Thus, this Essay charts a thoughtful path toward a twenty-first century transparency regime that takes advantage of and blends the strengths of open data's collaborative and innovation-ceritric approach and the adversarial and monitorial tactics of freedom of information regimes.

TABLE OF CONTENTS INTRODUCTION I. HOW OPEN DATA DIFFERS FROM FREEDOM OF INFORMATION POLICY A. Differences in Timing B. Differences in Information Types C. Differences in Audience II. THE OPEN DATA MOVEMENT: THE FUEL FOR DATA-DRIVEN ACTIVISM A. History of U.S. Federal Initiatives in Open Data B. Other Governments, Corporations, Civil Society: The Open Data Movement Takes Hold III. FROM DATA TO ACTION: OPEN DATA'S IMPACTS A. Analytical Opportunities. Identifying Inequities and Inefficiencies by Measuring Past Performance Targeting Allocation of Scarce Resources Predicting Outcomes B. The Social Impacts of Open Data Improving Governmental Accountability Improving Accountability of Private Actors Enhancing Consumer Choice Through Smart Disclosure Promoting Entrepreneurship Saving Lives and Solving Problems IV. THE MORAL DATA ECONOMY: OPEN DATA, HUMAN RIGHTS, AND DEVELOPMENT A. Facilitating Empirical Social Science, Investigative Journalism, and Consumer Protection B. Advancing Civil Rights and Other Public Interest Litigation by Revealing Disparate Impacts C. Assessing the Effectiveness and Fairness of Institutions of Justice D. Uncovering Human Rights Abuses E. Reducing Abuse and Enhancing the Impact of Development Assistance V. OPEN DATA AND FOI A: COMPLEMENT NOT REPLACEMENT A. Open Data's Potential Shortcomings Challenge 1: Political Will Challenge 2: The Lack of a Right of Action Challenge 3: Data Invisibles Challenge 4: Prioritization B. Proposals for Enhancing Both FOI A and Open Data Proposal 1: Merge Open Data with FOIA Collection and Publication Mechanisms Proposal 2: Publish All Information Requested Pursuant to Either Freedom of Information or Open Data Law in Machine-Readable Formats Proposal 3: Increase Dialogue Between Officials Responsible for FOIA and Those Responsible for Open Data Proposal 4: Create and Store Data Digitally in a Searchable Cloud. VI. CONCLUSION INTRODUCTION

Created by the Mexico Institute of Competitiveness (IMCO), Mejora Tu Escuela (1) is an online platform that makes government data about Mexico's schools publicly available. The website provides parents with comparative data so that they can compare their own school's results to others, thereby empowering them to demand better-quality education for their children. It publishes expenditure data, giving activists, administrators, policymakers, and journalists the means to dig deeper, to spot fraud and corruption, and to advocate for change. This is exactly what happened in 2014, when a report by IMCO revealed that over 1,400 teachers on public school payrolls were supposedly older than a hundred years old (with most having the same birthday) (2) and that many earned more than the president of Mexico. (3)

No, the school board had not discovered Ponce de Leon's Fountain of Youth. Rather, the story of Mejora Tu Escuela illustrates how, when government makes information free of charge and readily downloadable in digital form, such open data can inform citizen engagement and activism. With the availability of information in machine-readable formats, those with technical knowhow, whether they are the data owners or not, can create tools, models, and analyses that enable empirical insights and data-driven solutions to societal problems. (4)

In this case, federal authorities had required states to provide information about the condition of schools, payrolls, and other expenditures. (5) But it was civil society activists at IMCO who created the platform to make that information accessible to citizens and who also scrutinized that information, (6) ultimately exposing rampant malfeasance that was previously hidden. Although the government initially prevaricated, claiming clerical error, the ensuing media frenzy over the website helped to prompt reform and a shift of responsibility over education from states to the federal government. Ultimately, the activists and the federal bureaucracy worked in parallel, addressing this local-level corruption and acting to improve Mexico's schools. (7)

By fostering greater public engagement and collaboration, open data represents a major governing innovation in the twenty-first century and a potentially important tool for advancing human rights and saving lives. Although open data undoubtedly builds upon and grows out of a fifty-year legal tradition of freedom of information and the right to know about the workings of one's government in a democracy, open data does more than advance government transparency. Rather, it is a distinctly twenty-first century approach borne out of the potential of big data to help solve society's biggest problems.

Although Freedom of Information Act (FOIA) requestors are also those clamoring for government information in order to solve a problem, open data works differently than traditional right-to-know strategies as embodied in FOIA legislation. FOIA is an inherently adversarial tactic focused on prying secrets out of government. Open data is not. Openly publishing the information instead attracts collaboration by knowledgeable and passionate members of the public, who augment the manpower and skills often lacking in under-resourced public institutions.

Because governments in an open data regime must proactively publish their data with the intent that people use it, the normative essence of open data is participation rather than litigation. By catalyzing public engagement--both scrutiny of data by the public and collaboration with the public in building new analytical tools and websites--open data is, in and of itself, profoundly shifting the political economy of transparency and changing the relationship between the public and the state vis-a-vis information. If, as David Pozen suggests, FOIA is deeply reactionary and advances neo-liberal ends by tying up the machinery of the regulatory state, (8) by contrast, the open data legal framework may be advancing participatory democracy.

Whereas FOIA promotes deliberative discourse about what government did, open data anticipates what institutions and citizens can do together to create value of different kinds, especially to advance evidence-based policymaking and co-creation of solutions to hard problems. Whereas FOIA describes a process for identifying what data to publish, open data describes a set of technology standards that determine how to publish information. (9) Whereas FOIA is rights-based, open data is technology driven. As a result, while freedom of information activists usually come from the good government or human rights communities, open data activists, at least in these early days of the movement, have often been technology-savvy "civic hackers" with a different set of skills and approaches. (10)

By shifting the underlying theoretical understanding of the relationship between the state and the public from the adversarial to the collaborative, open data both complements and complicates our reliance on FOIA as the bedrock of the public's right to know about the workings of government. FOIA is rooted in a narrative about hard-won transparency increasing governmental accountability, but this has not always borne itself out in practice, (11) as FOIA has been fraught with problems and limitations. Delays in responses and redactions frustrate information seekers, while the volume of requests, including politically-motivated nuisance requests, bedevils government agencies. (12)

In addition, since the era of modern FOIA regimes began with the United States' adoption of the Freedom of Information Act in 1966, (13) rates of trust in government around the world have steadily declined to all-time lows. (14) This may not be coincidental: because FOIA is used in adversarial situations, FOIA tends to highlight the worst of government by demonstrating how public officials have tried to hide misdeeds. It emphasizes malfeasance, invariably shaping public perception of government. In addition, the bulk of FOIA requests in the United States have come primarily from corporations using them as tools to advance their business interests rather than from investigative journalists or NGOs. (15) Potentially "flawed beyond repair," (16) as Pozen writes, FOIA may foster litigation without better government to show as a result.

Open data and FOIA bear many similarities, but open data places at the center not the right to know but rather innovation--in addressing public challenges and engaging with citizens. To be clear, open data will not be a panacea for all social...

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