Open Government Data Policies Must Serve Democracy And Not Just Industry
Open government data policies cannot just free up data for innovation, but must also increase transparency and accountability.
The Ministry of Electronics and Information Technology recently released for comments a draft ‘India Data Accessibility and Use Policy’, accompanied by a background note, laying out a roadmap for sharing government data with the general public. The note reasons that “production, access and governance of data is central to the discourse on ‘India’s data and digital opportunity’.”
The long and short of the draft policy is that all government departments should adopt ‘open data’ policies by making available non-sensitive data in machine-readable, non-proprietary formats. This is a policy that can contribute to the public good and create private wealth at the same time. A simple and popular illustration of the benefits of open data is a transport application that uses data released by public transport companies to show users the timings of trains and buses and the exact combination of such transport that can be used by passengers to reach a specific place.
A more complicated example is the indiankanoon.org website which compiled publicly available judgments into a single searchable database thereby creating immense value for the legal community. This website would not have been available if the judiciary had made available judgments available only in scanned formats. The ‘value add’ by Indian Kanoon was in indexing the judgments and making them searchable – something that the judiciary never did on its own. The potential for using other government data for similar projects is immense.
Second Attempt At Policy For Government Data
It should however be remembered that this recent initiative by MeitY is not the first time that the Government of India has formulated ‘open data’ policies for data held by the government. Back in 2012, the Department of Science and Technology under the UPA government had announced the National Data Sharing and Accessibility Policy or NDSAP, to make government departments adopt open data policies and make available government datasets on the Open Government Data Platform. This platform does host a lot of datasets of widely differing quality. The NDSAP did not however change the prevalent attitude in most government departments, most of whom failed to adhere to basic open data principles while designing their databases or portals. Take for example the Legal Information Management & Briefing System or LIMBS designed by the Law Ministry as a docket management software for all the litigation conducted by the Government of India. Despite this database containing public information, it is not accessible to the public.
Someone in the government clearly felt that NDSAP was not up to the job and hence the need for this new policy proposed by MeitY. The only big difference between the two policies is that the new one creates an institutional framework to operationalise the government’s open data policy. As per the proposed framework, MeitY will be home to the India Data Office, while each ministry and department will have a data management unit headed by chief data officers and an India Data Council for intra-governmental coordination.
Transparency Vs Monetisation
A push by a government ministry towards sharing more government data is always welcome except there is a well-recognised danger of both industry and government using the rhetoric of ‘open data’ and ‘open government’ as an excuse to shovel more data towards private capital looking to build apps and innovate. In the bargain, the original goal of the open government movement which is to create a more transparent and accountable government is likely to be lost.
When it was announced in 2012, the NDSAP had a clearer vision of its role in furthering the mission of transparency. The NDSAP clearly traced its lineage to Section 4 of the Right to Information Act, 2005 which imposes upon all public authorities the need to proactively disclose their records to the public. The NDSAP was clear on the fact that all data collected with the help of public funds should be shared with the public.
MeitY’s proposed policy is however silent on this issue of using open data policies as a means to a more transparent and accountable government.
A simple reading of the proposed policy conveys the impression that the government is looking at this issue purely through the prism of innovation and increasing efficiencies within the government. As a result, it is unsurprising that the new policy (like NDSAP), discusses the possibility of “pricing” for sale government data that is actually required to be made available for free under Section 4 of the RTI Act. It is not even clear whether the government can simply sell government data through an executive decree without parliamentary authorisation.
Given the revenue implications, one would expect government to approach Parliament for permission to sell such data. Any such legislation will necessarily have to grapple with the prospect of diluting Section 4 of the RTI Act, which in itself is rooted in the fundamental right to speech. The Supreme Court has read the right to information into Article 19(1)(a) of the Constitution – the reasoning being that citizens cannot exercise their fundamental right to speech against the state without first being informed of the state’s workings. MeitY’s open data policy has not considered these legal complications.
Need For Legislative Framework
Even presuming that MeitY is interested in using this policy only to aid the private sector and raise some money for the government, it will have to contend with the fact that most ministerial policies are generally ignored by other ministries. This is the plain truth of the Indian bureaucracy. The only way to get all ministries of the Government of India to actually adopt an “open data” approach is to get Parliament to enact legislation mandating the same. The United States enacted such legislation in 2019 called the Foundations for Evidence-Based Policymaking Act, Title II of which is the OPEN (Open, Public, Electronic and Necessary) Government Data Act. This law was the result of lobbying by groups with titles like the “Data Coalition”, which predicted that this new law would “transform the way the government collects, publishes, and uses non-sensitive public information”.
In the process of drawing up new legislation, the government must seriously reconsider the purpose of such a law. It cannot be limited to merely freeing up data for the purposes of innovation. Rather any new law on the issue should consciously be grounded in the principles underlying the RTI Act, which is to increase transparency and accountability of government.
T Prashant Reddy is a Bengaluru-based advocate and co-author of ‘Create, Copy, Disrupt: India’s Intellectual Property Dilemmas’.
The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.