03 Oct The continuing education of Christine McCulloch, among others
Early last month, Contrarian revealed that Nova Scotia’s Chief Electoral Officer had deliberately made her latest report of political donations harder to use by publishing them in an image-based PDF format whose text could neither be searched nor copied and pasted into another document.
With help from hacker-readers, Contrarian republished the data in the searchable, text-grab-friendly format McCulloch used for previous years’ reports.
I’m not done with this topic. Several generous readers have converted the open PDF file we published into an Excel database file, thus enabling much broader use of the interesting political data it contains.
I will post that Excel CSV file soon, along with a challenge to encourage innovative projects that might help Nova Scotia officials, and even McCulloch herself, grasp the democratic potential they could unleash by giving citizens fuller access to data their taxes paid to gather.
McCulloch contended that crippling the campaign disclosure report was necessary “to protect contributors from ‘data-mining.'”
It turns out the Appeal Court of Nova Scotia has already adjudicated this issue in a case called O’Connor v. Nova Scotia, in which the court upheld a citizen’s right to obtain data in its original format (a Microsoft Access database file in this case).
The O’Connor in question is one Dan O’Connor, then chief of staff to a series of NDP leaders, now chief of staff to Premier Darrell Dexter. His lawyer was Graham Steele, now Minister of Finance.
The format issue was one of several considered by the courts. The trial judge had, at O’Connor’s request, ordered release of the documents in the original Access database format, instead of the flat, McCulloch-style PDF offered by the province. The Appeal Court upheld the order for release in Access database format, but went out of its way to avoid making this requirement a precedent. Mr. Justice Jamie Saunders, wrote the unanimous decision [my emphasis]:
 The [province] complains that by, in effect, ordering the government to provide the information to Mr. O’Connor in the Access format, the chambers judge exceeded his jurisdiction and set a dangerous precedent.
 Technically the [province] is right. There is no authority in the FOIPOP Act enabling the judge to do what he purported to do when he said:
…it only makes sense to provide all the relevant information in Access format, and I so order.
 However, it is hard to fault the chambers judge’s directions. The Access format had already been prepared by government. In other words it was “on the shelf” and immediately available to the respondent at no additional effort, expense, or inconvenience to the government. In those circumstances, it seems to me to be perfectly reasonable for the chambers judge to have given the direction he did. This ought not to be taken as establishing an unwarranted or unnecessary precedent. As the chambers judge himself recognized in the very next line of his judgment:
By doing so I am not saying that all FOIPOP Act applicants shall have their choice of formats. This aspect of my ruling is specific to the facts of this case.
A former Freedom of Information and Protection of Privacy Act administrator offers the following thought:
Governments do worry, legitimately, about releasing information that can be turned into solicitation lists.* With today’s technology, it is a snap to convert any list that combines names and addresses and/or telephone numbers into a mailing list or a phone list.
Section 20(3)(i) of the FOIPOP Act says that the release of personal information is presumed to be an unreasonable invasion of privacy (and hence prohibited) where “the personal information consists of the third party’s name together with the third party’s address or telephone number and is to be used for mailing lists or solicitations by telephone or other means.”
This is a very curious provision, because it is the only section in the FOIPOP Act, of which I am aware, that prohibits disclosure based on the applicant’s intended use. For all other purposes, the applicant’s intended use is irrelevant.
Section 20(3)(i) poses a real conundrum for government. How is government to judge what the applicant’s purpose is? What if the applicant doesn’t tell the truth? What if the applicant changes its mind? What if the original applicant doesn’t want it for a mailing list, but passes it on to someone else who does?
In the end, what the government tends to do is ask “Could this be used for a mailing list?” And if the answer is “yes,” they tend not to release it.
Contrarian doesn’t know what’s in the mind of provincial officials, but this has the ring of truth. In effect, the possibility that personal data could be converted to solicitation lists is trumping other considerations. That outcome was clearly not the legislative intent, which applied the exemption only to cases where the data is to be used for solicitation, etc.
In any case, it’s not even clear the FOIPOP Act applies to McCulloch. She reports not to government but to the legislature. It’s not clear her office fits the definition of a public body under the FOIPOP act.
What would be helpful here is a much deeper understanding on the part of provincial officials as to the commonweal-affirming potential of the open-data movement that is sweeping progressive jurisdictions throughout the world, producing a new universe of citizen-empowering, economy-building tools. With its substantial cohort of tech workers, Nova Scotia ought to be at the forefront of this movement.
Contrarian is hatching plans to use our restored and enhanced version of McCulloch’s artificially crippled data as an illustrative example. Stay tuned.
* I say this worry is vastly overblown. Conversion to solicitation lists happens less often than fear-mongers suppose. The risk of harm is almost always low. The potential benefits of open data are great.