Category Archives: Open Government

Javelin Park Episode 5: Return of the ICO

[Summary: The Information Commissioner’s Office has upheld an appeal against continued redaction of key financial information about the Javelin Park Incinerator Public Private Partnership (PPP) project in Gloucestershire]

The Story So Far

I’ve written before about controversy over the contract for Javelin Park, a waste incinerator project worth at least £0.5bn and being constructed just outside Stroud as part of a 25-year Public Private Partnership deal. There’s a short history at the bottom of this article, which breaks off in 2015 when the Information Commissioners’ Office last ruled against Gloucestershire County Council (GCC) and told them to release an unredacted copy of the PPP contract. GCC appealed that decision, but were finally told by the Information Tribunal in 2017 to publish the contract: which they did. Sort of. Because in the papers released, we found out about a 2015 renegotiation that had taken place, meaning that we still don’t know how much local taxpayers are on the hook for, nor how the charging model affects potential recycling rates, or incentives to burn plastics.

In June last year, through FOI, I got a heavily redacted copy of a report considering the value for money of this renegotiated contract, but blacking out all the key figures. This week the Information Commissioner upheld my appeal against the redactions, ruling that GCC have 35 days to provide un-redacted information. They may still make their own appeal against this, but the ICO decision makes very clear that the reasoning from the 2017 Information Tribunal ruling holds firm when it comes to the public interest in knowing salient details of original and renegotiated contracts.

The Story Right Now

For the last two weeks, Gloucestershire resident Sid Saunders has been on hunger strike outside the county’s Shire Hall to call for the release of the full revised contract between Gloucestershire County Council and Urbaser Balfour Beatty. This is, to my knowledge, unprecedented. It demonstrates the strength of feeling over the project, and the crucial importance of transparency around contracts in securing public accountability.

GCC are already weeks overdue responding to the most recent FOI/EIR request for the latest contract text, and continue to stonewall requests for even basic details, repeating discredited soundbites about potential savings that rely on outdated assumptions about comparisons and high waste flows.

On Wednesday, Sid and other local activists staged a dignified silent protest at the meeting of GCC Cabinet, where public and councillor questions on an air quality agenda item had unconstitutionally been excluded.

Tomorrow we’ll be heading to Gloucester in support of Sid’s continued campaign for information, and for action to bring accountability to this mega-project.

It’s against this backdrop that I wanted to draw out some of the key elements of the ICO’s decision notice, and observations on GCC responses to FOI and EIR requests.

Unpacking the decision notice

The decision notice has not yet been published on the ICO website, but I’ve posted a copy here and will update the link once the ICO version is online.

The delays can’t stay

It is notable that every request for information relating to Javelin Park has been met with very delayed replies, exceeding the statutory limits set down in the Freedom of Information Act (FOIA), and the stricter Environmental Information Regulations (EIR).

The decision notice states that the “council failed to comply with the requirements of Regulation 5(2) and Regulation 14(2)” which set strict time limits on the provision of information, and the grounds for which an authority can take extra time to respond.

Yet, we’re seeing in the latest requests, that GCC suggest that they will need until the end of June (which falls, curiously, just days after the next full meeting of the County Council) to work out what they can release. I suspect consistent breaches of the regulations on timeliness are not likely to be looked on favourably by the ICO in any future appeals.

The information tribunal principles stand

The Commissioners decision notice draws heavily on the earlier Information Tribunal ruling that noted that, whilst there are commercial interests of the Authority, and UBB at play, there are significant public interests in transparency, and:

“In the end it is the electorate which must hold the Council as a whole to account and the electorate are more able to do that properly if relevant information is available to all”

The decision note makes clear that the reasoning applies to revisions to the contract:

Even with the disclosures ordered by the Tribunal from the contract the Commissioner considers that it is impossible for the public to be fully aware of the overall value for money of the project in the long term if it is unable to analyse the full figures regarding costs and price estimates which the council was working from at the time of the revised project plan.

going on to say:

The report therefore provides more current, relevant figures which the council used to evaluate and inform its decisions regarding the contract and it will presumably be used as a basis for its future negotiations over pricing and costs. Currently these figures are not publicly available, and therefore the public as a whole cannot create an overall picture as to whether the EfW development provides value for money under the revised agreement.

As the World Bank PPP Disclosure Framework makes clear, amendment and revisions to a contract are as important as the contract itself, and should be proactively published. Not laboriously dragged out of an authority through repeated trips to information tribunals.

Prices come from markets, not from secrets

A consistent theme in the GCCs case for keeping heavy redactions in the contract is that disclosure of information might affect the price they get for selling electricity generated at the plant. However, the decision notice puts the point succinctly:

Whilst she [the Commissioner] also accepts that if these figures are published third parties might take account of them during negotiations, the main issue will be the market value of electricity at the time that negotiations are taking place.

As I recall from first year economics lectures (or perhaps even GCSE business studies…): markets function better with more perfect information. The energy market is competitive, and there is no reason to think that selective secrecy will distort the market or secure the authority a better deal.

(It is worth noting that the same reasoning, hiding information to ‘get a better deal’ seems to be driving the non-disclosure of details of the £53m of land the authority plan to dispose of – again raising major questions about exactly whose interests are being served by a culture of secrecy?).

Not everything is open

The ICO decision notice is nuanced. It does find some areas where, with the commercial interest of the private party invoked, public interest is not strong enough to lead to disclosure. The Commissioner states:

These include issues such as interest and debt rates and operating costs of UBB which do not directly affect the overall value for money to the public, but which are commercially sensitive to UBB.

This makes some sense. As this decision notice relates to a consultants report on Value for Money, rather than the contract with the public authority, it is possible for there to be figures that do not warrant wider disclosure. However, following the precedent set by the Information Tribunal, the same reasoning would only apply to parts of a contract if they had been agreed in advance to be commercially confidential. As Judge Shanks found, only a limited part of the agreement between UBB and GCC was covered by such terms. Any redactions GCC now want to apply to a revised agreement should start only from consulting contract Schedule 23 on agreed commercial confidential information.

Where next?

GCC have either 28 days to appeal the decision notice, or 35 days to provide the requested information. The document in question is only a 29 page report, with a small number of redactions to remove, so it certainly should not take that long.

Last time GCC appealed to a Tribunal in the case of the 2013 Javelin Park Contract they spent upwards of £400,000 of taxpayers money on lawyers*, only to be told to release the majority of the text. Given the ICO Decision Notice makes clear it is relying on the reasoning of the Tribunal, a new appeal to the tribunal would seem unlikely to succeed.

However, we do now have to wait and see what GCC do, and whether we’ll get to know what the renegotiated contract prices were in 2015. Of course, this doesn’t tell us whether or not there has been further renegotiation, and for that we have to continue to push for proactive transparency and a clear open contracting policy at GCC that will make transparency the norm, rather than something committed local citizens have to fight for through self-sacrificing direct action.

*Based on public spending data payments from Residential Waste Project to Eversheds.

Publishing with purpose? Reflections on designing with standards and locating user engagement

[Summary: Thinking aloud about open data and data standards as governance tools]

There are interesting shifts in the narratives of open data taking place right now.

Earlier this year, the Open Data Charter launched their new stategy: “Publishing with purpose”, situating it as a move on from the ‘raw data now’ days where governments have taken an open data initaitive to mean just publishing easy-to-open datasets online, and linking to them from data catalogues.

The Open Contracting Partnership, which has encouraged governments to purposely prioritise publication of procurement data for a number of years now, has increasingly been exploring questions of how to design interventions so that they can most effectively move from publication to use. The idea enters here that we should be spending more time with governments focussing on their use cases for data disclosure.

The shifts are welcome: and move closer to understanding open data as strategy. However, there are also risks at play, and we need to take a critical look at the way these approaches could or should play out.

In this post, I introduce a few initial thoughts, though recognising these are as yet underdeveloped. This post is heavily influenced by a recent conversation convened by Alan Hudson of Global Integrity at the OpenGovHub, where we looked at the interaction of ‘(governance) measurement, data, standards, use and impact ‘.

(1) Whose purpose?

The call for ‘raw data now‘ was not without purpose: but it was about the purpose of particular groups of actors: not least semantic web reseachers looking for a large corpus of data to test their methods on. This call configured open data towards the needs and preferences of a particular set of (technical) actors, based on the theory that they would then act as intermediaries, creating a range of products and platforms that would serve the purpose of other groups. That theory hasn’t delivered in practice, with lots of datasets languishing unused, and governments puzzled as to why the promised flowering of re-use has not occurred.

Purpose itself then needs unpacking. Just as early research into the open data agenda questioned how different actors interests may have been co-opted or subverted – we need to keep the question of ‘whose purpose’ central to the publish-with-purpose debate.

(2) Designing around users

Sunlight Foundation recently published a write-up of their engagement with Glendale, Arizona on open data for public procurement. They describe a process that started with a purpose (“get better bids on contract opportunities”), and then engaged with vendors to discuss and test out datasets that were useful to them. The resulting recommendations emphasise particular data elements that could be prioritised by the city administration.

Would Glendale have the same list of required fields if they had started asking citizens about better contract delivery? Or if they had worked with government officials to explore the problems they face when identifying how well a vendor will deliver? For example, the Glendale report doesn’t mention including supplier information and identifiers: central to many contract analysis or anti-corruption use cases.

If we see ‘data as infrastructure’, then we need to consider the appropriate design methods for user engagement. My general sense is that we’re currently applying user centred design methods that were developed to deliver consumer products to questions of public infrastructure: and that this has some risks. Infrastructures differ from applications in their iterability, durability, embeddedness and reach. Premature optimisation for particular data users needs may make it much harder to reach the needs of other users in future.

I also have the concern (though, I should note, not in any way based on the Glendale case) that user-centred design done badly, can be worse than user-centred design done not at all. User engagement and research is a profession with it’s own deep skill set, just as work on technical architecture is, even if it looks at first glance easier to pick up and replicate. Learning from the successes, and failures, of integrating user-centred design approaches into bureacratic contexts and government incentives structures need to be taken seriously. A lot of this is about mapping the moments and mechanisms for user engagement (and remembering that whilst it might help the design process to talk ‘user’ rather than ‘citizen’, sometimes decisions of purpose should be made at the level of the citizenry, not their user stand-ins).

(3) International standards, local adoption

(Open) data standards are a tool for data infrastructure building. They can represent a wide range of user needs to a data publisher, embedding requirement distilled from broad research, and can support interoperabiliy of data between publishers – unlocking cross-cutting use-cases and creating the economic conditions for a marketplace of solutions that build on data. (They can, of course, also do none of these things: acting as interventions to configure data to the needs of a particular small user group).

But in seeking to be generally usable, standard are generally not tailored to particular combinations of local capacity and need. (This pairing is important: if resource and capacity were no object, and each of the requirements of a standard were relevant to at least one user need, then there would be a case to just implement the complete standard. This resource unconstrained world is not one we often find ourselves in.)

How then do we secure the benefits of standards whilst adopting a sequenced publication of data given the resources available in a given context? This isn’t a solved problem: but in the mix are issues of measurement, indicators and incentive structures, as well as designing some degree of implementation levels and flexibility into standards themselves. Validation tools, guidance and templated processes all help too in helping make sure data can deliver both the direct outcomes that might motivate an implementer, whilst not cutting off indirect or alternative outcomes that have wider social value.

(I’m aware that I write this from a position of influence over a number of different data standards. So I have to also introspect on whether I’m just optimising for my own interests in placing the focus on standard design. I’m certainly concerned with the need to develop a clearer articulation of the interaction of policy and technical artefacts in this element of standard setting and implementation, in order to invite both more critique, and more creative problem solving, from a wider community. This somewhat densely written blog post clearly does not get there yet.)

Some preliminary conclusions

In thinking about open data as strategy, we can’t set rules for the relative influence that ‘global’ or ‘local’ factors should have in any decision making. However, the following propositions might act as starting point for decision making at different stages of an open data intervention:

  • Purpose should govern the choice of dataset to focus on
  • Standards should be the primary guide to the design of the datasets
  • User engagement should influence engagement activities ‘on top of’ published data to secure prioritised outcomes
  • New user needs should feed into standard extension and development
  • User engagement should shape the initiatives built on top of data

Some open questions

  • Are there existing theoretical frameworks that could help make more sense of this space?
  • Which metaphors and stories could make this more tangible?
  • Does it matter?

Shaping open government in the UK: call for steering committee nominations

[Summary: Looking for great candidates to drive progress on Open Government in the UK through the UK Civil Society OGP Steering Committee and Multi-stakeholder Forum. Nomination deadline: 16th April]

Nominations are now open for civil society members of the UK Open Government Partnership (OGP) Multi-stakeholder Forum. It’s a key time for open government in the UK, as we look to maintain momentum and push forward new reforms, within a wider national and global environment where open, participatory and effective governance is increasingly under threat.

If you are, or you know someone, passionate about open government reforms and with the capacity to drive change, please consider making a nomination. Self nominations are welcome, and membership of the Open Government Civil Society Network (the only pre-condition for nomination) is open to anyone who supports the principles of the network.

Shaping open government

The UK is currently preparing it’s fourth Open Government National Action Plan. In previous plans we’ve pursued and made progress on issues like beneficial ownership transparency (in the news this week as campaigners seek more data on offshore ownership of London property in the context of debates on illicit Russian money invested here), open contracting (equally topical as the Carrillion Crisis, and debates over passport printing unfold), and open policy making.

Yesterday, members of the current Civil Society Network Steering Committee and other guests were hosted at the Speakers House in Parliament to hear an update from Dr Ben Worthy, the independent reviewer of UK progress. The event underscored the importance of active civil society engagement to put issues on the open government agenda, and the unique opportunity offered by the OGP process to accelerate reforms and support deep dialogue between government and civil society. Ben also challenged those assembled to think about the ‘signature reforms’, engagement experiments and high profile interventions that the next National Action Plan should support, and to look to engage more with Parliament to secure parliamentary scrutiny of transparency and open government policy.

One of the ways in the UK OGP Civil Society Network we’ve been preparing to meet these challenges is by updating the Terms of Reference for the Civil Society Network Steering Group so that it is ready to act as the civil society half of a standing Multi-stakeholder Forum on Open Government in the UK. This will meet regularly with government, including with Ministers with Open Government responsibility, to secure and monitor open government commitments.

To bring on board a wider set of skills and experience, we’ve also increased the number of places on the Steering Committee, creating five spaces now up for election through an open process that also seeks to secure a good gender balance, and representation of both civil society organisations and independent citizens. I’m personally keen to see us use this opportunity to bring new skills and experience onboard for the Steering Committee and Multi-stakeholder Forum, including people with experience of working on reforms within government (though current government officials working on open gov policy are not eligible to apply), specialists in civic participation, and experts on right to information issues.

Responsibilities of Steering Group members include:

  • Engaging with the relevant Minister and civil servants with responsibility for the OGP
  • Participating in the Multistakeholder Forum between government and civil society
  • Speaking on behalf of the Open Government Network
  • Supporting and overseeing the work of the Network Coordinator and ensuring the smooth running of the OGN

and to date it’s been a committment of 3 – 15 hours a month (depending on the stage of the National Action Plan process) with a regular Steering Committee call and periodic meetings (usually in London, though we’ve been trying to move around the country whenever possible) with government officials and other members of the civil society network. The nomination form is here if you are interested – and even if you’re not interested in a role on the Steering Committee right now, do join the network via it’s open mailing list for other opportunities to get involved.

As a current Steering Committee member, I’d be happy to answer any questions (@timdavies) about the process and the potential here to take forward open government reforms in the UK, and as part of the 70+ country strong global OGP network.

Where next for Open Contracting in the UK?

[Summary: reflections and ideas building on conversations at the OGP National Action Plan workshop in Bristol yesterday with ideas about a fund for scoping studies, strengthening the ICO role around contract disclosure, and better national Management Information (and a continuation of this blog’s ‘Open Contracting’ season: I promise I’ll write about some other things soon!]

Open Contracting has been a theme in the last two UK Open Government Partnership National Action Plans. In 2013 Commitment 12 said:

*The UK government endorses the principles of open contracting. We will build on the existing foundation of transparency in procurement and contracting and, in consultation with civil society organisations and other stakeholders, we will look at ways to enhance the scope, breadth and usability of published contractual data. *

In 2016, the Open Contracting moved up to slot number 5, with a commitment to:

…implement the Open Contracting Data Standard (OCDS) in the Crown Commercial Service’s operations by October 2016; [and to] begin applying this approach to major infrastructure projects, starting with High Speed Two, and rolling out OCDS across government thereafter.

As we head towards the next National Action Plan in 2018, it’s time to focus on local implementation. Whilst government policies on procurement, and even on asset disposals (e.g. selling off government land), provide clear guidance on transparency and publication of data and documents (including full contract text), local implementation is sorely lacking.

The day after Carillion’s collapse it was only possible to locate less than 30 of the 400+ government contracts with Carillion through the national Contracts Finder dataset. And none had the text of contracts attached. Local authorities continue to invoke ‘commercial confidentiality’ as a blanket reason to keep procurement or asset sale information secret, increasing corruption risks, and undermining opportunities to promote value for money, local economic development and strategic procurement across the public sector.

When policy is good, but implementation is poor, what levers are there? At the recent Bristol workshop we explored a range of opportunities. In general, approaches fall into a few different categories:

  • Improving enforcement. There are few consequences right now for a government agency that is not following procurement guidance. Although local government is prone to resist new or strengthened requirements that come without funding, there may be opportunities to strengthen regulators, or increase the consequences of non-compliance. However, this often needs to rely on:

  • Better monitoring. It’s only when we can see which authorities are failing in their procurement transparency obligations, or when we can identify leading and lagging agencies when it comes to use of pre-procurement dialogues for public and supplier engagement, that targeted enforcement of key practices becomes possible. Monitoring alone can sometimes create incentives for improved practice.

  • Making it easier. Confusion over the meaning of commercial confidentiality may be preventing good practice. Guidance from government, or better design of software tools, can all help streamline the process of complying. Government may have a role in setting the standards for procurement software, as well as the data standards for publishing transparency procurement information.

  • Show the benefits. The irony of low compliance with procurement best practices on transparency is, well, that best practice is often better. It brings savings, and better services. A programme to demonstrate this has a lot of value.

So, what could this look like in terms of concrete commitments:

  • Scoping study support fund. Open Contracting has the potential to be win-win-win: efficiency for government, accountability to citizens, and opportunities for local businesses. But building multi-stakeholder support for new initiatives, and setting priorities for local action needs an understanding of the the current situation. Where are the biggest blocks to opening up information on procurement? Are the challenges policy or process? Where will leadership for change come from? How can different stakeholders work together to generate, share and use data and information – and to design better procurement processes? These are all questions that can be answered through a scoping study.

    Development Gateway, HIVOS and the Open Contracting Partnership have well-tested scoping study methods that have been used around the world to support national-level Open Contracting initiatives. Adapting this method for city or regional use, and providing kick-start funding to help local partnerships come together, assess their situation, and plan for change, could be a very effective way to catalyse a move from open contracting policy to local, relevant and high-impact practice.

    With just £100k investment, Central government could support studies in 10 or more areas.

  • Improved national metrics. As part of implementation of the last NAP commitment, the Contracts Finder platform now has a (very) basic statistics page, providing an overview of which public authorities are publishing their contracts. With the underlying open data, it’s possible to compute a few more metrics, exploring the kind of contracts different agencies are publishing information on, or assessing gaps between tender and award. However, central government could go a lot further in providing Business Intelligence dashboards on top of the data in Contracts Finder, and publishing much more accessible reports on policy compliance. The OpenTender.eu project demonstrate some of what can be done with the analysis of collated procurement data, calculating a range of indicators.

  • Empowering the Information Commissioner’s Office. The ICO has a key role in enforcing the public right to information, yet has a substantial backlog of cases, many including FOI requests relating to contracts. Support for the ICO to develop further guidance, monitor compliance and take enforcement activities against authorities who are hiding behind bogus commercial confidentiality arguments, could shift the balance from the current ‘closed by default’ position when it comes to the contract details that matter, to proper implementation of the open-by-default policy.

  • Extending FOI for contractors. Although the idea that the Freedom of Information Act should apply to any provider of public services, regardless of whether they are public of private sector, is one that has been put forward, and knocked back, in previous National Action Planning processes, it remains as relevant as ever. In light of the recent Carillion Collapse, and with outsourcing arrangements looking increasingly shaky, the public right to know about delivery of public services clearly needs re-asserting more strongly.

  • Improved model contract clauses. Earlier rounds of the OGP NAP have secured model contract clauses for national government contracts, focussing on provision of performance information. Revisiting the question of model clauses, but with a focus on local government, and on further requirements around transparency of delivery, would offer a parallel route to increase transparency of local service delivery, creating a contractual right to information, pursued alongside efforts to extend the legal right through FOI.

A mix of the commitments above would combine different levers: enforcement, incentives and oversight – with a chance to truly build effective open contracting. Within the wider UK landscape, for the OGP process to remain credible, we will need to see some serious and ambitious commitments, and open contracting is a key area where these could be made.

(Hat-tip to @carla_denyer for the framing of how to motivate government action used in the above, and to all at the Bristol @openGovUK workshop who discussed Open Contracting.)

UK open contracting: good policy & maturing platform – it’s time to invest in implementation

[Summary: relecting on national open contracting progress in the UK]

Last week the Prime Minister issued a letter reminding central government departments of their transparency responsibilities and providing updated guidance on the information that should be disclosed and how. Amongst the guidance, is a revised note on “Publication of Central Government Tenders and Contracts” which provides a good snapshot of the current position for national government contracting (and which is also framed as useful guidance for Local Authorities considering their responsibilities under the local government transparency code).

The note covers:

  • The legislative requirement to publish most opportunities and awards over £10,000 via the Contracts Finder platform;
  • The policy committment of central government to see all tender documents, and contract texts attached to those notices on Contracts Finder;
  • Guidance on all the documents that go to make up the contract (and so that should be attached to Contracts Finder)
  • Re-iteration of the limitations to redaction of contract documents;
  • Recommendations on transparency clauses to include in new contracts, to have clear agreement with suppliers over information that will be public.

As contracting transparency policy goes: this is good stuff. We’re not yet at the stage in the UK of having the kind of integrated public financial management systems that give us transparency from planning to final payment, nor are their the kind of lock-in measures such as checking a contract has been published before any invoices against it are paid. But it does provide a clear foundation to build on.

The platform that backs up this policy, Contracts Finder, has also seen some good progress recently. With hundreds of tender and award notices posted every week, it continues to provide good structured data in the Open Contracting Data Standard through an open API. In the last few weeks, the data has also started to capture company registration numbers for suppliers – a really important key to linking up contracting and company ownership information, and to better understanding patterns of public sector contracting. The steady progress of Contracts Finder as a national platform (with a number of features also now added to help capture sub-contracting processes too) makes it absolutely key to monitoring and improving implementation of the policies described above.

There are still some challenges for the platform: data quality (and document availability) for many of the records in Contracts Finder relies upon the features of e-Procurement systems used by departments or local authorities to manage their contracting processes. If these systems don’t encourage inclusion of company identifiers, or contracting documents, we may struggle to reach full policy compliance and the best data quality. Ongoing improvements to the APIs for data entry, and to the tools for monitoring data quality, could certainly help here, as would increased engagement with e-procurement system vendors to get them to bake open contracting into their platforms, as Chris Smith has called for.

However, as we head in 2018, whilst we have to keep working on policy and platforms – the real focus needs to be on implementation: monitoring and motivating each department or public agency to be sure they are not only seeing transparency in procurement as a tick-box compliance excercise, but instead making sure it is embraced as a core part of accountable and open government. To date, Open Contracting in the UK has been the work of a relatively small network of dedicated officials, activists and entrepreneurs. If the vibe at OC Global last month was anything to go by, 2018 may well be the year it moves into the mainstream.

Disclosure/notes

I’m a member of the UK Open Contracting Steering Group, working under Commitment 5 of the UK OGP plan and I work for Open Data Services Co-op as one of the Open Contracting Data Standard helpdesk team.

On the journey: five reflections from #ocglobal17 (Open Contracting Global)

At it’s heart, open contracting is a simple idea: whenever public money and resources are at stake through a contracting processes, transparency and participation should be the norm.

Yet, as the Open Contracting Global Summit (#ocglobal17) in Amsterdam this week has demonstrated, it’s also an idea that brings together a very wide community. Reflecting on conversations from the week, I’ve tried here to capture five key reflections on where we are at, and where we might be heading:

(1) It’s not just procurement

Although the open contracting emphasis is often on the way governments buy goods and services, there are many other contracts where public resources are at stake: from licenses and concessions, to Public Private Partnership deals and grant agreements.

These each have different dynamics, and different approaches might be needed to open up each kind of process.

The Open Contracting Data Standard (OCDS) is primarily designed around procurement processes, although at OCGlobal we gave the first public preview of the OCDS for PPPs profile, that extends the OCDS data model to provide a structured way of recording in-depth disclosures for Public Private Partnership deals.

(2) It’s not just JSON

Thanks to Article 19, the corridoors at OCGlobal had been turned into a ‘gallery of redaction’. Copies of contracting documents obtained through FOI requests provided tantalising hints of government and private sector deals: yet with all the key facts blacked out. These stood as a reminder of how many times the public are kept in the dark over contracts

Neither documents, nor data, on their own will answer all the question citizens or companies might have about contracting. Not will they automatically spark the kinds of participation, scrutiny and engagement that are the essential complement of transparency.

Although publication of standardised data might be the most concrete manifestation of open contracting, it’s problematic to conflate transparency or open contracting with use of the OCDS JSON schema. Indeed, the 5-star model published as part of the guidance for OCDS 1.0 highlights that governments can taken their first steps towards open contracting data by publishing any contracting information on the web, stepping up to machine-readability and standarised data as capacity allows.

Any other approach risks making the perfect into the enemy of the good: preventing publication until data is perfect.

The challenge ahead is in designing and refining the incentive structures that make sure open contracting efforts do not stop at getting a few documents online, or some fields in a JSON dataset – but instead that over time they broadens and deepen both disclosure, and effective use of the information that has been made available.

(3) It’s an iterative journey

There’s a much refreshed implementation section on the Open Contracting website, curating a range of guidance and tools to help put open contracting ideas into practice. The framing of a linear ‘seven steps’ journey towards open contracting is replaced with a ‘hopscotch’ presentation of the steps involved: with interlocking cycles of development and use.

This feels much closer to the reality I’ve experienced supporting open contracting implementations, which involve a dance back and forward between a vision for disclosure, and the reality of getting data and documents published from legacy systems, transparency features added to systems that are in development, or policies and practice changed to support greater citizen engagement in the contracting process.

There was a lot of talk at OC Global about e-procurement systems as the ideal source of open contracting data: yet for many countries, effective e-procurement deployments are a long way off, and so it’s important to keep in mind different ways tools like OCDS can be used:

  • Based-on – OCDS can provide a guide for reviewing and reflecting on current levels of disclosure, and for turning unstructured information into data to analyse. This is the approach pioneered by projects like Budeshi, who started out transcribing documents to data to demonstrate the value that a more data-driven approach could have to procurement monitoring.

  • Bolt-on – OCDS can be used as the target format when exporting data from existing contracting data systems. These might be reporting systems that capture regular monitoring returns on the contracting process, or transactional systems through which procurement is run. Here, the process of mapping existing data to OCDS can often reveal data quality issues in the source systems – and with the right feedback loops, this can lead to not only data publication, but also changes to improve data in future.

  • Built-in – OCDS can be used to inform the design of new systems – providing common shared data models, and a community where extended modelling of data can be discussed. However, it’s important to remember that building new systems is not just about data structures – it’s also about user experience, and right now, the OCDS doesn’t address this.

To my mind, OCDS provide a structured framework that should support use in all these different ways. As we iterate on the standard itself, it’s important we don’t undermine this flexibility – but that instead we use it to establish common ground on which publishers and users can debate issues of data quality. With the standard, those debates should be actionable: but it’s not up the standard itself to settle them.

(4) Contracting is core: but it doesn’t start or end there

Contracting is just one of the government processes that affects how resources are allocated and used. Before contracting starts, budgets are often set, or wide-reaching procurement plans established. During contract implementation, payment processes kick-in. And for the private companies involved in public contracts, there are all sorts of interlocking processes of registration, financing and taxation.

From an architectural perspective it’s important for us to understand the boundaries of the open contracting process, and how it can link up with other processes. For example, whilst OCDS can capture budget information as part of a contracting process (e.g. the amount of budget allocated to that process), it starts stretching the data model to represent a budget process nested within a contracting process.

As one of the break-out groups looking at budget, contract and spend integration noted, the key to joining up data is not putting everything in the same dataset or system, but comes from establishing business processes that ensure common identifiers are used to join up the systems that manage parallel processes.

There’s a lot of work to do before we have easy interoperability between different parts of an overall [accountability architecture](ACSP LINK LINK LINK) – but the biggest issues are of data production and use, rather than of standards and schemas.

(5) It’s time to tidy our terminology

The open contracting community is broad, and, as I recently wrote over here, “the word ‘standard’ means different things to different people.”. So does contracting. And tender. And validation. And assessment. And so-on.

Following recent workshops in London and Argentina, the OCDS team have been thinking a lot about how we tighten up our use of key terms and concepts, establishing a set of draft translation principles and policies, and we’ve been reflecting more on how to also be clearer on ideas like data validity, quality and feedback.

But we also have to recognise that debates over language are laden with power dynamics: and specialist language can be used to impose or exclude. Open contracting should not be about dumbing down complex processes of contracting, but nor should it be able requiring every citizen to learn procurement-speak. Again, for OCDS and other tools designed to support open contracting, we have balancing act: creating boundary objects that help different communities meet in the middle.

The first step towards this is just working out how we’re using words at the moment: checking on current practice, before working out how we can improve.

Gratitude

Asides from sparking a wealth of learning, the other thing an event like #OCGlobal17 does is remind me just how fortunate I am to get to work with such a inspiring network of people: exploring challenging issues with a great collaborative spirit. Thanks all!

The reflections above are more or less fragmentary, and I’m looking forward to working with many of the folk in the picture below to see where the journey takes us next.

Javelin Park: What’s in the Information Tribunal ruling?

[Summary: exploring on a local open contracting campaign victory and it’s implications for contract transparency]

On Friday, the Information Rights Tribunal ruled on the appeal by Gloucestershire County Council against an earlier ruling by the Information Commissioner that the contract for a large PFI (Public Private Partnership) project to build an waste incinerator at Javelin Park near Stroud should be substantially published.

Campaigners have been fighting for access to the contract since 2015, when their first Freedom of Information Request was refused. Although we discovered earlier this year that the contract text had been accidentally put into the public domain by the Council failing to properly apply all the redactions they have been arguing for to an earlier FOI response, the Information Tribunal ruling is important in that it:

  • Sets out clearly the Tribunal’s view on the sections of the contract and it’s schedules that should be in the public domain (almost all of it);
  • Sets out clear reasoning applicable to other UK contracts – supporting the idea that there is a strong public interest in the text of contracts, and that exceptions for commercial confidentiality should be minimal;
  • Provides support for the idea that contract text should be proactively published.

You can find a copy of the ruling here, but, as it runs to 67 pages I’ve pulled out a few of the key points below.

(A) The basics

In paragraph 6 – 21 the Tribunal helpfully describe the background of the case – which involves a 25-year Public Private Partnership contract involving the build and operation of a Waste Incinerator, with an estimated overall contract value of £500m, and annual capacity of up to 190,000 tonnes.

The original request for an unredacted copy of the contract was made under the Environmental Information Regulations (EIR) – and was fought by the council on the grounds of Intellectual Property Rights, and Commercial Confidentiality.

(B) The arguments

Below is a non-exhaustive summary of arguments explored in the tribunal report (from the perspective of a non-lawyer trying to sense-make):

(1) Environment Information Regulations vs FOI? The council argued that sections of the contract should be considered under FOI (slightly weaker access rights) instead of Environment Information Regulations. The Tribunal ruled that the contract, as a whole, fell under EIRs (Para 39 & 40) as it, as a whole, represents a measure with substantial environmental implications.

(2) Commercial confidentiality? The council argued that large sections of the contract, including pricing and volume information, were commercially sensitive and their disclosure could pose a risk to both the private contractor, and the council, in terms of impacts on any future tendering activity.

In paragraph 44 the tribunal provide a useful discussion of EIR Regulation 12(5)(e) and the difficulty of working out to what extent an adverse effect of disclosure on economic interests of parties need to be established to justify confidentiality. However, the arguments of the Tribunal hinge much more on Schedule 23 of the contract itself, which was headed “Commercial sensitive contractual provisions”, and which was cited in the contract (§84.1) as the list of items that should be kept confidential by the parties.

A large quantity of the redactions sought by the Council, and which they appears to have spent over £200,000 fighting for (based on transactions to their lawyers in the Spending over £500 data), are not contained in this schedule.

Whilst it therefore appears the contract did follow good practice of agreeing from the outset any sections that could be subject to confidentiality, the Council did not follow this in actually applying redactions.

(3) Public interests in disclosure? The Tribunal evaluated each of the redactions sought by the council, and tested (a) whether confidentiality could be reasonably expected under the contract clause and schedules referring to this; and (b) whether there was, in any case, a public interest in disclosure.

Paragraphs 57 – 59 discuss the basis of public interest are worth quoting at length:

“§57. …Concerns have been expressed about the EfW technology chosen by the Council, which those against it say may involve harmful emissions and toxic waste left over from the scrubbing process. Planning concerns have been expressed about the height, mass and design of the plant and the increase in heavy road traffic which will be caused along with consequential air pollution. Although we are not in any position to assess the merits of these concerns, they are clearly genuine and not frivolous.

§58. The Contract itself is a PFI contract involving the expenditure of a great deal of public money over many years;… We can, we think, take judicial note of the fact that the PFI model is itself controversial, with legitimate concerns expressed about bad value for money, opacity and the tendency to load expenditure on future generations. Further, it is said that the structure of the Contract, by requiring the Council to pay for a certain amount of waste to be incinerated (the so-called “take or pay” arrangement) may have tied the Council in to supply a quantity of waste which is not viable in future and may have negative environmental effect of discouraging recycling…

§59. Given those considerations, in our view there was a significant public interest in the disclosure of the entire contract, in the interests both of transparency and accountability, ie the enable the public to be informed as to exactly what the Council had agreed on their behalf and its long-term consequences and to hold it properly to account, in particular through Council elections.”

On the issue of whether sections of the contract can be selectively disclosed, the Tribunal state:

§59. “… We make clear that we are not suggesting that the exercise is an ‘all or nothing’ one all we are doing is recognising that the provisions which the Council seeks to withhold are part of a greater interlocking whole and must inevitably be seen in that context.”

They also draw attention to the Local Government Transparency Code 2014 and the presumption in there of proactive disclosure – something I cover in this post.

They further draw attention to the fact that, when the original request was made in March 2015:

“§61…”the controversy was particularly intense and there was a danger that the whole Contract would have to be terminated at a cost, according to the Council of up to £100 million. At that stage, in our view, the Council’s obligation to act transparency was particularly strong as was the public interest in the exact position in relation to the compensation payable in so far as the Contract contained relevant provisions.”

They also argue that what matters is not how much of the text of a contract is in the public domain (the council argued that 95% of the text was public from the 1000+ pages of documents), but the substantives of that text. The tribunal state:

“In our view, the fact that the public authority has disclosed some information in the past cannot be relevant to the issue of whether they should have disclosed more.”

On the majority of individual redactions evaluated, the Tribunal find the public interest overwhelmingly supports publication. Paragraphs 74 – 216 go through the contract redaction-by-redaction, schedule by schedule, providing the reasoning for each decision. Where redactions are upheld, this is down to their information being included in the schedule of confidential information, and the Tribunal finding no substantial public interest in disclosure (though in some cases they still express puzzlement as to why redaction might be required).

(4) Impact on future procurement? In paragraph 72 the Tribunal consider arguments from the Council and UBB that disclosure would prejudice future procurements, and prevent the Council getting the best deal. They state:

“§72… We cannot accept such a case. Any potential contractor seeking to do business throughout the EU must be well aware of the duties of public authorities in relation to environmental information. We do not accept that they would (or should) complain or change their behaviour in response to a disclosure of information by the Council or any other public authority which was required by the EIR (or indeed FOIA)…”

(5) Intellectual property protection? The council invoked a separate argument for Schedule 33 which covers the sale of electricity generated from the plant. The mechanism by which this is to happen is fairly opaque, and appears to involve as-yet untested deals for ‘power off-take’. The Tribunal note that they were not “…given a very clear explanation of how this was all going to work…” (§212), but that “…Mr Mawdsley [(the council officer responsible)] [hoped] to sell the contents of Schedule 33 to other local authorities.”

The council argued that the Schedule was their IP, “based on copyright , database rights and the law relating to trade secrets.”.

The tribunal dismiss this, and in a damning paragraph note:

“§216. So far as the public interest is concerned, we agree with the Commissioner that, if relevant, it favours the disclosure of Schedule 33. The Council expressly accepts that there is a public interest in transparency about its plans to sell electricity for wider use; in our view it is a weighty public interest. On the other hand, we remain unclear as to how the Council’s or UBB’s negotiating position with third parties will be damaged. As to the wish to protect the confidentiality of legal and technical details that are novel in order to sell them on to other local authorities, even assuming that Mr Mawdsley is not being overoptimistic about the potential for the Council to make money in this way, we do not think that there is a particularly great public interest in the Council being able to commercially exploit a scheme which is apparently designed to avoid the normal regulatory regime.”

Overall

I’m not sure to what extend Tribunal decisions set precedents for others – but it seems to me there are strong arguments here that supports the positions that:

  • Where contracts are made that commit public money – the public have a right to know the detail of those contracts;
  • Contracts need to be treated as a whole, and redactions kept to a minimum;
  • Only redactions agreed in advance, and set out transparently in a clear schedule should be allowed;
  • A public party cannot claim intellectual property over a negotiated contract text;

Now that we have official access to the substantial majority of the Gloucestershire Incinerator contract, the challenge ahead is to work our what of the damage done by the Council Cabinet and contractors unaccountable actions over the last 18 months can be challenged, and undone. Access to documents is ultimately just one part of a wider open contracting journey.

(C) Other things of note

There are a few other elements of note I jotted down whilst reading through the judgement.

  • The claim made to council on 18th Feb 2015 that it could cost £60m – £100m to cancel the contract appears to be based on calculations from officers, and/or Ernst and Young which have not been published by the authority (perhaps another EIR or FOIA request will be needed here…). The Tribunal ruling refers in Paragraph 27 to a document from Ernst and Young presented to Cabinet in November 2015. However campaigners reading the unredacted contract cannot find the substantiation for the cancellation costs being so high before the facility is operational. It appears breakage before the plant is in operation could cost substantially less than the break-points once it is up and running – and possibly even lower than the £30m the Council has subsequently committed from reserves to cover shortfalls in the project.

  • Fighting disclosure has potentially cost the council much more than the hundreds of thousands spent on legal fees. Now that the contract model can be scrutinised, and alternatives explored, it may turn out that delays have led to potential cancellation of the contract

  • Mr Mawdsley, the council officer who has been pushing the Incinerator contract, comes in for criticism from the Tribunal. In paragraph 73 they note “Mr Peiro’s [UBB staff member] evidence was inevitably likely to be rather partisan, and, although he is an official and was giving evidence on behalf of a public authority, we are afraid we reached the view that Mr Mawdsley’s evidence on behalf of the Council was also rather partisan. We were surprised at the failure of each to attach any great importance to clause 84 and Schedule 23 or to the Transparency Code… We accept the submission of Mr West at para 78 of his final submissions that Mr Mawdsley’s evidence was ‘…so far-reaching as to be unconvincing, in particular in relation to matters such as Access Road Disruption Events”.

What next?

I’ve tried, at least in section A and B above to summarise rather than analyse. But, as I’m posting this on a personal blog, if I might here be forgiven a personal and partisan point…

If you are in Gloucestershire and concerned about this – the Tribunal made a good point: elections are a key mechanism to hold the Council to account – and all the Councillors who voted for the Incinerator on the basis of bad information, or secrets known only to Cabinet, are up for re-election on May 4th.

I only discovered this local case when my wife, Rachel, started getting involved in local Green Party conversations, and pointed out the work our Green County Councillor Sarah Lunnon was doing to push for open contracting, and to challenge the secrecy of the Incinerator contract. We were both astonished to see the County Council being so reckless with public resources and our local environment – and to see them so opposed to transparent and accountable politics.

It spurred me into reading as much as I could of the information that was available on the contract – but Rachel has taken it a step further – and is standing as Green Party candidate for Minchinhampton Division in the upcoming County Council elections.

There is ultimately the chance that we could change the balance of power in Gloucestershire – voting out the Tory administration that’s made these reckless decisions – and getting in a progressive coalition who can work to undo the damage. So – if you happen to be local to Minchinhampton, Thrupp or Chalford: please support Rachel. If you live elsewhere in Gloucestershire: make sure you get out and vote on May 4th, and use your vote for a progressive candidate who will commit to open contracting, and to stopping this one wasteful incinerator deal.

And if this is all too parochial… think about the contracts your local authority has signed you up to. Have you looked to see that they really work in the public interest?


[Note – typos in transcription from the original judgement are my own. I’m working from a printed copy, awaiting access to digital copy from the Tribunal website]

ConDatos Talk notes: Open data as strategy

[Summary: Notes from a conference talk]

Last week I was in Colombia for AbreLatam and ConDatos, Latin America’s open data conference. Thanks to a kind invitation from [Fabrizio Scrollini](http://www.twitter.com/Fscrollini], I had the opportunity to share a few thoughts in one of the closing keynotes. Here is a lightly edited version of my speaker notes, and full slides are available here.

Open Data as strategy

screen-shot-2016-11-08-at-18-05-11In a few months, Barak Obama will leave the White House. As one of his first acts as US President, was to issue a memorandum on Transparency and Open Government, framed in terms of Transparency, Participation and Collaboration.

This memo has often been cited as the starting gun for a substantial open data movement around the world, although the roots of the open data movement go deeper, and in many countries adopting open data policies, they have blended with long-standing political priorities and agendas.

For myself, I started studying the open data field in 2009: exploring the interaction between open data and democracy, and I’ve been interested ever since in exploring the opportunities and challenges of using open data as a tool for social change.

So, it seems like a good time to be looking back and asking where have we got to eight years on from Obama’s memo, and nearly ten years since the Sebastapol Open Government Data Principles?

We’ve got an increasing number of datasets published by governments. Data portals abound. And there are many people now working in roles that involve creating, mediating, or using open data. But we’ve still got an impact gap. Many of the anticipated gains from open data, in terms of both innovation and accountability, appear not to have been realised. And as studies such as the Open Data Barometer have shown, many open data policies have a narrow scope, trying to focus on data for innovation, without touching upon data for transparency, participation or collaboration.

Eight years on – many are questioning the open data hype. We increasingly hear the question: with millions of datasets out there, who is using the data?

My argument is that we’ve spent too much time thinking about open data as an object, and not enough thinking about it as an approach: a strategy for problem solving.

Open data as an approach

screen-shot-2016-11-08-at-18-07-39
What do I mean by this?

Well, if you think of open data as an object, it has a technical definition. It is a dataset which is machine-readable, published online, and free to re-use.

The trouble with thinking of open data in this way is that it ignores the contents of the data. It imagines that geodata maps of an entire country, when published as open data, are the same sort of thing as hospital statistics, or meta-data on public contracts. It strips these datasets from their context, and centralises them as static resources uploaded onto open data portals.

But, if we think of open data as an approach, we can get towards a much clearer picture of the kinds of strategies needed to secure an impact from each and every dataset.

What is the open data approach?

Well – it is about transparency, participation and collaboration.

So many of the policy or business problems we face today need access to data. A closed approach goes out and gathers that data inside the organisation. It uses the data to address the local problem, and all other potential uses of that data are ignored.

An open approach considers the opportunities to build shared open data infrastructure. An infrastructure is not just something technical: it involves processes of governance, of data quality assurance, and community building.

Building an open infrastructure involves thinking about your needs, and then also considering the needs of other potential data users – and working together to create and maintain datasets that meet shared goals.

Ultimately, it recognises open data as a public good.

Let me give an example

In the United States, ‘211 Community Directory services play an important role in helping refer people to sources of support for health or social welfare issues. Local 211 providers need to gather and keep up-to-date information on the services available in their area. This can be expensive and time consuming, and often involves groups collecting overlapping information – duplicating efforts.

The Open Referral initiative is working to encourage directory providers to publish their directories as open data, and to adopt a common standard for publishing the data. The lead organiser of the initiative, Greg Bloom, has invested time in working with existing system vendors and information providers, to understand how an open approach can strengthen, rather than undermine their business models.

In the early stages, and over the short-term, for any individual referal provider, getting involved in a collaborative open data effort, might involve more costs than benefits. But the more data that is provided, the more network effects kick in, and the greater the public good, and private value, that is generated.

This demonstrates open data as an approach. There isn’t an open referral dataset to begin with: just issolated proprietary directories. But through participation and collaboration, groups can come together to build shared open data that enables them all to do their job better.

It’s not just about governments pubishing data

It is important to note that an open data approach is not just about governent data. It can also be about data from the voluntary sector and the private sector.

With targetted transparency policies governemnts can mandate private sector data sharing to support consumer choice, and create a level playing field amongst firms.

As in the Open Referral example, voluntary sector and government organisations can share data together to enable better cross-organisation collaboration.

One of the most interesting findings from work of the Open Data in Developing Countries research network in Brazil, was that work on open data created a space for conversations between government and civil society about processes of data collection and use. The impact of an open data approach was not just on the datasets made available, but also on the business processes inside government. By engaging with external data re-users, government had the opportunity to rethink the data it collected, with potential impacts on the data available for internal decision making, as well as external re-use. We are seeing the same thing happen in our work on Open Contracting, which I will discuss more shortly.

The falacy of more data now

Before I move on, however, I want to caution against the common ‘falacy of more data now’.

There are many people who got into working with open data because they care about a particular problem: from local transport or environmental sustainability, to accountable politics, or better education. In exploring those problem, they have identified a need for data and have allied with the open data movement to get hold of datasets. But it is easy at this point to lose sight of the original problem – and to focus on getting access to more data. Just like research papers that conclude calling for more research, an open data approach can get stuck in always looking for more data.

It is important to regularly loop back to problem solving: using the data we do have available to address problems. Checking what role data really plays in the solution, and thinking about the other elements it sits alongside. Any only with a practical understanding, developed from trying to use data, of the remaining gaps, iterating back to further advocacy and action to improve data supply.

Being strategic

screen-shot-2016-11-08-at-18-07-49
So, if open data is, as I’ve argued, an approach, how do we approach it strategically? And how do we get beyond local pilots, to impacts at scale?

Firstly, ‘open by default’ is a good starting point. Strategically speaking. If the default when a dataset is created is to share it, and only restrict access when there is a privacy case, or strong business case, for doing so – then it is much easier for initiatives that might use data for problem solving to get started.

But, ‘open by default’ is not enough. We need to think about standards, governance, and the ecosystem of different actors involved in creating, using, providing access to, and adding value on top of open data. And we need to recognise that each dataset involves it’s own politics and power dynamics.

Let’s use a case study of Open Contracting to explore this more. Colombia has been an Open Contracting leader, one of the founder members of the Open Contracting Partnership, and part of the C5 along with Mexico, France, Ukraine and the UK. In fact, it’s worth noting that Latin America has been a real leader in Open Contracting – with leading work also in Paraguay, and emerging activities in Argentina.

Open Contracting in focus

Public contracting is a major problem space. $9.5tn a year are spent through public contracts, yet some estimates find as much as 30% of that might leak out of the system without leading to public benefit. Not only can poorly managed contracts lead to the loss of taxpayers money, but corruption and mismanagement can be a source of conflict and instability. For countries experiencing political change, or engaged in post-conflict reconstruction, this issue is in even sharper relief. In part this explains why Ukraine has been such an Open Contracting leader, seeking to challenge a political history of corruption through new transparent systems.

Open Contracting aims to bring about better public contracting through transparency and participation.

Standards

To support implementation of open contracting principles, the Open Contracting Partnership (OCP) led the development of OCDS – the Open Contracting Data Standard (OCDS). When working with the Web Foundation I was involved in the design of the standard, and now my team at Open Data Services Co-operative continue to develop and support the standard for OCP.

OCDS sets out a common technical specification for providing data on all stages of a contracting process, and for linking out to contracting documents. It describes what to publish, and how to publish it.

The standard helps Open Contracting scale in two ways:

  • Firstly, it makes it easier for data publishers to follow good practices in making their data re-usable. The standard itself is produced through an open and collaborative process, and so someone adopting the standard can take advantage of all the thinking that has gone into how to model contracting processes, and manage complex issues like changes over time, or uniquely identifying organisations.

  • Secondly, the standard is built around a number the needs of a number of different users: from the SME looking for business opportunities, to the government official looking to understand their own spend, and the civil society procurement monitor tracking contract delivery. By acting as a resource for all these different stakeholders, they can jointly advocate for OCDS data, rather than working separately on securing separate access to the particular data points they individually care about.

Importantly though, the standard is responsive to local needs. In Mexico, where both the federal government and Mexico City have been leading adopters, work has taken place to translate the standard, and then to look at how it can be extended and localised to fit with national law, whilst also maintaining connections with data shared in other countries.

Governance & dialogue

When it comes to enabling collaboration through open data, governance becomes vitally important. No-one is going to build their business or organisation on top of a government dataset if they don’t trust that the dataset will be available next year, and the year after that.

And governments are not going to be able to guarantee that they will provide a dataset year after year unless they have good information governance in place. We’ve seen a number of cases where data publishers have had to withdraw datasets because they did not think carefully about privacy issues when preparing the data for release.

For Open Contracting, the standard itself has an open governance process. And in Open Contracting Partnership ‘Showcase and Learning Projects’ there is a strong emphasis on building local partnerships, making sure there is dialogue between data publishers and users – creating the feedback loops needed to build a data infrastructure that can be relied upon.

In the UK, adopting of OCDS will soon give the government a better view of how far different departments and agencies are meeting their obligations to publish contracting information. By being transparent with the data, and being transparent about data quality, civil society and the private sector can get more involved in pushing for policies to be properly implemented: combining top-down and bottom-up pressure for change.

Support and community

One of the most important lessons for us from Open Contracting has been that scaling up open data initiatives is not just about standards and technical specs, but it is also about relationships, community and providing the right support at the right time.

The Open Contracting Partnership invest in bringing together champions of open contracting from across the world to get inspired and to share learning. Because they are working with common standards, ideas and tools are more easily transferable. And as I mentioned earlier, thinking about how to improve their open data also creates opportunities for groups to think about improving their internal systems and processes.

In addition, my team at Open Data Services Co-operative provide the ‘technical helpdesk’ for OCDS. We offer e-mail, phone and workshop support to governments working to publish their data, and to groups seeking to use open contracting data. Our goal is to make sure that when data is published, it is easy-to-use, and that all the small barriers to data re-use that exist for so many other datasets are not there when you come to an open contracting dataset.

We do this because data standards are only as strong as their early implementations. But we’re not aiming to be the only support provider for OCDS. In fact, we’re aiming to stimulate an ecosystem of support and data re-use.

Ecosystem

A strategic approach to problem solving with open data needs us to recognise the different roles in a data value chain. And to think about what elements need to be kept open for a vibrant ecosystem, and where to create space for proprietary business models.

If governments need consultancy support to improve their systems to produce OCDS data, and a marketplace of expert consultants develops, this is a good thing for scaling adoption. If private firms build value-added data analysis tools on top of contracting data, this is something to welcome that can scale use.

But if the originally published data is messy, and firms have to spend lots of money cleaning up the raw data before they use it, then barriers to market entry are created. This stiffles innovation, and leads to services only accessible to wealthy private sector, excluding civil society data users.

That’s why there is a need for a range of different actors, public, civil society and private, involved in a data ecosytem – and space for a range of business models.

Business models

I’ve been asked to touch in particular on business models in this talk – not least because the company I’m part of, Open Data Services Co-operative, has been exploring a different model to scale up support for open data.

We’re set up as a Workers Co-operative: a model where Latin America has a strong history. In a workers co-op, the staff own the business: and make decisions about it’s future. This might not sound that significant, but it has a number of distinction against other models:

(1) It’s a business, not a charity. This can give us the flexibility to innovate, and the drive to find sustainable models for our work. Right now, we work through a mix of contracts for technology research and development, and through providing ongoing support for data standards, often ultimately funded by donors who believe in investing in public good open data infrastructure.

(2) Organic instead of investment growth. A lot of the examples used when talking about tech businesses are born out of massive-scale silicon valley investments. Most co-operative models are based on growing through member contributions and revenue, rather than selling equity. Although we are set up as a workers co-op, there are growing discussions around ‘platform co-operatives’ and ‘data co-operatives’, in which those who could benefit from shared data infrastructure collectively support its development through a co-op model.

(3) Social mission focus. We want to provide jobs for people – particularly growing the community of professionals working on open data, as we recognise there are limited opportunities for stable open-data and social change focussed jobs. But we also want to have an impact on the world, through enabling open data-approaches to problem solving. As a worker owned business, we’re not focussed on profit for shareholders or an external owner, but on developing effective projects, and contributing to the wider community and issues we care about.

When it comes to scale, for a co-operative the question is about reaching the right scale, not about unlimited growth. That’s why as demand has been growing for support on the Open Contracting Data Standard in Latin America, we’ve been working with the Open Contracting Partnership to put out a call for a new partner organisation to take on that role – co-operating alongside Open Data Services to provide services across the region.

If anyone would like to find out more about that opportunity – please do check out the details online here.

I’m not here to argue that co-operatives are the only or the best business model for working with open data – but I do encourage you to think about the different models: from supporting individual entrepreneurs, to building open data activities into existing organisations, and supporting the emergence of co-operative groups that can catalyse a wider re-use ecosystem.

Recap

So let’s recap.

  • Open data is an approach, not an object

  • Open approaches win out over closed approaches when it comes to creating both social value, and opportunities for innovation and growth

  • But, we need to be strategic about open data: using it for problem solving, and making sure data quality and reliability is good enough for ongoing re-use

  • An we need sector-specific approaches, with a mix of different organisations involved

I’ve shared case studies of Open Referral and Open Contracting. But in other sectors the right approaches may be different.

My challenge to you is to think about you can apply values of transparency, participation and collaboration to your open data projects, and how you can act strategically to make use of standards, community engagement and support for data publishers and users in order to build vibrant ecosystems.

Open Government – Gouvernement Ouvert: Same same but different

[Summary: preliminary notes for a roundtable discussion on open government research]

I’m talking tomorrow at a workshop in Paris to explore the research agenda on Open Government. The first panel, under the title “Open Government – Gouvernement Ouvert: Same same but different?” aims to dig into the question of whether open government takes different forms in different countries and contexts.

To what extent is open government about countries moving towards some set of universal principles and practices for modern accountable and participatory governance? And to what extent is it about diverse culturally specific reforms to existing national systems of governance? We’ll be getting into these questions by looking at the open government situation in a number of different (European) countries, followed by a roundtable discussion.

The organisers have set three questions to get discussions going. I’ve jotted down the thoughts below by way of my preparation (and sharing here in the spirit of blogging things before I try and edit them too much, which means they never make it out).

Question 1: What has been done lately in the UK that could qualify as open government?

(1) Brexit and open government

It’s hard to answer this question without first considering the recent EU Referendum, and subsequent political fall-out of the Brexit vote. How does this fit into the open government landscape?

In general, democratic process, elections and referenda have fallen outside the scope of an open government agenda. These votes might be the means by which we choose the legislative branch of government, and through which mass civic input is solicited, but when it comes to open government discourse, focus has been placed firmly on the executive and administrative branch. Whether this is sustainable in future is an open question (indeed, the OGP is moving towards a greater engagement with legislatures and legislative process).

An analysis of the EU Referendum, even though it engaged more voters than the last general election in directly addressing a substantive policy issue , would find it to be far from a model of open government. The abuse of statistics by all sides during the campaign, and the lack of attention given to substantive debate, represent failures of both political integrity from campaigners, and a failure of effective scrutiny from the media.

The subsequent position of the new administration, interpreting the referendum vote without any process of dialogue with the parliament, let along the wider public, demonstrates a retreat from ideas of open government, rather than an engagement with them. Rather than addressing social divisions through dialogue, government appears to be pursuing policies that deepen them.

At the same time it is worth noting how success and failures of open government may have contributed to the referendum result. The Open Government declaration talks of harnessing new “technologies to make more information public in ways that enable people to both understand what their governments do and to influence decisions.”. When it comes to British citizens understanding the EU, it is clear that much of the information that was available was not making it through, and few felt about to influence decisions at this supranational level. However, it is also clear that where data was available, on budgets, spending, regulation and more – that information alone was not enough to lead to better informed citizens, and that simply adding data does not make for more informed debate, or more open governance.

This raises some big questions for open governance advocacy in the UK: whether future action should engage with bigger political questions of rights, representation, media ethics and political integrity? Or whether these issues are part of a separate set of agendas to revisit, rethink and revitalise our democratic systems: whilst open government should remain focussed on administrative reforms for a more efficient, effective and responsive state?

(To explore answers to these questions I would argue there is much UK open government advocates can gain from approaching the Open Government Partnership as a space to learn from countries where the rights, freedoms and values we have often taken for granted are only recently won, or are still being fought for.)

(2) From open data to data instructures

When we look at the explicit open government commitments of the UK in most recent OGP National Action Plan, it is clear that the focus is firmly on the administrative side of open government. And very much on data and technology.

Of the 13 commitments, 8 are explicitly about data – representing the strong bias towards open data that has been present throughout the UK’s engagement in the Open Government Partnership. Because the most recent National Action Plan was published at the UK Anti-Corruption Summit in May, there is also a strong emphasis on data for anti-corruption. Asides from a process commitment to ongoing dialogue with civil society in developing the action plan itself, and a focussed set of engagement plans around how private sector and civil society actors should be involved in shaping the data that government publishes, there is little in the latest NAP on participation.

What is interesting to note however, is the move away from general commitments on open data, to a much more explicit focus on specific datasets, and the idea of building data infrastructures. The commitments cover publishing data on beneficial ownership for companies bidding on UK government contracts or owning property in the UK, gathering more structured extractives industry reporting, adopting the open contracting data standard for procurement data, publishing government grants data using the 360 Giving standard, and working towards standardised elections data. I’ll return shortly to the global nature of these commitments, and the infrastructure being constructed.

Effectively implemented, disclosure of this data will qualify as open governent on the ‘output side’. However, the challenge remains to articulate in future versions of the National Action Plan the ‘input’ side for these initiatives. For example, we are, as yet, to articulate in the NAP the feedback loops through which, for example, a commitment to Open Contracting can be made not just about publishing data on contracts, but also about creating more opportunities and mechanisms for citizen engagement and oversight of contracting.

(3) Process and product

In a somewhat meta-step, the OGP National Action Plan itself is also often considered to be an interesting act of open government. Since the second NAP, there has been close engagement between officials and a civil society network to shape the plan. The plan itself was published with joint forewords from the Minister for Cabinet Office, and the Civil Society Network. This kind of ‘open policy making’ process has been explored as a template for a number of other policy areas also, although with less concrete joint outputs.

Increasingly I’m reflecting on whether to date this process has found the right balance between government and civil society collaboration on core reforms, and the risk of civil society being co-opted: securing formal practices of transparency, but doing little to translate that into accountability.

When asked ‘What has been done lately in the UK that could qualify as open government?’, I would like to be able to answer with stories of civil society actions that use transparency to call government more to account – yet I’m struggling to identify such stories to share.

Question 2: What are the main open government issues in the UK and what are their political impacts?

There are three main trends I want to focus on in addressing this second question: privatisation and private sector accountability, anti-corruption and devolution.

Privatisation and private sector accountability

Firstly, privatisation. More and more we are seeing public services contracted out to the private sector. Instead of lines of management accountability from elected officials, through administrators, to front-line staff, the relationship between governments and fron-line services has become a contractual one. This changes structures of accountability and governance. If a service is not being delivered adequately, the levers which government can pull to fix it may be constrained by the terms of a contract. That makes opening up contracts a particularly important area of open government right now.

On a related note, it is worth noting that many reforms, such as open contracting, extractives industry transparency, beneficial ownership transparency, and the emerging area of tax transparency, are not solely about holding governments to account for the use of public funds, but also extend to scrutinising the actions of the private sector, and trying to rebalance power between citizens, state and private sector.

Anti-corruption

Secondly, as noted above, under Prime Minister Cameron, the UK Government placed a strong emphasis on the anti-corruption agenda, and on open government as a key mechanism in the fight against corruption. Whether the political will to prioritise this will continue under the new administration remains to be seen. However, a number of components of an anti-corruption data infrastructure are being put in place – albeit with major gaps when it comes to lobbying transparency, or structured data on interest and asset declarations.

Devolution

Thirdly, devolution. Although it might not be evident from the current UK OGP National Action Plan, many areas of the open government agenda are devolved responsibilities. By the end of the year we hope to see separate commitments in the NAP from Scotland, Wales and Northern Ireland. Scotland is one of the sub-national OGP pilot regions. And as more UK cities and regions get elected mayors, there is scope to build on the sub-national OGP model in future. However, with the regions of the UK controlled by different political parties, this raises interesting challenges for the open government agenda: whether it will lead to a politicisation of the agenda, or a further focus on depoliticised technical reforms is yet to be seen.

Question 3: Is there a specific UK perspective on open government?

Reading both forewords to the latest UK OGP National Action Plan, it appears to me that within the UK there are multiple perspectives on open government. Whilst the then Minister for Cabinet Office placed the empahsis on using “data to make decisions, and where a free society, free markets and the free flow of information all combine to drive our success in the 21st century”, the Civil Society forword talks of open government as a “building block for a more democratic, equal and sustainable society.”

However, when looked at alongside other OGP member nations, we can make a number of observations about UK angles on open government:

  1. The UK appears to be part of a cluster of technical advanced countries, who are making strong links between agendas for open government and agendas for technical reform inside the state.

  2. Civil Society advocacy on open government in the UK has been strongly influenced by international NGOs based in London/the UK, with a dual focus on the domestic reform, and the role of the UK as a key actor in global initiatives, such as IATI and the EITI. The government has also placed strong emphasis on international initiatives, such as beneficial ownership transparency and open contracting.

  3. This emphasis on international initiatives, and the recent link between the OGP National Action Plan and the May anti-corruption summit, has led to a particular focus on data standards and interoperability. This highlights the global component of open government: building data infrastructures that can be used to secure accountability in an era of highly mobile global finance, and in which sovereign states cannot fight corruption within their borders alone.

How this compares to the emphasis of initiatives in France, and the other countries to be considered on tomorrow panel is something I’m looking forward to exploring.

A workshop on open data for anti-corruption

Last autumn the International Open Data Charter was launched, putting forward six key principles for governments to adopt to pursue an ‘open by default’ approach to key data.

However, for the Charter to have the greatest impacts requires more than just high-level principles. As the International Open Data Conference explored last year, we need to focus on the application of open data to particular sectors to secure the greatest impact. That’s why a stream of work has been emerging to develop ‘Sector Packages’ as companion resources to the International Open Data Charter.

The first of these is focussing on anti-corruption. I’ve been supporting the Technical Working Group of the Charter to sketch a possible outline for this in this consultation document, which was shared at the G20 meeting last year. 

To build on that we’ve just launched a call for a consultant to act as co-ordinating author for the package (closing date 28th Jan – please do share!), and a few weeks back I had the chance to drop into a mini-workshop at DFID to share an update on the Charter, and talk with staff from across the organisation about potential areas that the anti-corruption package should focus on. 

Slides from the talk are below, and I’ve jotted down some brief notes from the discussions as well. 

Datasets of interest

In the session we posed the question: “What one dataset would you like to see countries publish as open data to address corruption?”

The answers highlight a range of key areas for exploration as the anti-corruption sector package is developed further. 

1) Repository of registered NGOs and their downstream partners – including details of their bank accounts, board, constitution and rules etc.

This kind of data is clearly useful to a donor wanting to understand who they are working with, or considering whether to work with potential partners. But it is also a very challenging dataset to collate and open. Firstly, many countries either lack comprehensive systems of NGO registration, or have thresholds that mean many community-level groups will be non-constituted community associations rather than formally registered organisations. Secondly, there can be risks associated with NGO registration, particularly in countries with shrinking civil society space, and where lists of organisations could be used to increase political control or restrictions on NGO activity. 

Working these issues through will require thought about where to draw the lines between open and shared data, and how organisations can pool their self-collected intelligence about partnr organisations, whilst avoiding harms, and avoiding the creation of error-prone datasets where funding isn’t approved because ‘computer says no’. 

2) Data on the whole contracting chain – particularly for large infrastructure projects.

Whilst issolated pockets of data on public contracts often exist, effort is needed to join these up, giving a view of the whole contracting chain. The Open Contracting Data Standard has been developing the technical foundations for this to happen, and work is not beginning to explore how it might be used to track the implementation of infrastructure projects. In the UK, civil society are calling for the next Open Government National Action Plan to include a committment to model contract clauses that encourage contractors to disclose key information on subcontracting arrangements, implementation milestons and the company’s beneficial owners.

3) Identifying organisations and the people involved

The challenge of identifying the organisations who are counterparty to a funding transaction or a contract is not limited to NGOs. Identifying government agencies, departments, and the key actors within them, is also important. 

Government entity identifiers is a challenge the International Aid Transparency Initiative has been grapling with for a few years now. Could the Open Data Charter process finally move forward some agreement on the core data infrastructure describing the state that is needed as a foundation for accountability and anti-corruption open data action?

4) Beneficial ownership

Benefial ownership data reveals who is ultimately in control of, and reaping the profits from, a company. The UK is due to publish an open beneficial ownership register for the first time later this year – but there is still much to do to develop common standards for joined-up data on beneficial ownership. For example, the UK register will capture ownership information in bands at 25%, 50% and 75%, where other countries are exploring either detailed ownership percentage publication, or publication using other, non-overlapping bands. Without co-ordination on interoperability, potential impacts of beneficial ownership open data may be much harder to secure. 

5) Localised datasets and public expenditure tracking data

In thinking about the ‘national datasets’ that governments could publish as part of a sector package for anti-corruption, it is also important to not lose sight of data being generated and shared at the local level. There are lots of lessons to learn from existing work on Public Expenditure Tracking which traces the disbursement of funds from national budgets, through layers of administration, down to local services like schools. With the funding flows posted on posters on the side of school buildings there is a clearer answer to the question: “What does this mean to me?”, and data is more clearly connected with local citizen empowerment. 

Where next

Look out for updates about the anti-corruption sector package on the Open Data Charter website over the first part of 2016.