Information & Ethics Committee on Dec. 9th, 2010

[The Chair, Liberal, Shawn Murphy]

I call the meeting to order.

Welcome, everyone.

This, colleagues, is continuation of our ongoing study of open government.

Today the committee is very pleased to have before us Mr. Paul Macmillan, who's the partner and national industry leader with the accounting and consulting firm of Deloitte. From the University of Ottawa, we have Professor Michael Geist, Canada Research Chair of Internet and e-commerce law. We were actually expecting Mr. Eric Sauve, vice-president from Newsgator Technologies. He's not here yet, but we'll start without him.

What we do, Mr. Macmillan and Professor Geist, is ask for opening comments from you first.

We will start with you, Mr. Macmillan. The floor is yours. You have up to 10 minutes. We look forward to your comments.

[Paul Macmillan, Partner and National Industry Leader, Deloitte]

Thank you very much, and it's a pleasure to be here. Thank you very much for the invitation. I'm very glad to see the interest on the part of the committee on the topic of open government.

My role at Deloitte is to lead our public sector industry practice for Canada, so we have quite a lot of interactions with governments across the country.

Open government has been a growing trend since about 2007. It appeared first at the local level, fuelled by a few things such as increased data from systems such as 311 systems, which provided a lot more information on municipal services than was available before. Many municipalities, starting with the City of New York, as many of you would know, began to publish that information online on their websites in terms of service calls and the status of service calls. It was used by citizen activists, particularly in the U.S., who wanted to look for ways to combine public information and public data to get everything from transit maps to street repair information to a whole range of possible uses of public information, and of course, it was used by councillors who wanted to be able to communicate through social media with city constituents.

So we saw it first at the municipal level. Washington, D.C., was the vanguard, back around 2007. It was an early and big adopter of the idea of releasing public data. We have seen cities across the U.S. and Canada and internationally follow suit, but national governments have also gotten involved. The U.S. federal government, the U.K. government, and the Australian government in particular have launched very significant initiatives in terms of providing public data to citizens through sites such as Data.gov, which is a major data platform or data clearing house of the U.S. government.

In the U.S., for example, since January 2000 the U.S. federal government has released 305,000 data sets onto their site. Something like 256 applications have been developed by citizens, not-for-profits, and others utilizing those data. Many of you will know that the U.K. is releasing public accounts information on a site they call COINS. They have released several million data items related to public expenditure information. We began to write about this in about 2008, and I think some of you have the document that we've produced, called “Unlocking Government: How Data Transforms Democracy”, with its provocative subtitle.

In Canada the municipal level has been embracing open government for some time. We see that Toronto, Edmonton, Vancouver, and a number of other cities have opened data sites.

At the provincial level it has been a bit slower. B.C. has recently announced their open government initiative and recently ran quite a successful campaign in connection with what they called action against climate change. They released some 500 data sets across, I think, four or five ministries, ran a competition to get citizens to come up with creative ways to develop applications to use that information, had private companies sponsor the event, came up with a number of applications that were developed, and awarded prizes. Overall it was very successful in terms of engaging citizens.

At the federal level, data have been traditionally available from a number of different sources. Examples include Natural Resources Canada, with their geospatial data, as well as Stats Canada, Environment Canada, and others. However, there has not been as comprehensive an approach as we've seen in some of the other federal jurisdictions, and the idea of a central clearing house of data has not yet taken hold, although I would assume that's likely to be introduced.

The final comment I would make is that leading governments have really taken a view that public data should be viewed as a public asset--that this is information that citizens, businesses, not-for-profits, and others should have access to and should be able to utilize creatively in terms of looking to improve public services and as a way to encourage citizen engagement, investment on the part of business, and innovation broadly.

That's all I have by way of opening comments. I'd be happy to field some questions following my colleagues.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Macmillan.

Please go ahead, Professor Geist.

[Dr. Michael Geist, Canada Research Chair, Internet and E-commerce Law, University of Ottawa, As an Individual]

Thanks very much.

Good afternoon. My name is Michael Geist. I'm a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and e-commerce law. By way of background, I serve on the Privacy Commissioner of Canada's expert advisory committee and on a number of boards, including the board of the Canadian Legal Information Institute, which is funded by Canadian law societies to provide free access to law. I'm also the editor of this new book on Canadian copyright and Bill C-32, which includes several contributions that address access to public sector information. There is some overlap between some of the issues that we see taking place there and some of the issues you're thinking about.

That said, I appear today before this committee in my personal capacity. I am representing only my own views.

I'd like to thank the committee for the invitation to come and speak and also for taking on the open government issue. At a time when the digital economy strategy is gaining increasing attention, it is crucial to recognize that the federal government has an important role to play in the digital content realm by ensuring that its own content or the content produced on its behalf is readily and often freely available in digital form. After years of closed, walled-garden approaches, the world, as we've just heard, is embracing the benefits of openness, and as you've just heard and we know, a growing number of Canadian cities have adopted openness policies that establish a preference for open standards, open-source software, and open government.

I believe that the federal government should follow their lead. We've seen other countries do it, and do it quickly. In the United States there were 47 data sets available to the public in May 2009. As we just heard, a year and half later there are 305,000 of those data sets available. In Australia the government launched the Government 2.0 Taskforce in June 2009. The task force completed its work in less than a year, and the government responded in May of this year. All of this took place in the span of less than a year. The U.K. launched data.gov.uk at the start of this year. Today there are more than 5,000 data sets freely available and more than 100 apps that use the data to provide information on fuel and housing prices, air quality, and government spending.

However, rather than focusing my comments on the impressive achievements elsewhere, I thought I'd concentrate in my opening remarks on what might be seen as low-hanging fruit, two easy, low-cost or no-cost initiatives that could jump-start open government in Canada: crown copyright and CAIRS.

We'll start with crown copyright. It dates back to the 1700s. Crown copyright reflects a centuries-old perspective that government ought to control the public's ability to use official documents. Today crown copyright extends to 50 years from creation and requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission. While permission is often granted, it's not automatic. To obtain permission, the author or publisher has to provide details on the intended use, the format of the work, the specific website it's going to appear on online, and an estimate of the number of hard copies to be printed. If it's going to be sold commercially, they have to disclose the estimated selling price.

The Canadian approach stands in sharp contrast to what we see in the United States, where their federal government does not hold copyright over work created by an office or an employee as part of a person's official duties. Government reports, court cases, and Congressional transcripts can therefore be freely used and published. The existence of crown copyright affects both print and audiovisual worlds, and is increasingly viewed as a barrier to Canadian filmmaking, political advocacy, and educational publishing.

Beyond just the pure policy reasons for abandoning crown copyright, there are financial reasons for reform as well. The federal crown copyright system costs taxpayers hundreds of thousands of dollars each year. According to documents that I obtained under access to information from Public Works and Government Services Canada, which administers the crown copyright system, in the 2006-07 fiscal year crown copyright licensing generated less than $7,000 in revenue, yet the system cost more than $200,000 to administer. In most instances, Canadians obtained little return for this investment.

About 95% of crown copyright requests are approved, with requests ranging from archival photos to copies, and this is true of the Copyright Act itself. More troubling were the 5% of cases in which permission was declined. While in some instances the refusals stemmed from the fact that the government didn't have the rights to the requested work, there was one instance in which an educational institution asked for permission to reproduce a photograph of a Snowbird airplane, but was denied on the grounds that the photo was to be used for an article raising questions about the safety of the program. Similarly, a request to reproduce a screen capture of the NEXUS cross-border program with the United States was declined because it was to be used in an article that wouldn't portray the program in a favourable light.

The ability to wield crown copyright has also arisen with respect to actual takedown notices. For example, just last year the Auditor General sent takedown demands to The Globe and Mail and Scribd, an online publishing site, after the newspaper posted one chapter from one of her reports. The office argued that crown copyright applies and that a written request for permission on a case-by-case basis is required.

Leaving aside the fact that this is arguably fair dealing--it's news reporting and consists of just one chapter in a larger report--the notion that Canadians need advance permission to reproduce or post a portion of a government report, I think, runs counter to the Auditor General's own efforts at government transparency and efficiency.

Similar issues can also arise in the context of video, possibly with respect to these very proceedings. In the spring of 2007, Friends of Canadian Broadcasting, the well-known broadcasting advocacy group, began to post videos and podcasts of parliamentary committee proceedings on their website. When officials at the House of Commons caught wind of the activities, they sent a cease and desist letter demanding that the videos and podcasts be removed from the Internet. A lawyer from the House of Commons argued that posting excerpts from committee proceedings such as these could be treated as contempt of Parliament.

In an ideal world, this would be an issue that the Bill C-32 legislative committee would be addressing, since the abolition of crown copyright, as New Zealand has been proposing, would have been part of the copyright reform package. Since it isn't, I would argue that we ought to consider following the Australian model of leaving crown copyright in place but overlaying it with an open licensing approach. That would mean government would maintain copyright but would freely license the use of the work for reuse, with no need for further permission or compensation. Only attribution would be required.

Similar approaches have been adopted in the U.K., which has seen the development of an open government licence, while others have called for the creation of a crown commons licence. Whatever you call it, the approach would provide an efficient means of freeing up government works without the need for legislative change.

Second, I'd like to touch briefly on CAIRS and access to information. As this committee well knows, in 2008 the CAIRS database, which provided information on prior access to information requests, was discontinued. This committee passed a resolution calling for its reinstatement, and the Information Commissioner has done the same.

In 2009 I launched CAIRS.Info, a site that provides access to searchable PDF copies of the same information that was contained in the CAIRS database. I have sent requests to most government departments each quarter for a list of the most recent access to information requests. The resulting documents are then uploaded and can be searched by government department, date of request, or keyword. The site is still available, but it's now out of date. It has proven difficult to maintain, given the need for quarterly requests to dozens of government departments, followed by digitization and uploading of those materials.

I'd argue that the solution is obvious. Not only should we reinstate CAIRS, but we should also make the records from all access to information requests freely available online, in machine-readable format.

This follows the U.K. example. In October of this year, Minister for the Cabinet Office Francis Maude told a Conservative Party conference that their freedom of information act will be amended so that all data released must be in reusable and machine-readable format. The change in the U.K. will mean that freedom of information data will be, and I quote, “available to everyone and able to be exploited for social and commercial purposes”. I believe the closest we come to that in Canada right now is the Department of National Defence, which lists all completed access to information requests on its website and invites the public to request a copy informally at no cost. That's a start, but it's not as good as we can and should do.

In conclusion, this is by no means the full solution. Rather, it is a modest starting point. There's open data, open access to research, open source software initiatives, and many other possibilities. Like many others, I believe that our goal should be to maximize open government. In doing so, we reduce costs, unleash economic value, increase transparency, and generate greater public confidence in our democratic institutions. I look forward to your questions.

[The Chair, Liberal, Shawn Murphy]

Thank you.

Please go ahead, Mr. Sauve.

[Eric Sauve, Vice-President, Newsgator Technologies]

Thank you all for allowing me to appear in front of you. It's a nice treat. I've never spoken in such a beautiful room. I wonder if that fireplace works.

My name is Eric Sauve, and I'm vice-president at a local company called Newsgator. I suppose I'm here to represent an entrepreneurial voice in the discussion on why you would bother going down this road of open government.

In terms of my experience, I'm a vice-president at Newsgator. I was formerly the CEO of a company called Tomoye, which was recently acquired, and I sit on a few boards of start-up engineering companies that basically produce software.

My experience in the government space has been, over the last decade, in providing these types of software solutions to government, primarily in the United States but also to certain government agencies in Canada. I've had the privilege of being able to support probably about half a million government users working in the realm of collaborative government, open government, and that kind of stuff.

I was invited here to speak as an entrepreneur. My message for you today is that it's important to think about open government as an economic issue, not a political issue. Aside from access to information and all of these things advocacy organizations might be interested in with respect to the workings of government, in a modern economy, in an information economy, data are basically what creates companies.

One of the easiest examples to think of is Google. Google has no data. What it does is create a valuable service for people by using other people's data. It makes it readable. It does interesting things with it. It creates visualizations for it.

I would argue, and my experience is, that in fact open government should be viewed as a way to create economic wealth in this country. Information and data are really a kind of modern resource that companies can tap into to produce economic value and jobs.

What I'm going to do is walk you through just a couple of examples of interesting uses of open data that have created economic value.

There's a website called CrimeReports.com. For those who are not familiar with it, you can check it out online. Essentially, it takes local crime data, puts it on a map, and allows citizens to see what crime is happening in their area. A company was formed to provide that service, and that creates jobs.

Another example, which is a little bit more of a historical example but that I think is useful nonetheless, is the Weather Network. Companies don't collect data on weather. That's provided by the government. Of course, anyone who's on the Internet sees weather data everywhere. It's a big engine to draw people onto sites and keep them connected to sites. Of course, that can produce economic value in terms of the products they buy or the advertising they consume on the sides of those sites. I don't know exactly how many people work in the weather industry, but that industry certainly wouldn't be possible if it weren't for open data.

Another example, a more local example, is a website called Zoocasa.com. This is a site owned by Rogers Media, and it competes with the MLS site. Basically they take real estate listings and combine them with census data to provide a full picture of the neighbourhood people might want to move into. They see the house they want to buy, and then they can see the schools and maybe reports on how well those schools are doing. They can see the makeup, financial and otherwise, of the community they might move into. That's a really valuable service, because obviously it helps people to make more informed decisions about the houses they might buy.

The economic lens on that is increased competition. We all know that MLS is a site we all go to, and maybe it's a good idea if there are other sites. Economic value is created through competition. Of course, that competition is driven by producing that interesting value that consumers want to see. They want to see the full picture, as opposed to just what they get on MLS.

Another example is a company called PASSUR Aerospace. They take open air traffic control data and data that they collect as well about airplanes and their current trajectories and resell those data as a service to airline companies so that they can better predict when planes are going to land and, as a result, when they're going to take off. Of course, that has tremendous value to airline companies, because unless they can achieve the logistical perfection that's required to manage those huge operations, they're losing money all the time.

Google Maps is another and more famous example of value that's being created using government data. Another example, let's not forget, is the whole industry that has come out of GPS. It was Reagan's decision to basically make it possible for commercial entities to use GPS data, to get satellite signals and use them to create devices that.... Those of you who have phones may have bought an exercise app that uses GPS data. That's one small example of an industry created around data that were collected by government and made open for commercial gain.

In closing, I would say that I don't know a tremendous amount about government, but I think government has been essentially collecting data about all aspects of Canadians and Canadian topography—Canada, generally speaking—since Canada was created. The more we can start to think about making those data available and think about it from a perspective of economic value, jobs creation, and enterprise creation, the more we're doing a great service to the people of this country.

That's it.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Sauve.

Now we're going to go to the first round of seven minutes.

Ms. Bennett is first.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Thanks very much.

Llast Tuesday we heard that at certain conferences—the GTEC conferences, or whatever—at present the federal bureaucrats are not allowed to use the words “open government”; they're only allowed to use the words “open data”.

Could you explain what you think they think the difference is, and why one would be allowed and the other would not?

[Paul Macmillan]

Well, I'd have to think about it.

You'll notice that we used “data” in our subtitle. We did so because we thought that was getting to where the value was in terms of what citizens and businesses could use. We also use the term “unlocking of government”, because our view has been that most of this type of information has been squirreled away and locked up for quite some time at all kinds of levels within government. Even within government departments and ministries, there's not as much sharing of information inside government, let alone with the public outside, as you might expect.

One of the things that we think will be a useful and a significant byproduct of an “open data” or “open government” phenomenon—and I tend to use the terms interchangeably—is that as data are viewed more as a public asset than a ministry or departmental or government type of resource, there will be more sharing of information and more understanding of policy implications of various decisions within government than there would be otherwise.

My feeling is that many of the types of data we're now seeing shared publicly by other jurisdictions were not being shared internally; access to those is not common inside government. I think you'll see much more responsiveness and ability to analyze policy options, etc., by virtue of opening up these data sets, but I don't know why you would want to differentiate. I'm sure there are good reasons, but I wouldn't want to comment on what they might be.

[Dr. Michael Geist]

I think they are largely interchangeable. I actually think “open government” has been the more popular term from other governments, and I think part of it just comes down to marketing, quite frankly. Some governments have seen the marketing value in being portrayed as open and have latched on to the “open government” term, but the reality is that people in the area who are talking about what governments could and should be doing are largely talking about the same thing, whether they're talking about open government or open data.

From my perspective in Canada, I don't care what we call it, but we need to recognize that there's a certain amount of urgency here, when we contrast the pace at which we've been making change on some of these issues here in Canada with the pace of some of these other jurisdictions. Whether we call it open government or open data, we need to get on with the job.

[Carolyn Bennett, Liberal, St. Paul's, ON]

Do you see access to information requests as open data?

[Paul Macmillan]

Yes.

[Carolyn Bennett, Liberal, St. Paul's, ON]

There's the data, and then there's a revelation of how a decision came to be taken.

[Paul Macmillan]

Well, there are a number of types of access to information requests. At the provincial government level, for example, there are environmental assessments of property. There are still many jurisdictions in which, to get the results of an environmental assessment of a property, you go through an access to information request. Data such as that could be made available online. The results of environmental assessments of properties could be made available online; the data could be released without the need for a request. Certainly citizens make requests for information that that would fall into the category of data that would be otherwise available through an open government approach. That would potentially be one of the efficiencies that would be gained.

A while back I had a conversation with one of the senior provincial government people, who indicated that their ministry spends something like $10 million or $12 million a year responding to access of information requests, with an average cost of something like $2,400 each. Many of those requests could be addressed through having data already available so that the information would not need to be asked for. That is an important matter, and we think it represents an opportunity.

[Carolyn Bennett, Liberal, St. Paul's, ON]

The witnesses said also that in open government the default position is collaboration and cooperation.

Can you explain why the CAIRS website was shut down, meaning two steps forward and three back? Obviously you are saying that the next iteration of CAIRS should be machine-readable.

Last week we were concerned about the translation piece and the responsibility in Canada to have things in both official languages. Is there any solution to that, or has there been an understanding that things would be available in the language they were written in?

[Dr. Michael Geist]

To unpack those few questions, I don't have an answer for why the decision was made to cancel the CAIRS database. I recall there was a fairly robust discussion at the time. I still think that, as was said at the time, it was a mistake, largely because the information is, of course, still available; this only creates a bit of a speed bump or barrier for those who might want to access it.

Fundamentally, even just from a basic economic perspective and not just in terms of government spending, the amount of duplication when there are multiple requests for basically the same sort of information.... If we've taken the position that this information ought to be made available by law and have gone to the expense of pulling it together and have gone through some of the various limitations that exist within the Access to Information Act, it seems to me to make a whole lot of sense to try to make it as readily available as possible. Clearly that view is shared by governments from across the political spectrum, whether you're talking about government in the U.K. or one that's in the United States.

[Carolyn Bennett, Liberal, St. Paul's, ON]

In his book I think Donald Savoie quotes Andy Scott about how, as minister, he was quite astounded at how many little carrels of people and so on it takes to do access to information, and how much money could be saved if the default position were to just put it out in a proactive way.

I'll come back to crown copyright later.

[The Chair, Liberal, Shawn Murphy]

There wil be another round.

Thank you very much, Dr. Bennett.

Madame Thi Lac, you have seven minutes.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Good afternoon, gentlemen. I will ask my questions in French. I will give you time to prepare your answers.

Carole Freeman is the Bloc Québécois critic on this standing committee. Unfortunately, she could not be here today. I know she has worked very hard on this file. This is an issue that is very important to her. I will start by asking you some of the questions she had for you.

The first one is for Mr. Macmillan. Do you think it is necessary to take a different approach for each level of government, depending on whether it is national, provincial or municipal, or a public body?

[Paul Macmillan]

I don't think there's any evidence. We see as much happening at the federal or national level in other countries as we do at the local level. I don't think the approach is necessarily different; it's more the philosophy, I think.

We're not suggesting that all data that government possesses would be made available to the public. There are clearly categories of information that would include personal or commercially confidential information or the like, but there are vasts amounts of information that don't fit into those categories and that could be made available.

I don't think it's really a question of the level of government in terms of the trends we're seeing.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

I would like to hear Mr. Geist's answer.

[Dr. Michael Geist]

Yes, I think at times there are. Depending on the type of data, there can be differences between the federal, provincial, and local levels.

I'm thinking, for example, that it's a good opportunity to reference what exists right now with legal information. I would hope most people would agree that of all the sorts of data that ought to be made freely available, court cases and statutes are certainly towards the very top of the list. Citizens can't possibly be expected to follow the law if they don't actually have access to the law. That's why CanLII, the organization on whose board I sit, was established by lawyers across the country, who pay out of their dues every year a certain amount of money to help make legal materials freely available.

The approach that is taken at the federal level is different from what some provinces take, and different again from what some municipalities take. We can debate the importance of local bylaws and other municipal-related materials, but surely both federal and provincial information is critically important.

I'm a new member of the board, but I know that CanLII has faced issues, particularly at the provincial level, because some provinces even see access to things like provincial statutes as a potential revenue opportunity and thus create restrictions for people to be able to access that information. We are just talking about the laws that people like you help enact.

There are some differences, and I think that if we were to move forward on whether to call it open government or open data and we're talking about universal access to law in a free format—which I think is absolutely essential—there is a role to play in ensuring that not just the federal government but also various provinces are on board as well.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you very much.

My next two questions are also for Mr. Geist. At a committee meeting last week, I asked a question about official languages. You gave examples of open governments in Australia and the United Kingdom.

Do you think Canada has more hurdles to overcome because of its duty to respect two official languages, which is not the case in Australia or the United Kingdom, where they have just one language? Could that lead to additional hurdles when it comes to implementing an open government approach? What would those hurdles be, in your opinion?

You also talked about Bill C-32 and copyrights, and what is happening with that. Researchers will provide documents to the government, but I would like some clarification on that.

What copyrights should be respected? I would like you to elaborate on that. Earlier, you said that the government could assume those rights. Do you think the work of researchers should be covered by those rights?

[Dr. Michael Geist]

You asked first about translation.

I'm not an expert on the Official Languages Act who would know just how far or how broadly those implications would go. To highlight one of the examples I raised in terms of things like committee proceedings and the like, which are made available in both languages and are being translated right now, I do know that it's already translated material. It's translated work. In this case, it's either audio or video, and it's being translated in real time, so the notion of allowing the public to use that sort of material for alternative purposes strikes me as obvious. The notion that one might be held in contempt of Parliament, so to speak, if one used those materials without permission strikes me as wholly inappropriate.

With respect to Bill C-32, crown copyright isn't touched by that bill. The issue was raised by a number of groups during the copyright consultation held in the summer of 2009. I don't know if that's a huge surprise. I appeared before the committee studying Bill C-32 last week and I spoke of the legislation, in many areas, quite favourably. I think there are issues that ought to be addressed, but in the absence of crown copyright being dealt with in Bill C-32, there is still an opportunity to deal with it outside the legislative framework and to provide, effectively, the same level of access from a public perspective without the need for prior permission.

On its part, Bill C-32 would deal with things such as researchers' notes, let's say, if you were dealing within a legislative or House of Commons committee, and these would also be subject to crown copyright in the same way that almost anything else produced by government would be.

[Ève-Mary Thaï Thi Lac, Bloc, Saint-Hyacinthe—Bagot, QC]

We often hear about the economic considerations. In your view, are they relevant, essential or secondary in terms of open government?

That is for all three of you.