A Stake in the Game: Public Disclosure Coordinators at the Open Data Table
A few weeks ago, I joined the Washington Department of Transportation’s (WSDOT) Open Data Committee for a meeting on Risk Management. The group was in the middle of ironing out the types of risks that releasing agency data as open data could have before coming up with strategies to lessen, respond to, and evaluate the severity of these risks. The committee discussed many different situations, including improper data vetting by the agency and data misuse by third-parties.
One risk, stated as a fact, was that not publishing open data would result in a marked increase in Public Disclosure Requests (PDRs). However, it was brought to the group’s attention that this assumed result is at best based on mixed evidence. Studies have shown both increases and decreases in PDRs after the passage of Open Data policies and launch of Open Data portals. About ten minutes of debate ensued over how exactly to express the possible consequences of unpublished Open Data. Would there be an increase or a decrease of requests? How about an increase/decrease, or an increase and/or decrease? The best I had to offer was the suggestion of a marked change in PDRs in place of increase, and even that was a hedged bet.
This little episode highlights much of what I have learned over the last three weeks about the tight relationship between Public Disclosure Requests and Open Data decision making. From working with and interviewing WSDOT PDR Coordinators and reviewing PDR data, I believe PDR Coordinators can play an important role in balancing the Public’s right to both open government data and privacy.
The Art of the Public Disclosure Request
While cross-walks for exemptions and public disclosure processes help standardize PDR procedure, there is a lot of variability to the process of responding to record requests. A question that on its surface seems simple may turn out to be very complicated once the request process unfolds. Constant changes: legal (court rulings and statues), and internal (job turnover in record departments within WSDOT) exacerbate the complexity of the work. In fact, decision making is so circumstantial that no one person has the institutional knowledge to answer all WSDOT public disclosure requests alone. PDR work is thus highly collaborative in nature, involving the input of co-workers, record managers, and managers within WSDOT.
Depending on different factors a request may be denied, accepted, or accepted in part depending on contextual information. Who is requesting, when they are requesting, why they are requesting, and what is being requested can all factor into the final decision a Coordinator makes. License Plate Readers (LPR) are only given to the vehicle’s owner. Employee records or proprietary records from a contractor are not given to third-parties. Both project award bids and employee investigations are not open for disclosure until WSDOT has made an official decision on the matter.
Although a Coordinator cannot specifically ask requesters why they want the records they are asking for, there are ways to insure records are not used for specific reasons. A requester wanting collision data must sign a wavier promising not to use the data in a suit against WSDOT. Plans for Critical Infrastructure, such as bridges and ferries which cross international waters, are highly guarded by both United States and Washington State statues. However, when these sensitive records are released to requesters, they must sign a wavier promising not to share it with anyone else.
Even if a request is accepted, what the requester receives is dependent on many factors. Many records have personally identifying information, which must be redacted before it is sent to any requester. Retention time spans vary greatly between different types of records. Records for a record request, for instance, have a two-year retention. Any request for a record from 2016 or earlier might not be accessible. Even a full request, with no redaction or missing records due to retention time spans, can be a variable. Different record types reside in different places and are held in different types of media. I’ve found instances of up to five different types of media sent to a requester for an individual request.
These examples highlight just a few of the considerations a WSDOT Coordinator takes into account when working through a request.
PDR Coordinators Have Opinions Based on Their Professional Experience
Due to their knowledge of Washington State Public Records Act and WSDOT records, PDR Coordinators have a lot to say about which records are good or bad candidates for open disclosure.
Right of Way Plans were mentioned as a frequently requested record in all my interviews with PDR Coordinators. Other frequently requested data-sets differed by region and department: LPR (Headquarters), Variable Message Sign Messages and Speed Limits on I-90 (South Central), and Bridge Plans (Engineering).
Coordinators also flagged particular types of records that were legally impossible to disclose despite being frequently requested and approved, such as LPRs and Bridge Plans. LPRs are only given to a particular vehicle’s owners. Bridge Plans are considered critical infrastructure, and are therefore disclosed on very strict case-by-case basis.
As WSDOT employees, Coordinators took the concerns of WSDOT stakeholders into account in their suggestions. One coordinator noted that records without exemption issues may prove to be a liability for WSDOT stakeholders, if records relating to them are posted publicly. According to Washington State law, a state contractor’s work products, which would otherwise be undisclosed, are open to public request. For example, unrestricted public access to this data could allow competing firms to obtain the WSDOT contractor’s work products, thus weakening the contractor’s competitive advantage. Consequently, contractors could decide doing business with WSDOT is too risky and not put in bids with the state. Though the right of the people to government data may prove to be more substantial, the risk pointed out by this Coordinator warrants serious consideration.
Circumstance Catalogs can Leverage PRD Coordinators Knowledge of Records and Give then a Stake in the Open Data Process
PDRs, and WSDOT requests in particular, require immense institutional knowledge and collaboration. Any proposed recommendations delivered to WSDOT must take into account how Coordinators have already learned to deal with the challenges of interpreting, assessing, and delivering PDRs to their public requester. Coordinators should be considered integral to the open data decision making process: they are not only on the front lines of the public disclosure decision making process, but are also the employees who have the most contact with public requesters that an open data platform would serve.
Since WSDOT PDRs are so rich in complexities and require a team of coordinators to work in conjunction to fulfill requests, any guide created to assist in the open data decision making process must take the nuances of the request process into account. For this reason, it would be ideal to have a circumstance catalog for requested WSDOT records. According to Frederik Zuiderveen Borgesius, Jonathan Gray, and Mireille van Eechoud in their Berkeley Technology Law Journal article, Open Data, Privacy, and Fair Information Principles: Towards a Balancing Framework: “A circumstance catalog lists factors that might be considered when assessing whether, under which conditions, and how a data-set can be released.” The circumstance catalog considers the very same questions that PDR Coordinators do in their daily work. Creating a space for PDR Coordinators’ input, which agency decision makers could drawn upon, would bring knowledgeable voices into the conversation around open data.
