The California legislature is on the brink of cutting local governments loose from compliance to public records requests. If signed into law, SB 71 and AB 76 will allow local agencies to consider certain provisions of the California Public Records Act “optional”, allowing California’s towns, cities, counties, and other local jurisdictions to decide for themselves when to follow the Act’s so-called “best practices” -- and when to ignore them.

These regressive provisions are actually part of a larger budget deal spanning many cuts: Putting the axe to public access will supposedly save “tens of millions” of dollars paid in reimbursements to local agencies by the state for compliance with right-to-know laws.

This argument has been used in California before -- that transparency legislation that benefits the public by making access to information more timely, more modern, and more readily available -- that may even reduce costs to government in the medium and long term -- costs too much in the short term for the state to even contemplate. In fact, this time last year, this argument was used to derail an amendment to the California Public Records Act (SB 1002) that would have increased the compliance of local agencies with the law in order to make more electronic versions of information available, using open formats, when possible. The California League of Cities and others reacted to this bill with umbrage, claiming that it imposed new standards of disclosure and publishing without providing the financial means to help agencies comply. Moreover, they claimed,

There is no urgency that requires that state and local governments be saddled with a new and unworkable open data standard right now that would impact all electronic records requests and all electronic records that must be posted on agency websites.

SB 1002 was not a perfect bill and, certainly, the gist of the California League of Cities’ argument is well-taken: Unfunded mandates by a state rarely make willing partners of local government. But to choose to rest on our filing cabinet laurels because there is “no urgency” to address data quality and transparency only leads to the situation that California is in today. Now the state faces not only an overwhelming amount of local government information locked in legacy systems and processes that local agencies are loath to reexamine (and the state scared to address), but a potential gaping hole in the state’s freedom of information law that would blatantly give local governments an out from operating as functional democratic institutions.

Burdens are scaled. A municipality with a population of 10,000 people doesn’t have the same data demands and filing schemas as a county home to nearly 10 million. Their resources are fundamentally different and their ability to innovate, to keep staff and integrate new technology -- let alone balance their budgets -- are different, too. But the size or wealth of a community doesn’t change whether or not you, as a resident, have a right to interact with your government, to request and receive public information, to ask questions and be answered. If the state is feeling the burn of citizens participating in a democratic dialogue with their local governments because of how that state manages its public records, then something needs to change -- not be eliminated.

If SB 71 and AB 76 are considering these measures only in the spirit of reducing the costs associated with public records requests, then California’s legislature should consider its constituents as allies: In 2004, as the Electronic Frontier Foundation reported, the citizens of California chose to “incorporate a right to government transparency into the state constitution by overwhelming majority vote” -- if that doesn’t sound like a people willing to think about the hard short-term costs to reforming the way that local and state agencies interface, distribute, and pay for the systems that support their right to know, I don’t know what does.

Under the new law, setting reasonable deadlines for responses to public records requests (currently 10 days just for notice about whether or not the information is disclosable), providing electronic copies of documents (if the records are already digital), and helping requestors identify documents will all be considered “optional.” To opt-out, a local government needs to only “orally” announce their decision at their “next regularly scheduled public meeting” that they’ll be doing so. How will you know if your local government has opted out? Perhaps you can search through the meeting minutes they post online -- unless your government has opted-out of that, too.

California is a big state and, just as burdens are scaled for smaller governments, there is no denying that bringing sunlight to all the information held by the Sunshine State is a substantial task. But as big as this burden may be, it must be tested against the importance of the public interest in upholding the integrity of the freedom of information. In this case, the interest is substantial, spanning a population of over 38 million people.

Tax dollars spent effectively to support systems that make information available to the public online, in real time, using structured, machine-readable formats are not wasted. Just the opposite. When Congress moved to gut the federal Electronic Government Fund in March 2011, we defended it because in terms of transparency and accountability, some programs (and laws) are priceless.

Sunlight joins the call to urge California to drop anti-transparency measures from SB 71/AB 76 immediately. The state’s budget cannot be balanced by rolling back transparency measures that are essential to California’s identity and functional operation. We hope that California's local governments will take a stand to defend their integrity by demanding that the Public Records Act be left out of the budget deal and that Governor Jerry Brown will veto these provisions posthaste.

Photo by Flickr user www78

The G8 countries today released a new declaration, and with it an Open Data Charter policy paper, which together constitute a significant high-level commitment to open data and transparency.

Sunlight has been close to the ideas, movement, and conversations that have helped lead to this announcement.  We're thrilled to see such a visible, detailed statement from the G8, moving what has long been a national level issue, and more recently a multi-stakeholder issue, to now an idea jointly promoted and celebrated by some of the world's most powerful governments on their own terms.

This statement provides helpful language in its commitments, reiterating the open data benefits canon, and imposing a new reporting processes and avenues for collaboration, both intergovernmental and across sectors. It will likely help prioritize open data initiatives in other policy venues, and empower internal reform champions within G8 governments (and beyond) to pursue open data.

These results are predictable, in part, because they're the kinds of impact we've seen from the succession of highly visible US open data policies over the last 5 or so years, culminating recently in the newest Open Data Policy from the administration.

The experience of those successive policies also suggest some likely challenges that the G8's Open Data Charter will soon face, for example: the limits of a head of state's voluntary commitment in affecting civil servants, the difficulty in articulating "high value" data (in even a single country context), the challenge in operationalizing the "default" of openness, the gap between governments' open data commitments and their transparency performance on other issues (especially those that affect political power), or the inherent difficulty in evaluating openness, when only the disclosed is accessible.

Each of those issues, and many others, will now play out across the G8 countries, and we'll all be better off for it. Open data is a concept that should touch any number of other issue domains within government, and a high-level commitment to openness is among the best ways of taking the spirit of openness that underpins our ideas about democracy, and applying it to all the places where we haven't yet managed to apply it.

It's a testament to the optimism and potential we see in new technology that our some of our broadest hopes for shared knowledge are now being expressed in terms of Open Data, at the highest levels of governments around the world. Let's work to ensure that our expectations, vision, and judgment are proportional to the challenge.

The Czech Republic has been facing a rather earth-shattering corruption scandal that is probably one of the most revolutionary episodes in the history of the small Central European country - and the whole post-communist region since the transition. The political turmoil has been evoked by an unprecedented police action last week where some 400 anti-organized crime units raided national and local government offices and companies of high-profile business people with close criminal ties to the political elite of the country.

Not only is the raid and the consequent wave of arrests an important political milestone for the Czech Republic, it also raises crucial questions for the whole region around how the institutional fight against corruption proceeds and how civil society may respond to (let alone take advantage of) these radical changes.

As the New York Times notes, countries in Central Eastern Europe and the Balkans “have been grappling with a surge of corruption.” Overwhelming state capture, the lack of independent watchdog institutions and systematic influence-peddling is omnipresent in many of these states and civil society organizations have been long trying to raise attention to the deteriorating impact of clientelistic networks and cronyism throughout the whole region.

According to some of our friends in the Czech Republic, the current scandal sparked an unprecedented public debate around the line between legitimate political deals and corruption - something that surely rings a bell to many other countries both within and outside the region. And while Czech politicians and even journalists keep defending the recently revealed, though not at all surprising practices - e.g. former politicians landing in top positions of state-owned enterprises - as a “legitimate part of democratic politics based on compromises”, civil society and the public increasingly considers them as “well beyond moral and legal definitions of corruption” according to Kamil Gregor, head of KohoVolit, a Czech parliamentary monitoring organization.

Regarding the long-term impacts of the scandal, Gregor notes that “these investigations are a promising sign of the ongoing emancipation of anti-corruption agencies and prosecutors that have traditionally been under a strong political pressure to turn a blind eye on the close network and dubious activities of high ranking politicians, civil servants and business people.” The Czech Prime Minister has seemingly become a victim of its own - rather commendable - political measures to strengthen the independence of law enforcement agencies, but what does that tell to the political elites of neighbouring countries? Is there a way out of the deep-seated cronyism and a chance for a positive shift in the public approach? Or on the contrary, will politicians take the Czech scandal as a warning sign that independent law enforcement agencies pose serious threats to their political survival?

For us at Sunlight one of the most important questions seems to be how civil society in the region may adjust to and take advantage of a possible new era.

The situation is even more promising since CEE and the Balkans have long been the incubator for some of the greatest transparency projects and it looks like the very similar social, political and economic challenges have created a vast number of impressive technology-driven initiatives around government accountability. The list includes the above mentioned KohoVolit, Fair-play Alliance from Slovakia, K-Monitor in Hungary, ePanstwo from Poland, Windmill in Croatia, Zasto Ne in Bosnia and Herzegovina, national TI chapters, various cross-border investigative and data-driven journalism projects or the Reconstruction of the State initiative from the Czech Republic, one of the most progressive efforts of several civil society organizations to catalyze the power of Internet and engage both citizens and politicians in a 21st century manner consultation around anti-corruption reforms.

And while we certainly refrain from making serious conclusions about the possible impact that civil society might have on the independence or effectivity of law enforcement agencies, one can only argue that the enhanced culture of transparency and the growing demand for accountable - or at least less seriously corrupt - governments will slowly but gradually change general political rhetorics and public expectations around how decisions are made in these countries. And that is indeed a crucial first step.

In August 2011, 10 law professors petitioned the Securities and Exchange Commission (SEC) to require publicly traded companies to disclose their political spending.  This is not a new issue.  Back in 1999, a Harvard Law Review article urged the SEC to require new disclosures by publicly traded companies including reports on corporate political expenditures.  But the urgency for a new rule stepped up considerably after the landmark court rulings Citizens United and SpeechNow in 2010.  Citizens United allowed corporations to spend an unlimited amount on political ads.  SpeechNow allowed corporations to spend through super PACs.  Now corporations can spend freely to influence elections, but there is no single place where they have to report that spending to their investors.

More than 600,000 members of the public, including institutional investors, members of Congress, state elected officials, academics and laypersons have filed public comments urging the SEC to act.  One of the criticisms leveled at this rulemaking effort is that the SEC is not the proper agency to address the issue of money in politics.  In a newly released report from the Corporate Reform Coalition, entitled, The SEC and Dark Political Money: An Historical Argument for Requiring Disclosure, I detail how the SEC already regulates various aspects of money in politics.

First, the SEC regulates foreign campaign contributions that fall under its jurisdiction under the Foreign Corrupt Practice Act (FCPA).  The FCPA is one of the legacies of the Watergate scandal, which revealed that hundreds of corporations had spent millions of dollars on politics here and abroad to get and maintain business.

Second, in response to a spate of pay-to-play scandals in the municipal bond market in the early 1990s, then-SEC Chair Arthur Levitt encouraged the Municipal Securities Rulemaking Board to adopt a rule banning companies that do business underwriting bonds for municipalities from donating to the politicians that award the contracts – an obvious conflict of interest.  The SEC continues to exercise jurisdiction in this market over pay to play pursuant to MSRB Rule G-37, among other rules.

Third, in response to a spate of pay-to-play scandals among public pension funds and their investment advisers, then-SEC Chair Mary Schapiro led the Commission to promulgate Rule 206(4)-5, which bans certain quid pro quos in the public pension fund market.

This historical perspective, illustrated in the timeline below, demonstrates that the SEC is not new to regulating in this space.  The SEC has been using its authority to protect the public interest for decades.  A new disclosure rule would fit into the SEC’s traditional role of providing investors with transparency so that they can compare investments apples-to-apples.  The potential disclosure rule also fits the Commission’s mission of protecting the capital markets from manipulation and corruption.

I will be speaking at greater length about The SEC and Dark Political Money at the National Press Club Tuesday along with other campaign finance reform experts.

*Ciara Torres-Spelliscy is an assistant professor of law at Stetson University College of Law, where she teaches courses in election law and corporate governance. She is the author of “Safeguarding Markets from Pernicious Pay to Play: A Model Explaining Why the SEC Regulates Money in Politics.”

Here at Sunlight, we embrace the idea that brilliant work can grow from seeds sown during organically constructed, discussion-driven sessions -- the foundation of any unconference. Our own unconference, TransparencyCamp, has itself yielded the creation of the Brazilian civic hacking group Transparência Hackers  and CityCamp, and has served for the launch pad for Waldo Jaquith’s OpenVA, a hub for new data and APIs for Virginia, AbreLatAm, an open data unconference in Uruguay, and even inspiration for Josh Tauberer’s “Open Data is Civic Capital: Best Practices for ‘Open Government Data'”.

But what happens when the seed you are trying to plant is legislative change? How do open government unconference attendees (a mix of engaged residents, city officials, and other civic players) help make a legislative seedling grow? What next steps should be taken? Moreover, how can engaged citizens help to promote open data?

We've been thinking about these questions since Alisha Green and Rebecca Williams of Sunlight’s municipal team and Open States lead, James Turk, had the opportunity to sit in on an open data policy brainstorming discussion at CityCampNC in Raleigh, North Carolina, lead by open government guru and Code for America brigade captain, Jason Hibbets, and Raleigh Open Data Manager, Jason Hare. The “Statewide Open Data Policy” session was a popular and well attended one, and took place in every unconference’s coveted spot: the big room. Attendees included software developers, government staff members, members of local civic organizations, and civic hackers. It was a pleasure to see a session focused on open data policy-making because not only would the creation of such a policy directly support the work done at unconferences like CityCampNC, but because such a policy would have the chance to be made stronger by having so many of Raleigh’s relevant open data stakeholders assembled in one place at the same time. Below, we explore some of the strongest takeaways and lessons learned from approaching policy making in an unconference (or similar) setting.

Drafting Open Data Policy Language

The CityCampNC Statewide Open Data Policy session began their policy-making discussion by framing a desire for a statewide open data policy (as opposed to a series of municipal policies) in order to better provide for the regional needs of areas like the North Carolina Research Triangle (where CityCampNC was hosted) and provide a consistent framework for the state. Discussion of what other state policies existed commenced (Utah and New Hampshire, Hawaii in the works, California’s attempt), with eye toward the possibility of using and remixing current policies (delightfully referred to as the “open source way”) for the lightest lift in getting a viable policy in place.

There’s an important lesson here: Although the temptation to use previous legislation as a template is high (laws are after all determined on precedent, highly iterative, and are perhaps themselves the very first instance of the “open source way”) it is actually more helpful to discuss what benefits you see in open data policies that exist currently, what you like best about them, and to share resources that exist in terms of guidance when starting to develop policy. Fortunately, this is the kind of dialogue unconferences were made for. If you find yourself in a similar situation, discussing policy creation in an unconference, brigade meeting, or hackathon-type setting, let the conversation get started and turn the enthusiasm of the room into a strategy session to discuss how participants can form working groups or reach out to government constituents to draw in open data policy bill sponsors.

Creating an Open Data Policy Dialogue with Relevant Stakeholders

Ultimately, partnerships between government and transparency activists to work together on drafting policy are what created the open data policy policies and legislation out there today. The Transparency Working Group of New York City was imperative in the creation of NYC’s open data policy Local Law 11 of 2012, working together inclusively, complete with a policy hackathon and open data priorities wiki. Star players and organizers can come in many forms -- so be sure to not count out any of the stakeholders that attend your unconference. In Hawaii, local technology groups and journalists have been key to the in-progress open data policy. In Utah, it was Jason Williams, a citizen-activist and local journalist, who organized the interest in the state’s recently passed open data law. In Montgomery County, the main driver was Councilmember Hans Reimer and associates, and in New Hampshire, a legislator with a background in tech helped rally execution of their open data policy. At CityCampNC, the open data policy seession attendees used these examples and their own experience to begin identifying relevant stakeholders to reach out, including the IT committees (in both houses), a local League of Municipalities, county delegation members, local representatives, the real estate industry, and North Carolina Press.

While comparing the legislative language out there and drafting policy are excellent thought exercises, the real value in the policy unconference session isn’t to draft a legislation template then and there, but to begin the steps in engaging in the legislative process discussing how to partner with your local lawmakers and relevant stakeholders to eventually come to a consensus together.

As Sunlight revamps its Open Data Policy Guidelines this summer (SPOILER: with more local examples!) and continues its municipal transparency research (see our Guidelines to Open Data Policy Guidelines blogpost series), we hope to provide additional guidance both about how you can connect with your local government and what partnerships and processes have led to successful open data policy making. If you’re curious in following open data policy bills currently in process, check out Sunlight’s Open States and Scout for alerts. To look at local policies that have already been drafted and how they stack up against our Open Data Guidelines check out our ongoing research here. Lastly, importantly, you can reach us at local [at] sunlightfoundation.com for additional open data policy session or drafting feedback.