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The Price of Open and Free

On May 1st, a Texas law student uploaded the specs for 3D printing of a single-shot pistol to the web – specs that were downloaded over 100,000 times before the U.S. State Department asked that he remove them from his site. That same day, May 9th, U.S. President Barack Obama issued an executive order “Making Open and Machine Readable the New Default for Government Information.”

The juxtaposition highlights how open data efforts are generally considered contributions to freedom of information and the advance of human liberty, but occasionally thought of as dangerous incursions into privacy or threats to public safety.

You might recall the last time guns and open data shared the headlines south of the border. Shortly after the tragic shooting events in Newton, Connecticut late last year, a newspaper serving suburban communities just outside New York City decided to publish on its website a map of gun permit holders. As you might guess, this caused a bit of an uproar notwithstanding that the map was built on public information, information that had in fact been published by the same newspaper in 2006 (albeit without mapping or precise street addresses).

If a little knowledge is dangerous…

Data, information and knowledge are not the same thing. But we need data to generate information and information to develop knowledge (and we can also hope that knowledge will mature into understanding and then wisdom).

For any in possession of the underlying elements, we would generally consider it virtuous, and often necessary, that such data, information and knowledge be shared so that others might benefit. There may well be points where we can agree that too much information has been shared or that some data is better kept private, lest the cost or harm outweigh the public interest in dissemination, but current trends are decidedly against the gatekeepers and in favour of putting more out there.

Depending on your worldview, you may even agree that the “take the bad with the good” ship sailed a long time ago. After all, the option of hanging about Eden has been off the table since Adam and Eve ate from the tree of knowledge of good and evil, so how much worse can it get? Or consider the tales of Prometheus and Pandora, to whom mankind is said to owe thanks for civilization, suffering and hope.

Open courts, open access and equal justice

Against the book-ends of the dawn of man and the view of some libertarians who think it’s important that we be able to print our own guns, let me get to the point. Our legal system and system of government requires that the creation and application of laws take place out in the open. Our courts must be seen to apply the written law and (in the common law system) the rulings of superior courts. The law and those rulings must be available and accessible to all if we are to benefit from equal justice, but often this does not occur.

Many private acts and regulations of legislatures are not easily found, and many judgments are not released for publication or are only released for publication by some. This is a serious problem. To function in a fair and equitable manner for all, our system requires complete transparency as well as free and unimpeded access. This is not achievable if a judgment is only accessible through the physical court file or through a commercial service or if a province does not publish private acts of their legislature alongside public acts.

The problem is more acute in some provinces, some courts and in some legal domains (notably, family law) than others. It is also problematic among under-resourced administrative tribunals struggling to handle volume, official languages requirements or other challenges that impede their ability to facilitate free and open access. When this information is not accessible, equal access to justice is not achievable.

We already chose “open” over closed

A CanLII search for the phrase “open court” turns up over 2,700 rulings spanning every federal, provincial and territorial jurisdiction, within which you will find judges, human rights adjudicators and others acknowledging that our system holds out openness as a fundamental principle.

Openness is not absolute and where courts and tribunals are concerned, for example, about privacy issues, they have tools at their disposal. I touched on this in a post last year and many people weighed in with excellent comments. Whether through anonymization or simply through not including as much personal detail, judges and adjudicators can take positive steps to make things a little less messy. A 2005 protocol of the Canadian Judicial Council provides guidance (PDF) as does the Office of the Privacy Commissioner of Canada (PDF). Importantly, each document assumes publication and neither recommends limiting access as a means of limiting negative impacts on litigants.

There is and there has always been a price to pay for open and free access to information.

From the tree of knowledge, to the gun permits to your divorce proceedings, opening up access to information can be messy and dangerous, but we have accepted it as necessary to promoting knowledge and understanding and to safeguarding liberty. This is a foundational principle of our society and our system of justice so we should accept nothing less than free and open access to the law from our legislatures and courts as we have already decided to pay the price.

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