In the first post of this series, I laid out why the proposed changes to Ontario’s digital and data policy, as covered in the 2019 budget, are meaningful and worthy of much more scrutiny than they’ve received so far. I highlighted the broad and deep influence that the new Chief Digital and Data Officer (CDDO) will have, and the potentially powerful impact of the proposed Simpler, Faster, Better Services Act, 2019 that the CDDO will administer. In this second post, I want to take a step back and respond to a more basic question.
Do we actually need a law mandating that government deliver high-quality services?
This isn’t an unreasonable question. The average onlooker would hope that their government is already committed to delivering services that are easy to use, that make sense, that are efficient, that meet citizens’ needs. At the same time, many would agree that governments don’t always achieve these objectives, and that in many cases, the public services they use are far from optimal. The gap between citizens’ expectations for services and what they receive from government has become even wider in a digital age, when our service transactions outside the state have become ever more speedy and friction-free. As I argued in my last post, meeting these expectations matters, because when governments don’t, they fuel existing crises of confidence in the state.
To be clear, it’s not because of apathy or strict ignorance that governments (for the most part) haven’t kept pace with rising citizen expectations in the digital age.
A fairly comprehensive body of research details the complex challenges that can make it difficult for governments to produce high-quality digital services. These challenges are so well-documented and widely-felt that when a student comes to me saying they want to research digital government I usually have to begin by clarifying that unless they cherry pick certain cases, most of what they’ll be researching is why digital government is failing. It’s kind of a bleak research field, in that sense.
What holds governments back from improving their digital services? We can start with legacy technology (procured at a high cost, on long-term contracts, and often stale even before it’s implemented), legacy culture (status quo biases, dense hierarchies, strict silos), ineffective and dated legal and policy tools, and a dearth of digital expertise and leadership in the public service.
Digital transformation is equally hampered by the fact that those with authority over digital and data are rarely if ever included in the highest-level policy and management discussions. If they are, they lack the authority and policy levers to influence these discussions.
Progress on digital government service innovation can also be slowed — in many cases entirely justifiably — by the unique accountability questions facing the state (more on this in my next post).
To be clear, despite these barriers, we’ve seen governments deliver interesting pilots and small-scale projects that benefit from cutting edge digital design approaches. The million-dollar question when it comes to building digitally-resilient governments is how do you scale change across the machinery and daily business of the state?
Digital transformation at scale is the elusive holy grail of digital era public management reform.
Digital transformation at scale demands complicated organizational reforms, for example the elimination of silos across ministries, and the creation of integrated teams across otherwise distinct functions (e.g. IT, data, policy and delivery). It also demands a shift in culture and processes to, for instance, allow for user testing of government programs and services early in their development, to encourage experimentation and entrepreneurialism, and to budget and manage projects in ways that allow for iterative, short-term changes to their objectives and outcomes.
In an effort to usher in these changes, governments are creating digital government teams (e.g. 18f, the UK’s Government Digital Service, the Canadian Digital Service, the Ontario Digital Service), Ministers of Digital Government, Chief Digital Officers, and Digital Service Standards. The proposed Ontario law falls in line with this broader trend, but adopts the comparatively more aggressive tactic of legislating whole of government changes to public management practices and processes. This aggressive approach may be necessary given the powerful forces of inertia that have historically undermined all public management reform movements (digital and otherwise). Turns out, bureaucracies are sticky beasts. This fact hasn’t changed in the digital age.
With this context in mind, I think the proposed law potentially makes a lot of sense. Unlike what we’ve seen in Ontario and other jurisdictions so far, this approach could ensure that digital service renewal is prioritized and scaled in ways that meaningfully disrupt the business and machinery of government, which, for the most part, look the same as they did when the modern welfare state was first designed in the early 20th century.
In particular, the CDDO’s whole of government mandate will provide the kind of centralized governance that experience suggests is a basic requirement of public sector digital transformation. For example, centralized governance allows you to avoid a patchwork of incompatible IT systems and databases that don’t work nicely with each other across government, enables services that are organized around citizen needs versus departmental structures, and can prevent costly redundancies that result from departments procuring multiple IT systems to do the same things across different parts of government. Digital government has a centralizing drive, and the statute responds to this now well-documented requirement of effective digital era governance.
That said, while I think there are a number of compelling reasons that a law dictating whole of government standards on digital services and data governance makes sense, I’m a little baffled as to why the specific law, as drafted, spends so much time detailing standards on one aspect of digital and data: open data.
Where the proposed statute appears to become an “open data law”, I’m less convinced of its utility.
Do we really need an open data law in Ontario? What good will come from mandating central, legally enforceable standards on data releases? What problem is this solving?
It’s particularly odd to see so much attention given to this subject given the much more nuanced approach taken to open data today. The disproportionate emphasis on open data in the law seems like a bit of a throwback to vintage 2010 digital government.
Even the most ardent of the open data movement’s earliest advocates now question the gospel of all things open and data in the state. It’s broadly accepted that the mantra “open by default” should be replaced with the more nuanced “publish with purpose”. This approach acknowledges that open data releases are not necessarily benevolent or even neutral, but instead can create new and fuel existing social challenges, can marginalize certain communities, and can privatize the commercial value of public assets. Many have also acknowledged that our emphasis on open data has in some cases overshadowed investment in Freedom of Information laws. Notably, despite broadly documented criticisms of the Ontario FOI regime, it gets no attention in the Ontario budget.
There are a few potential reasons why open data is so prominent in the Act. On the one hand, the logic of an open data law is the same as that I just outlined for a digital service law. A legal lever provides one means of compelling open data releases from government bodies that otherwise have in many instances been slow to identify, clean and share their datasets publicly. Here it’s important to note that there’s nothing particularly new in the policy content of the open data law. It broadly reflects the existing policy on open data, as laid out in the government’s Open Data Directive. What has changed is the instrument by which open data requirements are implemented. The directive had fewer teeth, the new law would have more teeth.
Or, perhaps the emphasis on open data in the Act simply reflects the fact that the Open Government file under which open data is managed will sit in the CDDO’s portfolio, but again this doesn’t really explain why open data is such a star in the Act given the broad set of other data policies the CDDO will cover.
An alternate theory — and that is really all it is, I have zero evidence for this — is that political operatives in the Ford government are enamoured with rhetoric that frames open data as fuel for the crowdsourced (read: outsourced) state. This would align with the government’s interest in reducing the cost and size of the public sector, and its ideological preference for private sector solutions.
I’ve certainly seen this at the federal level, where early investment in open data within the Harper government was driven in large part by Stockwell Day and Tony Clement’s enthusiasm for open data as a driver of private sector public service provision ( there’s a great line where Tony Clement, commenting on open data, explained: “The dream of conservatives is that eventually through crowdsourcing that governments can step back…When all the information is available, why does government need to make decisions?”). If the same rhetoric floated its way into the Premier’s office, it may be that open data was given so much prominence in the Act’s text in order to secure political support for the broader set of digital policy changes the statute ushers in.
I truly hope I’m wrong here. An extensive body of research and practitioner experience reveals that while open data might allow for some novel private solutions to public problems, the open data-fuelled privatized state is a myth. It would be such a waste of time and energy for the Ontario government to be forced to go through the motions of demonstrating this to pay service to misplaced political enthusiasm for open data.
Summing up, do we need a law mandating changes on digital and data in Ontario?
Given that existing approaches to digital transformation have tended to result in only incremental edits at the margins of the state, it may be that a potent, whole of government legal instrument is necessary to drive meaningful, sustained public sector reform at scale. So, yes, in principle a digital and data law makes sense. At the very least this is a fascinating case study to test if such a law can drive change across a sclerotic, analogue public sector system.
Does such a law need to spend so much time on open data? I would argue not. In fact, there are a range of other far more pressing and concerning data governance questions that I would have liked to see addressed in the budget announcement and proposed digital and data law. I’ll dig into these data governance questions in my next post, which highlights the dilemmas of democratic accountability that might accompany these new Ontario policy changes.