Do we need eligibility criteria for private sector involvement in OGP?

I’ve been in Costa Rica for the Open Government Partnership (OGP) Latin America Regional Meeting (where we were launching the Open Contracting Data Standard), and on Tuesday attended a session around private sector involvement in the OGP.

The OGP was always envisaged as a ‘multi-stakeholder forum’ – not only for civil society and governments, but also to include the private sector. But, as Martin Tisne noted in opening the session, private sector involvement has so far been limited – although an OGP Private Sector Council is currently developing.

In his remarks (building on notes from 2013), Martin outlined six different roles for the private sector in open government, including:

  1. Firms as mediators of open government data – making governance related public data more accessible;
  2. Firms as beneficiaries and users of open data – building businesses of data releases, and fostering demand for, and sustainable supply of, open data;
  3. Firms as anti-corruption advocates – particularly rating agencies whose judgements on risk of investment in a country as a result of poor governance environments can strongly incentivise governments to institute reforms;
  4. Firms practising corporate accountability – including by being transparent about their own activities.
  5. Technology firms providing platforms for citizen-state interaction – from large platforms like Facebook which have played a role in democracy movements, to specifically civic private-sector provided platforms like change.org or SeeClickFix.
  6. Companies providing technical assistance and advice to governments on their OGP action plans.

The discussion panel then went on to look at a number of examples of private sector involvement in open government, ranging from Chambers of Commerce acting as advocates for anti-corruption and governance reforms, to large firms like IBM providing software and staff time to efforts to meet the challenge of Ebola through data-driven projects. A clear theme in the discussion was the need to recognise that, like government and civil society, the private sector is not monolithic. Indeed, I have to remember that I’ve participated in the UK OGP process as a result of being able to subsidise my time via Practical Participation Ltd.

Reflecting on public and private interests

Regardless of the positive contributions and points made by all the panelists in the session, I do find myself approaching the general concept of private sector engagement with OGP with a constructive scepticism, and one that I hope supports wider reflections about the role and accountability of all stakeholders in the process. Many of these reflections are driven by a concern about the relative power of different stakeholders in these processes, and the fact that, in a world where the state is often in retreat, civil society spread increasingly thin, and wealth accumulated in vastly uneven ways, ensuring a fair process of multi-stakeholder dialogue requires careful institutional design. In light of the uneven flow of resources in our world, these reflections also draw on an important distinction between public and private interest.

Whilst there are institutional mechanisms in place (albeit flawed in many cases) that mean both government and non-profits should operate in the public interest, the essential logic of the private sector is to act in private interest. Of course, the extent of this logic varies by type of firm, but large multi-nationals have legal obligations to their shareholders which can, at least when shareholders are focussed on short-term returns, create direct tensions with responsible corporate behaviour. This is relevant for OGP in at least two ways:

Firstly, when private firms are active contributors to open government activities, whether mediating public data, providing humanitarian interventions, offering platforms for citizen interaction, or providing technical assistance, mechanisms are needed in a public interest forum such as the OGP to ensure that such private sector interventions provide a net gain to the public good.

Take for example a private firm that offers hardware or software to a government for free to support it in implementing an open government project. If the project has a reasonable chance of success, this can be a positive contribution to the public good. However, if the motivation for the project comes from private rather than a public interest, and leads to a government being locked into future use of a proprietary software platform, or to an ongoing relationship with the company who have gained special access as a result of their ‘CSR’ support for the open government project – then it is possible for the net-result to be against the public interest.

It should be possible to establish governance mechanisms that address these concerns, and allow the genuine public interest, and win-win contributions of the private sector to open government and development to be facilitated, whilst establishing checks against abuse of the power imbalance, whether due to relative wealth, scale or technical know-how, that can exist between firms and states.

Secondly, corporate contributions to aspects of the OGP agenda should not distract from a focus on key issues of large-scale corporate behaviour that undermine the capacity and effectiveness of governments, such as the use of complex tax avoidance schemes, or the exploitation of workforces and suppression of wages such that citizens have little time or energy left after achieving the essentials of daily living to give to civic engagement.

A proposal

In Tuesday’s session these reflections led me towards thinking about whether the Open Government Partnership should have some form of eligibility criteria for corporate participants, as a partial parallel to those that exist for states. To keep this practical and relevant, they could relate to the existence of key disclosures by the firm for all the settings they operate in: such as disclosure of amount of tax paid, the beneficial owners of the firm, and of the amount of funding the firm is putting towards engagement in the OGP process.

Such requirements need not necessarily operate in an entirely gatekeeping fashion (i.e. it should not be that participants cannot engage at all without such disclosures), but could be instituted initially as a recommended transparency practice, creating space for social pressures to encourage compliance, and giving extra information to those considering the legitimacy of, and weight to give to, the contributions of corporate participants within the OGP process.

As noted earlier, these critical reflection might also be extended to civil society participants: there can also be legitimate concerns about the interests being represented through the work of CSOs. The Who Funds You campaign is a useful point of reference here: CSO participants could be encouraged to disclosure information on who is funding their work, and again, how much resource they are dedicating to OGP work.

Conclusions

This post provides some initial reflections as a discussion starter. The purpose is not to argue against private sector involvement in OGP – but is to, in engaging proactively with a multi-stakeholder model, to raise the need for critical thinking in the open government debate not only about the transparency and accountability of governments, but also about the transparency and accountability of other parties who are engaged.

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