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Reasons to Not Release Data, Part 6: Legality

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Earlier this month, we shared a crowdsourced collection of the top concerns data advocates have heard when they’ve raised an open data project with government officials at the federal, state, and local level, and we asked for you to share how you’ve responded. Dozens of you contributed to the project, sharing your thoughts on social media, our public Google doc, and even on the Open Data Stack Exchange, where 8 threads were opened to dive deeper into specific subjects.

Drawing from your input, our own experience, and existing materials from our peers at the National Neighborhood Indicators Partnership and some data warriors from the UK, we’ve compiled a number of answers -- discussion points, if you will -- to help unpack and respond to some of the most commonly cited open data concerns. This mash-up of expertise is a work in progress, but we bet you’ll find it a useful conversation starter (or continuer) for your own data advocacy efforts.

Click here to see other posts in this series.

Over the next few weeks, we’ll be sharing challenges and responses from our #WhyOpenData list that correspond to different themes. Today’s theme is Legality.

Part 1 of Legality:

18. We don’t have the legal authority to make open data/records
A. It's illegal
  • "Under what legal authority do you collect that data? Does it say explicitly under what conditions the data may be released (e.g., to another gov agency)? Is there accompanying law/regulation that covers the information's release?"

  • Ask them to cite the specific law that would mean releasing the information is illegal. They might have a valid argument, but if they cannot point to a specific law as evidence or if that law only restricts specific fields of data, not entire datasets, try starting the open data discussion with them again.

 

19. If we publish this data, people might sue us
  • "If the data is already available on your website or via an app, are you really increasing risk by opening the data?"

  • If the concern is about information that could lead to lawsuits from people or businesses, make a policy that balances the public interest in accessing the data with the privacy concerns and stick to it.

  • If the concern is about information which might impact business, case law may help.

 
20. It's proprietary
A. We don't have the rights to do that
  • Give examples of similar data being released by other agencies. To address concerns that release of the data is not allowed, share the results of the Urban Institute’s NNIP Data Inventory or show other examples to the agency staff to give them confidence that there are precedents for releasing the requested type of data.

B. We can’t make sure the government will still own the information if it’s open / People can "steal" it / How can we verify the authenticity of the data if it is put out into the world in an open format?
  • In the US, information created by government entities and officials are not entitled to copyright protection, making ownership arguments difficult. The point of opening up data is not for the government to retain 'ownership.' Data created by the government belongs to the public. Making information available proactively isn’t offering data to be stolen, it’s sharing information that is commonly owned.

  • Citation of the government or agency’s role in creating the data can be done through demonstrations like media outreach, publishing the data on the government’s website, and through sensible notation in metadata, through attribution should not be a mandatory requirement of data release. (See earlier response about how government data is also constituent data.)

  • Further, if there are concerns about the data’s misuse or misinterpretation when released, keep in mind that the government will be maintaining copies of the information. That means that the government can use its own PR or contact the media or relevant parties to correct errors when they occur or are detrimental.  (The nice thing about digital information: One can give a copy and keep a copy without much fuss.)

C. I don’t own the data, so I can’t give you permission
  • "Who does own the data? Can I talk with them?"

  • "What language was included in the contract, user agreement, or legislation that results in you not owning the data? What aspects of the data are proprietary?"

  • There are times when, genuinely, no one will know who owns the data. This seems to occur when someone has moved into a position and isn’t aware that they are now the data owner or wasn’t involved in a contracting process involving data provision. Going up the management chain can help. If you can find someone who clearly has management over the area the dataset belongs to, they can either assign an owner, give permission, or give useful background that can help frame the discussion.

 
21. We’re not sure that we own it
  • "What bits do you own? Could those be published?"

  • "If you don't own the data, do you know who does? Can we talk with them?"

 
22. We should really be selling this / What if we want to sell it? / We are selling this
  • "That likely violates the principles of the FOIA law, which usually says that records must be provided only at the cost of responding to the request. These costs might be substantial, but usually cannot, legally, be a money maker for a government agency."

  • "Even if it's legally permissible to charge for the data, the overhead of taking and processing payments is likely to wipe out any profit."

  • Show how savings are possible by wider release of the data. Needing to respond to fewer requests for the data is one example of how time and money might be saved by releasing it.

  • Recruit outside agency staff or politicians to help. Arguing against selling data may be difficult because the agencies receiving the income may not be the ones that will directly benefit from the savings that data sharing will bring. It may help to involve administrative offices or elected representatives to make the arguments on your behalf. Changing the agency policy may require a government official taking a stand on supporting open data or even new legislation prohibiting the commercial selling of the data.

Stay tuned tomorrow for our next #WhyOpenData post with Part 2 of Legality.