Governments have ever-increasing capabilities for data collection and analysis. Also increasing are expectations for public access to that data. This move toward open government brings new opportunities for open data and proactive disclosure, beyond the traditional and post-hoc access to information requests. This heightens tensions between the competing principles of privacy and transparency. In Canada there are no provincial or federal legislative frameworks to address this balance.
To question the current balance, Conroy and Scassa examine a Supreme Court of Canada decision. In the case in question, a journalist requested disclosure of edited information from the Ontario Sex Offender Registry of the Ministry of Community Safety and Correctional Services. The request was denied by the Ministry, which adjudicated and then appealed all the way to Supreme Court. In each ruling, the decision was to release the data.
The case unfolded over several years, with intricate arguments elaborated by Conroy and Scassa. Underlying the complexity are a few key issues:
Recognizing personal information
Based on the principle of identifiable data as personal (and therefore protected from release) the court required evidence of identifiability in the same circumstances and with the same type of information; a generic presentation of the risk was insufficient. This may not adequately weigh a number of realities of the current data context: the rapid growth in the number of data sources; the number of sources that are not publicly available or even known to the public; changes in technology to manipulate data; and the growing potential to identify data that was previously thought to be anonymized.
Transparency is often used as a rationale for releasing information, although not often with a clear explanation of whether transparency is a reasonable goal. For example, when data is released to be used for other purposes, such as research, or to inform the public, there is no guarantee that the data will improve the public’s understanding. To support understanding, data must be accompanied by metadata that explains the parameters and limitations of the information.
This case points to guiding principles that may support this balancing in future:
Legislation must recognize the open government shift from access to information in response to pointed requests to proactive disclosure and open data. In this context, government organizations need guidance on effective ways to make decisions about releasing data, as well as guidance on communicating about their disclosure decisions with clear explanation of expected benefits. To support transparency, shared data must be accompanied by metadata and support for users to determine appropriate use.
Responsible transparency isn’t possible when practical privacy is opaque. Expert-led, riskbased, privacy aware disclosure decison-making is needed to manage the balance.