Oh the things Prop 42 could do for the Open Government movement

By Dan Raile , written on May 2, 2014

From The News Desk

It’s a safe bet that most Californians haven’t heard of Proposition 42, and that this situation will persist long after this article clears the presses. It will probably continue even after June 3rd, when it will be put to the voting public. But the proposition could well have ramifications in the way Californians interact with their governments at the state and local levels for years to come.

What’s more, it could open the door for a major overhaul in the way California public bodies manage their data, resulting in an explosion of a market for civic innovation, along the lines of current activity in the health care and education tech sectors.

Proposition 42 is not sexy. It’s political inside baseball, and while it has almost no chance of capturing the public imagination, political insiders and open data advocates have high hopes pegged to its passage.

The measure would require all local government agencies to comply with the Public Records Act of 1968 and the Brown Act of 1953. These long-standing laws guarantee, respectively, the rights of any citizen to receive public information upon request, and to participate in the meetings of local governmental bodies. With some exceptions.

On the face of things, the proposition seems to be a head-scratcher. Why would the state need to make a law requiring that existing laws be followed?

The scope of California’s public information laws has expanded over time to effectively include all the goings on of public agencies and institutions throughout the state, except the legislature and the courts, which are subject to separate open information laws. In 2004 California passed Proposition 59, commonly known as the Sunshine Amendment, which made open access to all public records – executive, legislative and judicial – part of the state’s constitution.

Yet in spite of these robust-sounding mandates, California has hardly been a front-runner in terms of government openness and easy access to public information – and there is a lot of competition at the bottom of that scale. In the most recent Better Government Association (BGA) Integrity Index, California has risen from 19th place to 11th among states. That index only takes into account the laws as they appear on paper. A 2007 by the BGA and the National Freedom of Information Coalition gave California’s responsiveness to information requests an ‘F’ grade, though it still placed 17th.

At the root of of the disconnect between California’s ambitious open information laws and their practical application is that fact that local agencies don’t always have to comply with the laws if they’re not being reimbursed for doing so. In the current climate of budgetary belt-tightening, this can effectively block public access to government records.

“The cost issue is a straw man. It’s not about cost at all, it’s about not wanting to give up control of information,” says Robert Reed, director of investigations and programming for the BGA.

Proposition 42 would set fire to this straw man by eliminating the requirement that the state reimburse local governments and agencies for complying with records requests or public meeting information. If you’re still awake, you might be wondering where the money will come from. And that is where this humble little proposition gets interesting.

If 42 passes, and current polling indicates that it will, it will create an incentive for governments at all levels to preempt freedom of information requests and the costs of responding by simply publishing their data online.

“It would be a lot cheaper to release public information as data, rather than have someone at City Hall processing these requests and eventually Xeroxing swaths of information,” says Robb Korinke of Grassroots Lab, a public affairs firm that is supporting the measure.

It’s this facet of the measure that could expand its importance beyond the limited world of information-requesting muckrakers and affect the way that all Californians interact with their governments.

There is a big push, in California and nationwide, for making government more transparent by taking advantage of recent technological innovation. Government bodies from the White House on down have vouched support for such efforts, but generally compliance is not strongly enforced.

By making compliance a constitutional mandate, Proposition 42 would result in California’s decades-old public information statutes growing some much-needed teeth. What’s more, it could open the gates to an entirely new sector of economic development that creates products around the vast trove of public data.

This is something that Gov. Jerry Brown’s Director of Business and Economic Development Kish Rajan has expressed a lot of interest in.

“Opening a new industry of civic innovation could be a huge business opportunity, centered on the question of ‘how do we help governments renew themselves?’” Rajan said during a groupthink session held at San Francisco’s Runway Incubator on Wednesday.

“The things that are going to drive California forward are not going to come out of Sacramento, so the question for us is how to share our incredible resource that is government data in a way that incentivizes and enables others to create products that will streamline the way this data is handled internally and made available to the public,” he said.

Rajan says that the thinking in the Governor’s Office on how to improve the state’s economy has changed in recent years.

“It’s become clear that most top-down economic development programs like redevelopment have stopped having a positive effect, and now Governor Brown is shifting and disrupting the way economic development is done. We admit that we don’t know exactly what 21st century economic development looks like, except that it requires richer data sets and outside participation.”

Proposition 42 includes a clause that ensures it will apply to any future modifications of existing public records statutes. This opens the door to new legislation (with actual teeth!) that would clarify open data laws and standards making it easier for smaller towns to adopt best practices without having to do all the work themselves.

Wednesday's working group was convened to explore what a statewide open data law should look like. San Francisco’s open data model was mooted as a template for forthcoming legislation, and Jay Nath, SF’s Chief Innovation Officer and one of the primary architects of the city’s data policy, was on hand to offer his insight.

San Francisco has mandated that all departments generate machine-readable data as a default. It has hired its first Chief Data Officer, Joy Bonaguro, as well as departmental officers reporting to her, and mandated that all city departments catalog and publish its data at least bi-yearly. Though still in the early going, the city leadership is dedicated to making San Francisco first major U.S. city with a completely open data system.

There’s about a month to go before the vote on Proposition 42, and it seems likely to pass, although voters generally are inclined to vote ‘no’ on propositions they don’t understand. Since there are no major private interests that stand to win or lose from its passage, there isn’t much money involved in getting the word out. You won’t see it on TV or at Safeway, though you might see it in the paper.

The only the way you’re likely to find out about it, outside of reading an article like this, is by navigating the byzantine system of government websites to parse its meaning. If it manages to pass, it should get a lot easier in the future to find out just what the hell is going on in California government, and to start a company building products taking advantage of public data. If California gets it right, the idea might just catch on, finally.

[illustration by Brad Jonas for Pando]