By Teresa Scassa
One of the challenges with the proactive disclosure of government data, and with open data more generally, is the obligation that governments have to not disclose personal information. This challenge is made more acute by the fact that the definition of “personal information” is, generally speaking, “information about an identifiable individual”.
Courts in Canada have said that identifiability is not considered solely in the context of the particular data set in question – information is personal information if it can lead to the identification of an individual when it is matched with information from virtually any other source.
The Supreme Court of Canada has just released a decision dealing with the issue of whether Ontario’s Ministry of Community Safety and Correctional Services was right to refuse to disclose information relating to the province’s sex offender registry. The concern in this case was that although the applicant sought only data about sex offenders living within the forward sortation areas, indicated by the first 3 letters of a postal code, this information could still be matched with other available information to specifically identify and locate individuals. Although the case deals with the province’s access to information regime, lessons can be extracted that are relevant to both the proactive disclosure of government information and to open data.
For more detail, see my blog post about this case, here: http://www.teresascassa.ca/index.php?option=com_k2&view=item&id=159:re-identification-risk-and-proactive-disclosure-of-data-for-open-government-lessons-from-the-supreme-court-of-canada?&Itemid=80
Teresa Scassa University of Ottawa, Faculty of Law
Professor Elizabeth Judge, University of Ottawa, Faculty of Law
Year 1: “Implied License for Downstream Uses of Copyrighted Information
on the Geoweb”
How does copyright law apply to material individuals submit to
government-operated websites, such as original compilations of
geographic data, surveys, or maps?
Authors of copyrightable works are the first owners of copyright and
have a bundle of exclusive rights, including the right to prevent others from
copying and publishing their works. Copyright arises automatically,
and authors need not actively affirm or register their copyright to obtain
protection. Moreover, individuals do not waive their copyright by a failure
to exercise their rights. However, certain actions by a copyright owner
may constitute an implied license or waiver of copyright, permitting
others to do activities that would otherwise be copyright infringing.
The Geoweb promises to connect individuals seamlessly, to allow individuals to
communicate with government, and for governments to use these inputs to
fashion policy responses. Copyright is potentially an obstacle to
realizing the potential of the Geoweb, especially the ability of the
public to contribute and use the information, as it may be difficult to
determine what information is protected by copyright and what uses the
government and the public may make of information posted online by
The research will discuss which material is subject to copyright
and examine how the legal mechanisms of implied license and waiver may
apply to information that individuals contribute to the Geoweb. It will
discuss the legal framework for addressing whether government may make
such information publicly available and what uses the public can
subsequently make of these works, and it will suggest best practices to
facilitate public participation in a copyright-compliant manner,
Prof. Teresa Scassa is interested in Privacy Challenges in Open Government and welcomes your input and participation.
The open government movement promises greater access to government information and proactive disclosure of open data. If it unfolds as promised, a growing volume of information will soon flow from governments to individuals and to the private sector. Such information flows will be relatively free of physical and technological barriers, as well as restrictions on reuse. Canada’s federal government has expressed a commitment to open government, and provincial and municipal governments are also committing to varying degrees of openness. The values underlying the open government movement – greater transparency and accountability, and greater citizen engagement in government processes – are crucial to establishing and maintaining a vibrant democracy.
Open government, however, may conflict other important principles such as privacy. Public sector data protection and access to information laws have long sought to balance the need for access to public information with the protection of personal information. Yet these laws may not be adequate to cope with open government policies that move beyond models of access driven by individual requests. This project will explore the extent to which the open government movement may create or exacerbate tensions between the public interest in privacy and the public interest in open, transparent, and accountable government. I will examine three contexts in particular. These are: where already public information containing citizen personal data is made more readily accessible; where information is about both an identifiable individual and something else; and where de-identified information may nonetheless point to individuals as a result of data matching activities.
You can reach Prof. Scassa at firstname.lastname@example.org.
Written by Teresa Scassa
With little fanfare, the Canadian government has released its much awaited, newly revised Open GovernmentLicence. The previous version that had been available on its Open Data site was a beta version on which public comments were invited. The government has also published its Open Government Licence Consultation Report, which summarizes and discusses the comments received during the consultation process.
The revised version of the licence is an improvement over its predecessor. Gone is the claim to database rights which do not exist in Canada. (These rights do exist in the UK, the Open Government Licence of which was a template for the Canadian licence). The new licence also discards the UK term “personal data” and replaces it with “personal information”, and it gives this term the meaning ascribed under the federal Privacy Act. The language used in the licence has been further simplified,making it even more accessible.
It should be noted that Alberta’s new open government licence – released as part of the launch of its open government portal earlier this year – is very similar to V2.0 of the federal government licence. There are some minor formatting differences, and a few changes in wording, most of which can be explained by the different jurisdiction (for example, the definition of “personal information” refers to Alberta’s Freedom of Information and Protection of Privacy Act). The similarities between the two licences are no coincidence. Although the Alberta licence was made public prior to the release of the federal government’s V2.0, work has been going on behind the scenes to move towards some form of federal/provincial consensus on the wording of open government licences with a view to ensuring that there is legal interoperability between data sets released by different governments in Canada. The efforts to reduce barriers to interoperability (whether legal or technical) are important to the ability of Canadians to work with and to integrate different data sets in new and innovative ways. Thus not only is the COGL V2.0 to be welcomed, so are the signs that cooperation and coordination may lead to a greater legal interoperability of open government licences across Canada.