Thursday, 19 April 2012

Open Government: Toward Greater Transparency and Improved Constituency Services

Consistent with the principles espoused by the Open Government Partnership (OPG) [1] the Government of Canada is committed to cultivating greater transparency by focusing on three key strategic pillars:
  • Open Information designed to make it easier for constituents to find and access information by streamlining document and records management life cycle processes and by empowering citizens with single point of access to heterogeneous information sources such as publications, web pages and data from laptops, mobile devices and from tablets; 
  • Open Data, the objective of which is to provide government published datasets in a manner that may be repurposed for both academic research and commercial purposes; and
  • Open Dialogue, the focus of which is to cultivate interactions with constituents by leveraging the ephemeral nature of social media technologies as a means to seek input to and gage constituency sentiments relating to government policies.
Recently the Government of Canada published its Action Plan on Open Government[2] which outlines the go forward strategy for “fostering the principles of open government”. The Action Plan will be reinforced with a Directive on Open Government which is expected to be effective in fiscal 2012-2013. The strategic outcome of the Directive on Open Government is to “provide guidance to 106 federal departments and agencies on what they must do to maximize the availability of online information and data, identify the nature of information to be published, as well as the timing, formats, and standards that departments will be required to adopt. The clear goal of this Directive is to make Open Government and open information the 'default' approach.” 

Delivering on the promise of this ambitious agenda requires a coordinated effort that encompasses legal, policy and technology considerations. For one “open data” implies that its availability is unencumbered by privacy and security restrictions.   Addressing this issue is one of the principal tenets of the Action Plan on Open Government by providing a shared services-based document and records management platform designed to promote better record classification, declaration, retention and disposition best practices. Second, use of “open data” requires a licensing regime which empowers third parties to re-purpose content published by the Government of Canada.  The absence of such a licensing framework may create legal challenges as Copyright law protects original expression of ideas and under certain circumstances also protects the arrangement of raw data that requires some level of skill in compilation.[3]  Removing such restrictions fosters innovation by virtue of which such information may be leveraged for the public good. In fact, the Action Plan on Open Government contemplates the implementation of a “universal Open Government License” that obviates the potential legal impediments in leveraging published Government of Canada information.  It is interesting to note that very recently Canada Post launched a law suit for alleged copyright infringement by, a website that provides geocoding services based  crowd-sourced database relating to Canadian postal codes.  The statement of defence is based on the argument that postal codes are facts and as such are not copyrightable.   Having clarity under which published Government of Canada information may be re-used is integral to the long term viability of the Open Government initiative.

Another interesting dimension of the Open Government initiative is one of economics.  Some studies suggest that there should be some form of cost recovery associated with providing such breadth of data for general consumption by corporations, and by citizens.   However the prevailing consensus is that the effort and costs associated with administering such a scheme would far outweigh  revenue streams that may be realized.  In fact such a scheme may well serve as a deterrent to accessing such information.  A far better approach is to encourage unfettered usage as it may stimulate innovation and thereby increased corporate and individual tax revenues collected by the Government from secondary publishing and associated services provided by the private sector.

Open Government may have profound transformative implications – that is democratization of information that has the potential to empower citizens to engage more directly in the policy formulation process on the one hand and stimulate private sector innovation by leveraging the data on the other hand. It may also have efficiency implications in “outsourcing” service access and delivery to constituents thereby reducing delivery costs while improving constituency service levels. Equally important is the network effect associated with open data. Metcalf’s Law states that the power of the network increases exponentially with each additional node added to the network. The positive implications of the network effect are evident in examples such as the human genome project[4].  The opportunities inherent in the Open Government initiative are enormous as unfiltered data may be transformed into meaning and applied in innovative ways in the form of knowledge and wisdom. The Open Government initiative is a step in the right direction although some argue it should go farther and faster.[5]

[1]  In September 2011 Canada is committed to join OGP.
[3] CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 is authority for the proposition that arrangement or repurposing of data such as directories and tabular information may be protectable under copyright.
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Thursday, 5 April 2012

Minimizing e-Discovery Costs

The volume of Electronically Stored Information (ESI) continues to grow unabated. How does 2.7 zettabytes[1] sound? That is the estimated volume of electronically stored information globally. Such information spans web sites, social media, email, document repositories, databases, file systems and shared drives.

Electronically stored information is discoverable regardless of format and location. [2] Virtually all jurisdictions in Canada have incorporated The Sedona Canada Principles Addressing Electronic Discovery (the “Sedona Canada Principles”).[3] For example rule 29.1 of the Ontario Rules of Civil Procedure requires parties to identify, collect, preserve and produce ESI that may be relevant and material in a pending litigation.[4]

The cost of ESI production can be prohibitive. It is estimated that the average cost to defend a corporate lawsuit exceeds $1.5 million per case. Moreover, failure to produce ESI may result in adverse inferences. In such cases courts may grant a preservation order in the event that the moving party has reason to believe that relevant and material evidence may be destroyed the litigation hold notwithstanding.[5]

Effective document and records management best practices are of paramount importance for mitigating ESI related production costs. An Electronic Document and Records Management System (EDRMS) is an integral element of mitigating e-discovery risks. Equally important is implementation, communication and enforcement of a consistent set of policies and methodologies associated with the management of ESI. A universally accepted framework is the Electronic Discovery Reference Model (EDRMS)[6]. The model consists of an end-to-end lifecycle that encompasses identification, preservation, collection, processing, review, analysis, production and preservation of ESI.

Implementation of a robust ESI preservation strategy has many financial benefits as well may provide a shield against “fishing expeditions” by opposing counsel. For example the ESI guidelines provide that “a party may satisfy its obligation to preserve, collect, review and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching or by using selection criteria to collect potentially relevant electronically stored information.”

Technology plays an important role in helping organizations minimize ESI production costs. A study by the eDiscovery Institute[7] outlines a number of technological approaches that can significantly reduce ESI production volumes by as much as 92%. These steps include the use of hashing algorithms to identify duplicate files, the use of standardized meta-data and classification models[8], use of email threading software to identify patterns relating to initiating, forwarding, replying and attaching documents to emails.

An emerging ESI tool is what is generally referred to as predictive coding. Traditionally discovery is a linear and time consuming process of lawyers visually and manually reviewing many thousands of documents that may be deemed to be responsive or privileged. Predictive coding is a technology that automates the review process through the application of advanced semantic analysis of text and meta-data within sample documents analyzed by the software The system then “learns” how to accurately categorize and classify a larger universe of documents as responsive, non-responsive and privileged. A recent US judgment[9]affirmed the value of predictive coding as” more accurate -- and 50 times more economical -- than exhaustive manual review.”

A particularly useful and comprehensive review of eDiscovery jurisprudence in Canada may be found at:

[1] According to International Data Corporation, the total amount of global data is expected to grow to 2.7 zettabytes during 2012. This is 48% up from 2011.[2] The Canada Evidence Act defines an electronic record or document as“data that is recorded or stored on
any medium in or by a computer system or other similar device.”
[5] So called Anton Piller Order a remedy give to the moving party “should have inspection so that justice can be done between the parties… (and)…there is a grave danger that vital evidence will be destroyed”.
[8] In the context of the Canadian Federal Government compliance with Treasury Board IM and RK policies and directives are relevant.
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