ninjas] What Do They Know
Summary
- There are 5 posts — by 4 authors — in this topic.
- Latest post made by gnat at 2009 Sep 17 08:07 NZST
Julian Carver wrote: > I think it's unlikely it'd get changed to a natural person, but reading the > above probably does mean that for an NZ 'What Do They Know' to work there'd > need to be an incorporated organisation which in effect submitted requests > on behalf of natural persons. Am I reading that correctly? > Yup. > > Also, is there anything in the Act that prevents publication of the > information received in an OIA request? I have a colleague who seemed to > think that was the case. > Not in the Act, but I believe some agencies have muttered stuff about "copyright" and such in an attempt to put the frighteners on. I don't have examples off the top of my head. > At the hackfest we set up an online group for the project, so maybe we could > shift the conversations there for those who are interested? > > http://groups.open.org.nz/groups/whatddotheyknow > > > I'll cross post this there to get us started. Nat and others please do come > and join us. Yup, good idea
~mark
> On 16 Sep 2009, at 6:02 PM, Mark Harris wrote: > > Julian Carver wrote: > >> I think it's unlikely it'd get changed to a natural person, but >> reading the >> above probably does mean that for an NZ 'What Do They Know' to work >> there'd >> need to be an incorporated organisation which in effect submitted >> requests >> on behalf of natural persons. Am I reading that correctly? >> > Yup. Oh look! A pretty serious issue which straddles the legal/site-design boundary! Perhaps we better have a means for considering such issues before we raise money to pay for someone to finish writing code? WDTK in the UK does *not* make the FOIA/OIA request to the agency, the individual using the site does. There are good reasons for this. First, the UK law does not have the citizenship and residence criteria for being eligible to make a request that the older NZ OIA does. So, for example, if you want to find out what the UK government has been doing on an issue like, say ACTA, there's nothing stopping you (or anyone else in the world) using WDTK to file a request to the Department for Business, Innovation & Skills, or the Foreign & Commonwealth Office (depending on who you determine is likely to have been the lead government department) to ask for the relevant information. An NZ version of WDTK *might* want to consider having an incorporated organisation behind it so as to be the entity that files the requests to the agencies. This would circumvent the problem of who is eligible to file OIA requests in NZ, and open up NZ government agencies to receiving requests from those who would not otherwise be able to use the law here (basically non-New Zealanders who are outside the country abroad). This might be a small number of people in reality, but the issue in principle might well vex some people in government, who might then respond in the way Mark suggested earlier, but could do the opposite and change the law so that anybody anywhere can file a request under the OIA. This would be a 'win' for the site in my view, but you shouldn't assume this will happen. Quite apart from anything else, some folk in government might say, "But why should the NZ taxpayer foot the bill for civil servants to do the work of processing an OIA request for a foreigner? This is a potentially unlimited liability." This leads on to the second good reason why WDTK in the UK does not make the FOIA/OIA request to the agency: money. The fees that agencies can charge the person or organisation making the request for certain aspects of processing the request. If the NZ WDTK site is the organisation making the request, it will have to pay any fees the agency decides to levy in accordance with the agreed fees regime. In the UK the fees are set in a Statutory Instrument (secondary legislation), here they are not so hard and fast, but generally will need to be in accordance with the Charging Guidelines published by the Ministry of Justice (http://tinyurl.com/kjtfcg). In many, many cases in NZ and the UK, the agency does not use its ability to make a charge. But sometimes they do. And they probably make use of this ability more frequently when they receive lots of requests from the same person: charges are quite clearly understood to be a deterrence mechanism against requesters tying up an unreasonable amount of civil servants' time on finding information for requesters. (You can make all the arguments you like about information being better organised and thus findable within government that you like, but that's the hard reality of it for the forseeable future.) Who is liable to pay any charges for the processing of the request therefore affects the question of how you design your FOIA/OIA request-making site. If an incorporated organisation running the site makes the request, it must pay the fees, and will have to obtain the money from the individual that logged on to the site to use it to make a request (or must have a potentially unlimited amount of money to spend paying the fees for other people). The organisation/site will then have to get into the business of getting money off the requester it is acting as proxy for and paying it over to the relevant agency. Or it will be asked by the requester it is proxy for to contest the requested fees with the Ombudsmen. Or the requester will abandon their request (probably quite a frequent outcome). But the requester is actually the organisation behind the site, right? So what happens when the 'real requester' walks away, and the organisation running WDTK-NZ is left with lots of abandonded OIA requests on its site - or, more importantly, in its name with the relevant government agency? Do you think it is going to do the organisation's reputation much good with that agency when it keeps initiating OIA requests but then abandoning them when fees become an issue? Will the site be perceived a useful civic app for enhancing accountability and public participation in the nation's democracy, or as a pest that wastes civil servants' time and taxpayers' money? If you decide that you don't like this scenario, then you're back to a site like the UK version of WDTK, where it is a gateway enabler for individual people and organisations to make requests, and be liable for the fees directly. But then you have to confront the issue of verifying that the person using your gateway to file a request is in fact entitled under the OIA to make a request. I'd suggest this is a non-trivial issue. Or you could ignore the issue and leave it to the responding agency to challenge the eligibility of the requester if it feels like doing so. But do you then want people having to verify their identity on a site which is configured to publish all the correspondence between requester and agency? The forthcoming review of the OIA by the Law Commission will be an opportunity for people to make the case that it is time for NZ to remove citizenship/location constraints on who can make requests under the OIA and LGOIMA. But even if the Commission were to agree with such an argument, there are still those in government who will make the cost argument against allowing foreigners to routintely make use of the Act. (The fact that those who are really motivated can already ask a friend/hire a law firm to make the request for them may not count for much.) Hopefully this demonstrates why it is not just a couple of day's coding work to sort out how the site should function. >> >> Also, is there anything in the Act that prevents publication of the >> information received in an OIA request? I have a colleague who seemed >> to >> think that was the case. >> > > Not in the Act, but I believe some agencies have muttered stuff about > "copyright" and such in an attempt to put the frighteners on. I don't > have examples off the top of my head. I refer readers to section 48 of the Official Information Act (http://tinyurl.com/oyht8w): 48 Protection against certain actions (1) Where any official information is made available in good faith pursuant to this Act,— (a) no proceedings, civil or criminal, shall lie against the Crown or any other person in respect of the making available of that information, or for any consequences that follow from the making available of that information; and (b) no proceedings, civil or criminal, in respect of any publication involved in, or resulting from, the making available of that information shall lie against the author of the information or any other person by reason of that author or other person having supplied the information to a department or Minister of the Crown or organisation. (2) The making available of, or the giving of access to, any official information in consequence of a request made under this Act shall not be taken, for the purposes of the law relating to defamation or breach of confidence or infringement of copyright, to constitute an authorisation or approval of the publication of the document or of its contents by the person to whom the information is made available or the access is given. Section 48(2) is the key part. If you get information disclosed to you as a result of making a request under the OIA, you are *not* authorised to publish the document or its contents if that would be an infringement of copyright (or a breach of confidence). The fact that I've never come across an agency attempting to use 48(2) to prevent re-publication of the information obtained as a result of an OIA request doesn't mean a site like WDTK-NZ wouldn't potentially run into trouble with it. I think you'll find from contacting MySociety in the UK that some public authorities there have been pretty keen on attaching fearsome-looking copyright notices to the information they disclose in response to a request. Whether any of them then actually take action if they feel there's been a breach is another matter, but I don't think WDTK-NZ should pretend this issue doesn't exist. Again, it might be worth raising with the Law Commission in due course.
>> At the hackfest we set up an online group for the project, so maybe >> we could >> shift the conversations there for those who are interested? >> >> http://groups.open.org.nz/groups/whatddotheyknow >> >> >> I'll cross post this there to get us started. Nat and others please >> do come >> and join us. > > Yup, good idea > > ~mark Yes, please, let's discuss these legal/political/financial/site design issues in at least a semi-organised fashion before a site is sprung upon the world. The issues canvassed in this email are just the beginning, so a 'JFDI' approach is unlikely to be successful. MySociety have been successful because they don't 'JFDI'. You don't get to run the petitions website for the Prime Minister, or chair a government-funded taskforce on opening up government data by blundering about with disruptive websites: you launch your disruptive websites after very carefully thinking through the legal and public management issues involved. Andrew (personal views, not those of my employer, etc etc)
Y. Thong Kuah wrote: > Which brings us back to original question? What is the initial aim of WDTK > NZ? I submit that we can't do all the things mentioned in previous posts in > a timely fashion, if we are going to release early, release often. My original aim, in suggesting the OIA Registry at the BarCamp, was for something that: a) enabled citizens to initiate an OIA request: 1) via an interface that removed the intimidation factor 2) protected them from any flowback from the agency 3) enabled their question to be examined and refined by people who know the best way to ask such questions, if required b) tracked the progress of OIAs through agencies in terms of: 1) time taken to answer 2) excuses made for not answering 3) transfers, statuses, bullying from agencies to withdraw or reduce the scope of questions (yes it does happen) 4) *published* the status of a request and its progress through the system c) retained and published a copy of the answer to the inquiry: 1) with any supporting documentation, however "redacted" in a machine readable format 2) with relevant metadata so that information was easily searchable for future enquiries or available for other mashups 3) which would eventually reduce the onus of answering duplicate questions that is currently on the agencies 4) which would reveal to them the beauty of being open ;-) WDTK-UK does a)1, some of c) but precious little of b), as far as I know. I'll take correction on that from someone who's worked with the system. Release early and often doesn't work with government - it's foreign to their nature. There's an old development truism - you can have it fast, cheap or right - pick any two. We don't have the resources for expensive so it has to be cheap. So the choice is between right, or right now. My argument is that "right now" will scuttle the effort. It needs to be right or government will find ways to not play with us.
~mark
On Wed, Sep 16, 2009 at 10:35 AM, Andrew Ecclestone <email obscured>> wrote: > I think you'll find from contacting MySociety in > the UK that some public authorities there have been pretty keen on > attaching fearsome-looking copyright notices to the information they > disclose in response to a request. Whether any of them then actually > take action if they feel there's been a breach is another matter We've had several authorities refuse to release information on the basis that it will be automatically republished and therefore they can't, in good faith, provide a response where they know copyright will be infringed. There are a couple of cases before the Information Commissioner at the moment on whether that's true or not, but these things tend not to progress so quickly... http://www.whatdotheyknow.com/request/online_petitions_documents_from is an example of one such exchange. The strangest approach so far has been Southampton University, who now wrap their responses in a PDF security layer that forces you to declare that you are actually the person who made the request before it'll unlock! http://www.mysociety.org/2009/09/12/southampton-uni-reluctant-to-set-information-free/
Tony
[Replies redirected to the mailing list specifically for WDTK] On 16/09/2009, at 8:35 PM, Andrew Ecclestone wrote: > You're back to a site like the UK version of WDTK, where it is a > gateway enabler for individual people and organisations to make > requests, and be liable for the fees directly. This is the model I've been assuming we'd built, for all the reasons you gave. > But then you have to confront the issue of verifying that the person > using your gateway to file a request is in fact entitled under the > OIA to make a request. I'd suggest this is a non-trivial issue. Or > you could ignore the issue and leave it to the responding agency to > challenge the eligibility of the requester if it feels like doing > so. But do you then want people having to verify their identity on > a site which is configured to publish all the correspondence between > requester and agency? This feels like a rare response, not a common one. To deal with it, I'd be happy to have a "send a reply to the agency, but don't make it public" option, so the fact that the requester communicated with the agency (presumably providing proof of identity) is recorded but the content is not. Subsequent correspondence could then be flagged as "may contain personal information" and have to be approved by moderators before being made public. > infringement of copyright I would be perfectly comfortable dealing with this in the same way that the UK site does: "Our Freedom of Information law is "applicant blind", so anyone in the world can request the same document and get a copy of it. If you think our making a document available on the internet infringes your copyright, you may contact us and ask us to take it down. However, to save tax payers' money by preventing duplicate requests, and for good public relations, we'd advise you not to do that. " > Whether any of them then actually take action if they feel there's > been a breach is another matter, but I don't think WDTK-NZ should > pretend this issue doesn't exist. It exists, but one of the points of a site like this is to expose dickish behaviour. I don't expect a lot of dickish behaviour, and I expect it to vanish when it becomes clear that everyone can see and recognise the dickish behaviour for what it is. I certainly don't think we shouldn't proceed simply because there might be dickish behaviour ahead. Has everyone seen the UK site? Perhaps we could take that as the baseline and then talk about how and why the NZ site might be different. That seems like a more constructive and useful approach to the problem of scope, rather than cataloguing all the ways in which one could misdesign it or it could fall foul of obstruction and malevolence. Mark Harris wrote: > Release early and often doesn't work with government - it's foreign to > their nature. I think you're assuming that the government department is the primary customer. I see them as a secondary customer: first we have to make something useful to citizens. When a lot of people use it, it has secondary benefits to government (see who's fast and who's not, cutting down on duplicate requests) but they only kick in once we've built something useful to citizens. Tom Steinberg's philosophy is very definitely and very clearly to build things for people, for citizens. Build something that's useful to and meets the needs of real people, and you'll have a large and supportive audience who will immediately be able to see the benefits of transparency. They'll take your side if push comes to shove, and will make you stronger for it. He specifically cautioned me against building something exclusively for government workers. Inward-facing projects have all the opposition of anything new, and few supporters in any position to help you. I like Mark's list of features. The real question is: do you need every feature perfect before you launch? I say: no. If it's launched with the customer-facing UK features, it's immediately useful and will make the people who use it happy. Once it's up and running, with people using it, then we can add features--every new feature making more happy people.
Thoughts? Nat
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