Deconstructing KXAN...
Jim Swift, over at KXAN, recently did
a piece on open government. As his story had a few inaccuracies and some misleading statements, I would like to take the time to set the record straight on a few things.
First, the meat of the problem.
Mr. Chapman, who Mr. Swift interviews, pulls out as an example crime information used by gun dealers in Los Angeles to promote guns in high crime areas. This was taken by Swift to be an example of openness "jeopard[izing] the safety and privacy of citizens."
I'm sorry but I don't see the connection.
Owning a gun is legal. Marketing guns to customers is legal. Neither one has anything to do with privacy of citizens. Could crime information be the privacy invasion Swift or Chapman was thinking of? I don't see how. The rights of society to know the when and where of crimes outweighs the rights of suspected criminals. This is a decision we as Americans made long ago and the OGO does nothing to change the status of crime info as an open record. To put this information online is, in fact, a decision that the City of Austin made long ago as well. That is why you already can get crime information online here in Austin. But I couldn't get the
City's "Crime Viewer" software to work, and the
crimes sorted by neighborhood page shows that crime apparently stopped in Austin in 2003. Only
the text files available online show up-to-date information about crimes. Crime information, I note, that does nothing to even remotely invade privacy.
How about security? This blog isn't about gun rights and laws, but it is a hard stretch for me to tie the OGO Amendment to the debate about gun ownership. We shouldn't hide the community from knowing about the crimes that happen sometimes in their own backyard, and to say that the OGO somehow harms the safety of the citizens of Austin is downright misleading.
Next, I need to clarify an inaccuracy in the report. The local organization that fights for your cyber-liberties is called
EFF-Austin, and I am on the Board of Directors. EFF-Austin has a rather unique history.
As it states on our website, we were originally intended to be one of the first chapters of another organization, the
Electronic Frontier Foundation or EFF. However, EFF decided long ago not to have chapters and we continued to exist as a separate entity with the name “EFF-Austin”. We were, in fact, formed out of the very first legal case that the EFF had which involved a dispute between Steve Jackson, one of our founders, and the Secret Service.
Thus Gary Chapman is on the Board of Advisors of EFF-Austin, not the EFF.
I would also like to take this opportunity to explain EFF-Austin's position on the Open Government Online Amendment. EFF-Austin has officially endorsed the OGO Amendment. In fact, I was present and contributed to the drafting of the amendment and currently work on the campaign to get the amendment passed. Chapman is, of course, on our Board of Advisors, but does not officially represent EFF-Austin. EFF-Austin fully supports the Open Government Online Amendment and supports an open and accurate debate about it.
Sen. Cornyn explains why openness is bi-partisan
In an interview in today's Statesman, Senator John Cornyn (R-Texas) explained why open government is a bi-partisan issue and why more conservatives should care about transparency. Cornyn is working with Democrat Senator Patrick Leahy on the Senate's version of the OPEN Government Act discussed by Rep. Smith yesterday.
Cornyn explained that though “they don't agree on a lot of other things,” the two Senators are “on the same page when it comes to open government.” Cornyn also had this to say about why conservatives should care about this issue:
I've always been amazed by the extent to which conservatives haven't recognized the inherently conservative argument in favor of open government. If the people are going to be in charge, then the people need to know what's going on and hold their elected officials accountable. To me, that's the ultimate conservative argument in favor of open government – also, the ultimate argument in favor of democracy.
If some of the informal conversations that I've been having are any indication, Austin's Open Government Online Amendment is something that also cuts across party lines. Nobody wants wasteful insider deals when it comes to how their tax dollars are spent, and this is just the kind of reform that will help prevent wasteful spending.
More on how the City of Austin exaggerated its Open Government Online cost estimate
I've written earlier how the city legal department's grandiose assumptions about the scope of the Open Government Online amendment caused the City of Austin's IT department to overstate its cost estimate. Then a city staffer revealed on his private blog how the choice of software for the job might save millions in licensing fees from the City's estimate, even with their cadillac assumptions. Now cleanwater-cleangovernment.org has posted a document pointing our additional places where the City's cost estimate is overstated. Here's the complete text:Why the City of Austin Cost Estimate for the Proposed Open Government Online Charter Amendment is Inflated
Fearing public scrutiny of excessive lobby influence, Austin city officials have issued an estimate of $36 million for implementing the Austin Open Government Online charter amendment. The city's figure dramatically overstates the real costs. The City’s estimate has little to do with how the amendment would actually be implemented. Instead, the city merely multiplied out current costs and assumed the most cumbersome possible methods of implementation in order to come up with the highest cost possible.
In reality, the shift to a paperless system and dramatic economies of scale would mean the costs will likely be much lower than the city has stated. All over the globe companies are investing in paperless systems to SAVE money – only in Austin city government, we’re asked to believe, are such savings impossible to achieve. Here are the main reasons the City’s costs are overstated:
* The City's estimate assumes City business will still largely be done by paper, and thus a large part of the cost estimate consists of hiring a bunch of people to scan and organize documents. This is absurd – it’s the technological equivalent of estimating costs for photocopying by calculating how much it would cost for monks to transcribe every document by hand. The shift to paperless information systems is already in process because it saves large sums of money.
* The City’s estimate incorporates large expenditures to create functionality not required in the amendment – for example, staff and systems for vetting and placing online email correspondence for council members, city managers and department heads in “real time.” While that would be expensive, it’s simply not required by the amendment.
* The City admits its estimate completely excludes expected savings from more efficient operations and eliminating the need for the staff and copying costs required for responding to public information requests.
* The City calculates $7 million in costs for its EDIMS document management system by taking costs for scanning technology and software licenses it currently uses, then assuming virtually every city computer would require a copy. Current licensing arrangements require every computer to have a separate license, but other web-browser-based systems would allow many City employees to access the system without each desktop computer having a separate license. Rather than estimate costs based on these cheaper systems, the City assumed it would only use the technology it currently employs, generating this astronomical figure.
* The City admits that its staffing figures – estimated at $6 million per year, recurring – are the “softest” figures in the estimate. Staffing costs are inflated because of false, highly politicized assumptions that govern what that IT department was asked to cost out. Thus, even though the amendment does not require real-time publishing of email online (it leaves all such decisions to the city council to decide when they implement the charter amendment through ordinances), the cost estimate includes hiring many new staff to vet hundreds of thousands of email each month to put online in real time. Since the city’s estimate takes into account no possible savings, it ignores the possibility that changing protocols to use paperless systems would decrease, not increase, staffing needs, e.g., if the city had to respond to fewer open records requests.
* The city misreads the amendment to require immediate transition to online disclosure of all public information. This leads to millions in consulting costs for immediate implementation. The truth is that only a few areas of city business must be posted online within one year of passage; the remainder must be done as “expeditiously as possible” and "to the greatest extent practical." This “practical” basis means implementing public disclosure of city information on the internet as soon as it becomes possible, on a timeline that makes sense, in a practical manner that would SAVE taxpayer money, not cost them more.
* The City estimates it will need more than 1,500 new desktop computers to implement the system, but most of these are replacements they’d have to purchase anyway. Plus, if the city used a browser-based document management system instead of the specialty software it currently uses, most of those hardware purchases would be unnecessary.
* The City estimates more than $10 million would be required in consultants’ fees, but its estimate contains almost no detail about what those consultants would do or how the number was arrived at. While some consulting costs might be necessary, this number appears to have been plucked out of thin air.
* The City estimates roughly $1 million to give the public access to information they already intended to give to developers, city vendors and candidates for tax giveaways. This is likely dramatically overstated since they already planned to give people outside city government access to most of this information. Giving the public direct and timely access is only a minor change to the city’s system. With greater public scrutiny citizens can help eliminate wasteful spending and needless tax giveaways.
Austin isn't alone
Open government, open records, and gaining access is not just a problem here in Austin. The federal government is having problems with access as well.
Two of our Texas legislators are working to improve access at the federal level. U.S. Representative Lamar Smith and Senator John Cornyn are sponsoring the Openness Promotes Effectiveness in our National Government Act of 2005, or the OPEN Government Act. This act will increase the effectiveness of Freedom of Information Act (FOIA) requests to get information out of the federal government.
In today's Statesman, Rep. Smith explained that FOIA “performs a vital check on the federal government ... [and] protects our open system of government and ensures that the government responds to the American people.” Rep. Smith and Sen. Cornyn designed the OPEN Government Act to “give the public more access to information and more insight into the workings of government.”
Sounds to me if you just substitute “Open Government Online Amendment” for FOIA that the two pieces of legislation have the exact same rationale.
Today's Statesman shows why we need the OGO
This editorial in today's Statesman reads like a laundry list of why we need open government and explains why there has been such a negative reaction on the part of the City to this amendment. Among the list are the need for development information to be easily accessible, the need to know about civil suit settlements, the need to know about Police misconduct, and the need to prevent backroom development deals. All things that the Open Government Online Amendment will require the City to disclose.
The editorial also shows why the City doesn't like it. As the author put it, top City officials are falling prey to the urge to “hold secrets, hide documents and keep voters and taxpayers in the dark.” This helps to explain why the Initiative and Referendum process is the only way this kind of clean government can happen. Only outsiders, with no stake in keeping the secrets, can get this sort of reform out for a vote. The City Councilmembers and other top officials such as the City Manager, with a direct incentive to keep the public outside of the system would never come up with this kind of reform on their own. As a result, concerned citizens organized and pushed for reform by asking (and receiving) the signatures of over 20,000 registered Austin voters to give the people of Austin the chance to say how their government should be run.
Using open source and free software...
Scott Brown, City employee and open source / free software advocate, has just posted
this comprehensive plan on how the City can implement the Open Government Online amendment by using or modifying existing open source software packages. For those readers unfamiliar with the term, "open source / free software" describes a type of software that allows anyone to change it (not something normally allowed) for free. Yes, that means in this case both free as in beer and free as in freedom.
Open source software was an inspiration for parts of this amendment. By allowing anyone to see how the software works, and to change mistakes or add suggestions, the open source process creates better, more flexible software. The OGO amendment aims to do the exact same thing. By allowing all Austinites to have access, we will have a better, more flexible City government.
Austin's Open Government Online Amendment Analyzed
"What's really in Austin's Open Government Online charter amendment? Is it really so detailed and incomprehensible? See for yourself.
"Jordan Hatcher of the Electronic Frontier Foundation-Austin and Kathy Mitchell, president of the Central Texas chapter of the ACLU, have produced this section-by-section analysis of the proposed Austin charter amendment and what it does. Here's the document (rtf)."
From
ACLU of Texas
On privacy and practicality: Must emails go online?
SECTION 3: Open Government Online. The City must, as expeditiously as possible and to the greatest extent practical, make all public information available online in real time and accessible to the public.
A
commenter points out the crux of the confusion about Austin's Open Government Online charter amendment, and it's good to get the issue out on the table, because it's exactly the City's misleading argument: Many are pretending that the sentence above must be interpreted to say the City has no choice but to put every conceivable scrap of information in city government available online immediately, including citizen emails to city council.
At that point, of course, the sky would fall, Austin would have no choice but to raise taxes, litigation would bankrupt the city, blah, blah, etc. ... anyone who was around during the SOS campaign in 1992 or the developer-environmental feud since then has heard all the arguments before. But is it true that sentence leaves the City no discretion?
Our commenter describes exactly how city legal staff got to the conclusion that email must go online in real time. Plucking liberally from different sections of the charter amendment - while ignoring the one, specific section about email - the anonymous commenter finds:
SECTION 3: Open Government Online. The City must, as expeditiously as possible and to the greatest extent practical, make all public information available online in real time and accessible to the public.
then "public information" is defined:
SECTION 4: Public Information.
The term “public information” means information that is required to be produced under Texas Government Code § 552.021. Public information also includes the following categories that must be produced in response to a public information request:
...
(E)EMAILS RELATED TO CITY BUSINESS. Email or other written electronic communication to or from a public official concerning City business is public information, including communications to or from privately owned email accounts or computers.
Thus, says our critic, "This clearly requires e-mails to or from a city official to be posted on-line in real time."
But does it?
Let's review. First, the writer ignores the
specific section on email in the
charter amendment; for the record it only requires additional archiving. Taken together, the section defining email as public information and the section requiring it to be archived ensure that no one deletes their email--the purpose of that language. But to the point, if the amendment passed would the sentence quoted above
require publishing email online?
Under current open records law, emails to and from city officials about city business are public information already subject to personal privacy restrictions and various public information act exceptions. I've probably looked at thousands of emails about government business over the years, certainly I can say hundreds without thinking twice, in response to public information act requests to various agencies. So whether emails are public information isn't anything this amendment can change:
it's already true. The council could choose to post them online right now if they wanted, but because it's technically impossible (or at least $36 million-type expensive) and also impractical, and potentially privacy invasive, and for a variety of other reasons, they choose not to do it.
So what would be different? The charter amendment REQUIRES council to put certain information either online or in the case of email, to be archived, then it tells city council to put other public information online to the greatest extent "possible" and "practical," and where it wouldn't violate personal privacy. But council gets to decide how to define possible and practical, just like state law gets to define whether emails are public information and the courts have defined personal privacy.
The Open Government Online charter amendment tells the city to presume information should be online if it's possible and practical to do so and if it doesn't violate anyone's privacy. Practical, meaning cost-effective, practical meaning it doesn't violate anyone's rights or give unfair advantages, practical meaning it's reasonable from a management perspective. Practical gives the city council all the leeway it needs to decide that certain public information needn't be online. Practical lets them decide to publish information in two weeks instead of "real" time when there's procedural or structural reasons to do it that way. And the amendment specifically tells the City to protect people's privacy and never to construe the amendment in a way that doesn't.
To concoct impractical, privacy-invading scenarios then claim they're required ignores the intent and plain language of the charter amendment. There will be a lot of public information besides email the council will decide is impractical to post, in real time or otherwise, and the amendment gives them complete discretion to make that judgement.
They're putting a pricetag on a decision they haven't made yet, assuming the grandest, most expensive possible vision for what could be a much smaller, less privacy-invasive project if they approached it with the seriousness that would be required after passage.
The whole line of argument is a distraction, a temporary way to avoid talking about the things in the amendment the Mayor and Brewster McCracken are
really unhappy about - like making more information public about lobbyist influence and tax giveaways, or
information about police misconduct at APD that's already public at the Travis County Sheriff and more than 2,000 other Texas law enforcement agencies. And yes, their meetings with lobbyists.
For most city information, though, with the exception of a few, specifically mandated items, the city council will still control exactly what goes online. Yes there are several things in the amendment specifically required to be published online or archived, and some of those will cost money. But they're pretty specific, in most cases making public information the city already maintains for insider use, anyway. Email would fall into the category of public information the city must post only if it's "possible" and "practical" to do so. Because this is only a charter amendment to be implemented through city council-approved ordinances over which they'll excercise complete control, the city council will get to define those terms, what's practical and impractical.
In theory they could
choose to put email online in real time -
just as they could choose to do so now if they wanted - if they decided it were "possible" and "practical," but in reality I doubt they ever would. And I doubt from their recent rhetoric that any of them think $36 million would be practical, either. This whole public debate has devolved into silliness.
There are some legitimate critiques of the things that ARE in the Open Government Online amendment - for example, the Mayor thinks that if the public knew the details of city tax giveaways it would reduce his ability to cut back room deals. That may well be true. But the issue is getting drowned out by the council's and opponents' opportunistically broad claims about the amendment's scope.
If we're going to vote on the amendment, we should debate what's actually in it.
John Kelso had better be choking
The following was sent in response to the Austin Statesman's humor columnist John Kelso, who
recycles false allegations about the Open Government Online charter amendment. Here's the note I wrote to Kelso, cc'd to Statesman editor Rich Oppel, on behalf of ACLU of Texas:
Mr. Kelso:
If you're going to do satire about the Open Government Online charter amendment, that's fine and I say have fun. But when you tell your readers "seriously" then state something completely false, that's a smear job. Specifically:
"Seriously, one of the ridiculous features of the amendment that would put ALL of the city's public information online is that you'd be able to call up what your City Council members had to say during happy hour — as they said it.
"I'm choking if I'm joking."
That's just wrong. If councilmembers had a meeting at happy hour (and a meeting is different from a casual conversation, which doesn't have to be recorded), under the amendment they would only have to disclose (later, when they get back to their office) that they'd had a meeting and who they met with. What you've written is patently false and deserves a correction . For you to claim such conversations would be public is TRULY a joke. Choke away. Indeed, your whole description of the amendment was flawed. Like the amendment's opponents on council, your interpretation plucks out one word, "all," without including any of the caveats in the same sentence, like saying the city should only do so when "possible," and to the extent "practical."
It's funny to me that, as a humorist, you don't see the real irony here: If your doctor or accountant was handling your business with a drink in their hand, you'd have a field day with it, and most people would think they should know if that's the case. But you're actually DEFENDING city councilmembers' right to secretly handle city business while inebriated. Now that's funny. When lobbyists who bill by the hour go home from their happy hour meetings with councilmembers, they record the meeting in a lobby log and report it to their clients who pay the bills. For councilmembers, taxpayers foot the bill. It's not asking too much to require that if they're going to do city business tucked away somewhere in a bar instead of city hall, that they disclose it just like the lobbyist across the table from them does to their employer.
I can assure you that if the amendment contained any of the privacy-invading aspects that you and the City Council's misleading ballot language claim it does, the ACLU of Texas and the ACLU Central Texas chapter wouldn't be supporting it. But the negative spin you're promoting is false. The amendment simply doesn't require anyone to put email online or record conversations in bars. These are smear attacks, not factual ones. The plain language just does not support the interpretations given - the amendment has been misrepresented by its opponents and by your newspaper.
Though I know any appeal to reason may be lost here, I'd also ask you and your paper to remember that this is just a charter amendment. The city council would get complete control of how to INTERPRET what's "possible" and "practical," so there's really no danger they'll interpret it to require what you're ridiculously, but "seriously" claiming.
I'll be looking for that correction. Or news of your recent asphyxiation.
Sincerely,
Scott Henson
ACLU of Texas Police Accountability Project
