Schedule 56 of the Budget Bill introduces a new statute, the Simpler, Faster, Better Services Act, 2019 (SFBSA), that, once passed, will take effect when proclaimed by the Lieutenant Governor. That passage is a foregone conclusion is evidenced by the fact that the role of Chief Digital and Data Officer, created under the statute, has already been filled with the announcement of the appointment of Hillary Hartley. The goal of the SFBSA is to “promote the transformation of government services in Ontario” (s. 1). Among other things, the Act provides for the appointment of a Chief Digital and Data Officer (CDDO) who is tasked with promoting the development and implementation of public sector digital services; providing advice to public sector organizations on digital services; assessing the design, development and effectiveness of these services; and promoting the use of data and effective data management (s. 3(1)). The CDDO will also promote the proactive publication of data by public sector organizations and involve the public in the design and implementation of digital services. Under s. 3(3) of the Act, the CDDP must also establish a digital and data action plan which, in broad terms, will develop initiatives to promote the adoption of digital services, and the improvement of existing services. The action plan will also promote the development of “effective data management and data sharing across public sector organizations”, and will specifically promote the use of technology that is scalable and interoperable. The action plan must also set targets and indicators for the evaluation of progress, and is to be reviewed and adapted as necessary at least every three years.
The CDDO is also charged, under s. 4 of the Act with setting standards for digital services and for open data. The open data standards can include “requirements to make specified datasets publicly available”, and will also include formal and technical standards for the data. This can include standards with respect to metadata, as well as the frequency and manner by which data sets are to be made public.
Interestingly, while this section is described as addressing “open data standards”, the requirements in the SFBSA actually relate to making public sector data “publicly available”. This is subtly different from open data in the classic sense. For example, s. 4(3)(d) allows the CDDO to set “the terms by which a public sector organization shall grant licences for the use of the datasets it publishes”. This suggests that some data might be made publicly available under more restrictive terms and conditions than traditional open data. Examples of possible restrictions might include non-commercial use limitations, or requirements that no attempts be made to reidentify deidentified data in the licensed data set. They might even include fees for access to some data sets, as nothing in the SFBSA actually requires the data to be provided free of charge. The statute also provides for the enactment of regulations, and these regulations can formalize the adopted standards.
The CDDO is also charged with maintaining a catalogue listing and describing all public sector datasets, including those that are required to be publicly available. The only exceptions relate to information that must be kept confidential under a law of Canada or Ontario, or information relating to “confidential law enforcement activities or other matters involving public safety or security” (s. 4(10)). The inventory and the standards developed for public sector data must also be made publicly available.
The SFBSA sets out, in s. 5, principles that must be followed by public sector organizations in developing and using digital services. Section 5(2) identifies principles that should guide the management of data and its public release.
The CDDO has some enforcement powers under the legislation in the sense that she may find organizations to be non-compliant and order them to change their practices, and can provide notice of non-compliance to the Management Board of Cabinet.
It should be noted that this statute is meant to apply both to public sector organizations (government ministries and public bodies), as well as “broader public sector organizations”. This latter category will include organizations referred to in a Schedule to the SFBSA, notably municipalities, school boards and universities, and some health services facilities.
Overall, this is a very interesting piece of public policy. Although provincial, federal and municipal governments across Canada have made commitments to open data, Ontario is the first to legislate open data requirements (or at least ‘publicly available data’ requirements). The establishment of a CDDO with a legislated mandate is also a positive commitment to improving digital and data services in the province. The principles that will guide digital services development and delivery as well as data management are important, straightforward, and public-interest oriented. The importance of this legislation, as Amanda Clarke says in her excellent post (with more to follow), “is exactly why this policy change demands broad and sustained scrutiny”.
While the substance of this statute is interesting and important, the process behind it is problematic. In February 2019 the Ontario government launched its data strategy consultation. The first step (which ended in March) was to accept submissions from the public. The second was to establish an advisory panel that would continue consultations and ultimately report in the Fall of 2019. Yet the SFBSA seems to contain precisely the kinds of measures contemplated by the data strategy consultation. In doing so it calls into question the genuineness of the consultation process. The process deficiencies are further reinforced by the fact that the SFBSA is crammed into an omnibus budget bill which will ultimately pass with a minimum of scrutiny and debate. It’s an interesting statute and an important piece of public policy, but the public and democratic process around it is not good.