Harlan Onsrud, Assoc. Professor

Department of Spatial Information Science and Engineering

University of Maine

onsrud@spatial.maine.edu

Background

Can good public decisions over issues of broad public concern be made without public participation? Not if the process is as important as the result. In addition, decision processes that fail to engage all possible knowledgeable people on an issue typically result in less than optimal decisions. True democratic decision processes take advantage of the concerns and insights of those members of the affected public who are willing and interested in contributing to the public decision-making processes. How may these processes be embedded in day to day decsion making?

Many of the papers prepared for this meeting focus primarily on enhancing the effectiveness and efficiency of community groups or enhancing their advocacy abilities through utilization of geographic information technologies. However, for the purposes of this paper, I revert to a definition of public participation as I envisioned it when the term "public participation GIS" was originally discussed (See Obermeyer 1998 for origination of the term). In use of this term I assume that a decision of general public concern is imminent and must be made. The public participation process to be invoked to make the needed decision engages not just community or grass roots groups but all interested groups in the outcome of the decision. The discussion that follows also assumes a U.S. social and legal context.

Public Participation as a Process

Public participation is seen by some as a substantive adjunct to representative government decision making in which those affected by a decision are able to make their concerns known and offer their insights and possible solutions in the process of making decisions. Public participation in decision making is not always accomplished in a constructive or satisfactory manner. Public participation should mean more than mere involvement in a closely managed government process in which both the decision process and final outcomes may be largely predetermined by government administrators or elected officials prior to involvement of representative citizens. Yet public participation also should mean more than a managed free-for-all open to all comers. The free-for-all process when invoked in the U.S. too often results in entrenched positions and resort to the courts to resolve adversarial positions.

Lawrence Susskind (1994) argues that one of the most effective approaches to citizen participation in public decision making in the U.S. context is an ad hoc process of consensus building that contributes to representative decision making, rather than supplanting it. Even for highly controversial issues, and perhaps particularly for highly polarized and multi-faceted disputes, consensus building should be strongly considered. In this ad-hoc rather than prespecified or formalized process, every affected group including government participates. Rather than a paternalistic model driven by government or a confrontational model, the consensus building approach involves joint seeking of data and information and joint arrival at agreements among representatives of government and affected groups that accommodate the concerns of all. In this process each group typically designates their own representatives. Even though the process is ad hoc, it must be comprehensive. For instance, Susskind suggests four considerations that must be paramount when a public participation process is initiated and as the process is accomplished over time. These considerations focus on issues of representation, methods of consultation, how closure is reached, and the style of discourse.

In short, representation "... should be evaluated by analyzing whether those who have a stake in the outcome of a decision are identified, whether representatives of stakeholders are fairly designated, and whether those representatives meet in a way that appropriately supplements the regular representative democratic process." Active outreach is critical to representation. In addressing methods of consultation one of the first steps is to establish the procedural ground rules by which the participatory group will operate. Joint fact-finding and joint proposal preparation are often agreed upon at the beginning in order to promote open and adequate discussions of all issues of concern. Pre-existing datasets under the control of competing parties in a dispute, such as geographic datasets, may often be considered suspect resulting in the mutual need to scrutinize the data held by others or abandonment of all existing databases in favor of newly collected data or in favor of datasets maintained by parties perceived to be neutral. The style of discourse should involve "... good-faith negotiations among parties interested in solving a problem." To reach closure, sign off authority is sought for participants from those retaining final decision making authority for each group. Closure is typically reached when consensus is reached. Consensus is reached when "... all involved agree that everyone's concerns have been heard, a good-faith negotiation has taken place, actions proposed meet the constraints of the law as well as the constraints of money,... and no one at the table can suggest an approach that better meets the objectives of everyone involved." If there is a group that cannot live with the actions or options that the rest of the group agrees to support, then a need arises to reassess whether an adequate effort was made to incorporate all concerns. If after review no further progress can be made, a participatory group will typically conclude with its findings or recommendations. In such an instance, a consensus among most groups may be said to exist and government agencies participating as parties in such a process would typically find it politically difficult to go against the recommendations of such a consensus recommendation, even though not a unanimous recommendation and even though elected or other governmental authorities retain final decision making authority. (Susskind 1994)

The Assumption of Legal Access

Many of us are concerned that access to official or public records after decisions already have been made or while decisions are being made is an insufficient condition for truly democratic participatory processes. Now that we have legal access to government information and other forms of information, we want more. We want access that is timely and in understandable forms so that interested groups may constructively participate with government in arriving at consensus decisions. We want technical access to data that is efficient, effective, and responsive to our specific needs. We want procedural capabilities and methods that will allow groups affected by decisions to be engaged with each other in constructive dialogue. Susskind's recommended participatory practices suggest at least one model for engaging parties in constructive dialogue that may be utilized within the bounds of our existing political and legal frameworks.

However, I submit that the assumption of legal access to information from which this approach and most participatory approaches extend is rapidly losing validity. The foundations of legal rights to access information are being undermined as we move into networked digital data environments. While citizen groups are looking forward to more meaningful dialogue they should also be aware that past gains made towards increasing the transparency of government operations and gains made in the ability to access and build upon the works of others are being eroded quietly and not so quietly.

Rights of access to information may not be sufficient conditions in themselves for allowing democratic decision making but they are critical and necessary conditions. Access to consensus building processes with government has little meaning and access to powerful GIS tools and user friendly software has very little value if one does not also have a right of access to the underlying data and information to which government and others have access.

The U.S. is unique in the world in the broad access to information that our laws support. Among the areas of the law influencing access to information, geographic or otherwise, include intellectual property law, freedom of information law, privacy law, electronic contracting law and antitrust law as well as several other areas of the law. Two generalizations about the interoperation of these laws appear germane to the topic of this meeting.

The first generalization is that the forms that these laws take in the United States allow greater access to government information at the local, state, and national government levels and use of that information than is generally allowed in other nations. For instance, Norway is the only other country I know of that has a national freedom of information law that allows citizens broad general access to the public records of government, although citizens there are not allowed typically to add value to such information and resell it without the permission of government. In addition, the U.S. goes much further since it actually imposes affirmative obligations on federal agencies to actively disseminate their information as defined by the provisions of OMB Circular A-130 (June 1993). Agencies are particularly encouraged to disseminate raw content upon which value-added products may be built by the private sector and to do so at the cost of dissemination, with no imposition of restrictions on the use of the data and through a diversity of channels. The core provisions of OMB Circular A-130 were incorporated into the Paperwork Reduction Act of 1995 (PRA) and that act additionally encourages the use of information technologies by agencies for providing public access, rather than relying on cumbersome Freedom of Information Act (FOIA) processes. With the expanded use of world wide web servers by federal agencies the cost of dissemination for many federal government data sets has become negligible and thus these data sets are now freely available to anyone with the ability to access them over the internet.

Actions have also been taken at the federal level specifically related to spatial information and agency contributions to building the National Spatial Data Infrastructure (NSDI). The Federal Geographic Data Committee (FGDC) was established by the Office of Management and Budget (OMB) in its 1990 revision of Circular A-16, "Coordination of Surveying, Mapping, and Related Spatial Data Activities." FGDC is now composed of representatives from 16 Cabinet level and independent Federal agencies. In April 1994, President Clinton signed Executive Order 12906 that called for the establishment of a coordinated National Spatial Data Infrastructure (NSDI) as part of the evolving National Information Infrastructure (NII) and FGDC was charged with coordinating the federal government's development of the NSDI. In this executive order, FGDC was given a mandate to involve state, local and tribal governments, academia and the private sector in coordinating the development of the NSDI. The roles of various parties and their relationships in moving towards a common NSDI vision are being developed over time.

Similar to the federal situation, we also have open access laws in most of our states that impose similar broad principles of access by citizens to the records of state and local government agencies. Because of this atmosphere of openness, many local municipal, county, and state governments have voluntarily been making geographic data sets available on the web for general use by for-profit businesses, not-for-profit organizations, and citizens generally (e.g. see http://recorder.maricopa.gov/recorder/imaging for an example of open web access to deeds and plats; see http:// www.ci.ontario.ca.us for an example of access to community geographic information; or see http://www.fgdc.gov for state and community clearinghouse nodes).

Rights of access to government information and the atmosphere of openness that these rights engender are currently very significant and not to be lightly dismissed. Nor should we allow these rights to be chipped away at through growing numbers of legislative exceptions for geographic information databases and other government databases.

The second generalization is that U.S. law grants individuals greater leeway to use the work products of others without permission than is typically granted by the laws of other nations. The law of copyright in the U.S. grants fewer ownership interests in intellectual works and greater access to the work products of others than in perhaps any other industrialized nation. Again, we should not lightly abandon this ability to access information sources and products produced by others.

U.S. public information principles support broad access to information in order to advance both political and economic opportunities for citizens. Four broad motives of U.S. information policy are: (1) to encourage public education and enlightenment; (2) to protect intellectual property rights; (3) to assist economic development; and (4) to protect national security (Ballard et. al., 1989, 86). All of these motives are supported to varying degrees through a balance of competing yet complementary laws.

A basic policy assumption underlying most U.S. information law is that the economic and social benefits of information will be maximized in society by fostering wide diversity in the creation, dissemination and use of information. For-profit businesses, not-for-profit organizations, government agencies and citizens all contribute to this diversity. The belief, borne through experience, is that diversification of sources and channels for the distribution of information establishes a social condition that allows democracy and the economy to thrive.

The Diminishment of Legal Access

Observation of recent actions in Congress and legislative actions at the state and local government levels suggest that the nation is back tracking on these openness principles rather than extending them. Some observations of recent lawmaking in action include the following.

1. Cost Recovery Legislation. Restricting access to public records is contrary to the plain letter language of most state open records laws in the U.S. and therefore explicit legislation is typically required to allow local governments to restrict access to their geographic data sets. Thus some state and local governments have altered their legislation accordingly and are now imposing intellectual property and ownership rights in the datasets created for public purposes and are attempting to generate revenue streams from secondary uses of the data. However, to sell government data to a few private firms that can afford it benefits primarily those privileged firms at the expense of the general public and loss of widespread general benefits to the community. Those who seek to impose restrictions on citizen access should be required to overcome the underlying policy arguments on which such laws are based, foremost of which are that open access keeps government accountable and that open access to government information has far greater long term economic benefits for a community than does pursuing revenue generation approaches.

2. Database Legislation. Recently proposed Title V of the "Digital Millennium Copyright Act of 1998" (H.R. 2281 and S. 2037) if enacted into law would severely constrain the "fair use" provisions of copyright law relative to the use of commercial datasets and would have a chilling effect on the academic and research communities. Of particular concern in the proposed legislation is the lack of definition of the term "market harm" as it would be imposed against universities. The length of time for protection of databases would now be perpetual since even minor updates in an electronic database would toll another 15 years of protection. Thus if title V was legislated, data would never pass into the public domain and it is public domain datasets that have allowed us to make so much progress in advancing both information system technologies and scientific discovery in the U.S. There is broad consensus among the research and academic community that the bill as drafted would have significant negative impacts on research and education in the nation (NOTE: Due to heavy lobbying on the part of the academic, scientific and library communities, the database provision was recently stripped from the bill. However, Rep. Howard Coble (R-NC) reportedly has agreed to a commitment by Senator Orrin Hatch (R-UT) to revisit the database issue at the beginning of the next Congress.)

3. Extension of Time for Copyright. The special genius of the United States copyright system has been its emphasis on an appropriate balance of public and private interests. U.S. dominance in international trade in current products of authorship has been made possible because of the rich and vibrant public domain passed down from earlier authors. Proposed legislation (H.R. 989) would extend the term of copyright protection for all copyrights, including copyrights on existing works, by 20 years. For individual authors, the copyright term would extend for 70 years after the death of the author, while corporate authors would have a term of protection of 95 years. Unpublished or anonymous works would be protected for a period of 120 years after their creation. The enactment of this legislation would impose substantial costs on the United States general public without supplying any public benefit. It would provide a windfall to the heirs and assignees of authors long since deceased, at the expense of the general public, and impair the ability of living authors to build on the cultural legacy of the past. The proposed extension would supply no additional incentive to the creation of new works -- and it obviously supplies no incentive to the creation of works already in existence. The notion that copyright is supposed to be a welfare system to "two generations of descendants" has never been a part of American copyright philosophy. It is not "unfair" that a work enter the public domain 50 years after the death of its author. Rather, that is an integral part of the social bargain on which our highly successful system has always been based. After supplying a royalty stream for such a long time, these old works should be available as bases on which current authors can continue to create culturally and economically valuable new products. (Extracted and rearranged from Karjala 1995). (NOTE: Both the U.S. Senate and House passed on October 7, 1998 a 20-year extension of the current life-plus-50-year copyright term.)

4. Article 2B of the Uniform Commercial Code. Proposed Article 2B proposes to regulate almost all transactions in information. It could affect everything from whether book publishers start "shrink wrapping" books to restrict sharing to whether Internet robots can make legally binding contracts for computer users who unleash them. It is a so-called "model law" that each state legislature can accept or reject. States usually adopt model laws put forward in the Uniform Commercial Code so that business transactions across state lines remain consistent. Among other effects, Article 2B could chill the "fair use" doctrine that the public and libraries depend on to share information. Like computer software, which is often packaged with the admonition that whoever breaks the seal is bound by the terms of an enclosed manufacturer's contract, so too books could be wrapped in cellophane and sold with all types of limitations. Article 2B would affect U.S. innovation - a vital engine driving business entrepreneurship and economic growth - by discouraging information sharing. (Extracted and rearranged from Samuelson 7/16/98). (NOTE: Still under active consideration even though widely opposed by very diverse groups from film studios to consumer groups.)

These are but a few illustrative examples of major attempts continually occurring in our legislative halls in attempts to restrict citizen access to public domain and government information. So although we are focusing here today on extending participatory decisionmaking within and among groups and in relationships with government, keep in mind that the assumptions of access to which we may have become accustomed when we operated in a paper world should not be taken for granted as data, information, and works of knowledge are transferred more and more by electronic means.

Expanding Citizen Rights in Information

In addition to fighting off attempts to diminish citizen access to electronic information, there is a need to develop new approaches and models that might be used to expand citizen rights to information or alter the relationship between citizens and government in decisionmaking processes.

I have argued in past writings that we are witnessing tragedy of the information commons dynamics similar to tragedy of the commons dynamics witnessed in the environmental field (Onsrud 1998). Extending from this analogy I have argued that we may draw from the methods and techniques developed by environmentalists in combating the destruction of the environmental commons and apply them to combat the diminishment of public rights in data, information and knowledge works. For instance, one of the favored and most effective techniques of environmentalists in protecting the environmental commons has been to expose a full cost accounting of the effects of actions that diminish or despoil the commons. By example, pollution is often highly illogical for a community when the costs external to the decision-maker are added in. The same economic analysis techniques may be applied to information commons disputes. By further example, "major Federal actions significantly affecting the quality of the environment" may only proceed after preparation of an environmental impact statement that must fully document the positive and negative impacts of the proposed action and possible alternatives to the proposed action. While preparation and thoughtful consideration of such statements was once quite controversial this procedure is now an accepted practice with both agency personnel and the general public and the approach has been copied by many other nations. Perhaps one way of reversing the trend of building walls around government information would be to require of government officials an "information access impact statement" for any major state or local government action significantly affecting the quality of citizen access to government information. Many additional political and legislative lessons may be gleaned from the experiences of the environmental community in protecting the environmental commons. I view these as pragmatic techniques that may be used internal to the current legal system in order to make our society more responsive to protecting the public commons in information.

Another approach that has been far less successful in the environmental realm to date has been to argue that there is something inherently wrong and unjust about the whole concept of real property ownership and to move to different models and concepts of ownership and rights in land. In order to deal with the environmental problems of the nation and the world, the argument is made that the current legal system can't support an appropriate solution and therefore we need to step outside of the constraints of the current legal and political system to arrive at systems that would be more responsive to the needs of the environment .

Vandana Shiva suggests that there is something rotten at the core of ownership claims in information and treatment of information as a commodity to be sought and sold. Rather than hone the existing legal and social models that assume that the current inequities in society are a given, she argues that there is a need to explore whole new models and theories of rights to access and use of data, information, and knowledge works. She offers a non-western, global, and community control perspective in which neither the state nor the market provide the organizing principles of how people live and how nature's wealth is owned and used (Shiva 1994, 1997).

The incremental approach in expanding rights to information within the existing legal framework and the wholesale reevaluation approaches are not mutually exclusive. Even though treatment of information as a commodity may be a social construct, information is in fact being treated as a commodity in our local communities, at the national level and throughout the globe on a day to day commercial basis as well as through the imposition of intellectual property rights laws. One may try to limit and adapt intellectual property rights laws to help ensure continued access to information and the continued development of public domain data or one may suggest complete new models or views on how control over information should be handled. Paul Schroeder is another individual exploring the latter approach. Both of these approaches should be pursued by the academic community

As we already know, access, whether in the form of technically meaningful access or legal access, does not guarantee power. Nor do consensus building or other participatory processes equalize political power. However, both are extremely useful tools for aiding in struggles to gain political power. Paul Schroeder has noted that changing the conditions of power in society would have a substantial influence on changing the conditions of access to and handling of information. Therefore the implication is that to change the conditions of access one should focus primarily on altering power bases in society. Yet, the alternative approach of directly changing specific rights in information also has an influence over power and wealth in society. If this were not the case we would not see such intense lobbying in Congress over rights in information at the current time. Near the core of this power struggle lies the debate over development of a concept of human rights that could counteract or limit existing corporate and government agency powers in U.S. society.

Empowerment and Marginalization: Changing the Power Structure

In assessing the "justice" of a particular outcome of a participatory decision making process,

Nyerges (1998) citing Lober (1995) refers to three different interpretations of "fairness." In determining where to locate a hazardous waste facility the example is cited in which the use of three different definitions of fairness would have resulted in three different optimal locations for siting the waste facility. An egalitarian interpretation of justice benefits the most disadvantaged in society and thus may be characterized as an approach that minimizes pain. A libertarian interpretation of justice provides for unrestrained interactions among individuals and therefore may be characterized as maximizing liberty. A utilitarian interpretation of justice provides the greatest happiness for the greatest number and therefore may be characterized as maximizing happiness. I was struck by the fact that these three views of justice are mirrored very closely in the U.S. Declaration of Independence in the phrase "life, liberty, and the Pursuit of Happiness."

Charles Black Jr., former Dean of the Yale Law School, recently authored a book in which he states and supports "my own life's conclusions" (Black 1997). After fifty years of professional thought and work surrounding Constitutional law issues, a major conclusion in his life has been that the "foundations of American human-rights law are in bad shape." He tempers this bold statement by going on to insist that a sound and well-reasoned basis for a national American law of human rights already exists under U.S. law in "three imperishable commitments - the opening phrases of the Declaration of Independence, the Ninth Amendment, and the "citizenship" and the "privileges and immunities" clauses of the Fourteenth Amendment. He argues forcefully and convincingly that a nation that holds itself out as a power dedicated to securing human rights must provide a basis for sound human rights for its own citizens. If U.S. constitutional law was reinterpreted to support strong human rights for U.S. citizens based on the foundations advocated by Charles Black, the resultant legal framework would protect all three forms of "justice" described in the preceding paragraph and would balance these rights against each other.

Neither protecting access to information or taking part in consensus building processes actually change power structures. However, a shift in constitutional law such as suggested by Charles Black towards strong protection of human rights would have a substantial and long-term effect on empowering groups and individuals and would greatly limit the ability of government and other powerful parties to marginalize other groups and individuals in society.

Conclusions

Providing and protecting legal access to community information is at least as important as expanding effective and efficient technical access to community information. While individuals and citizens groups continue to seek more meaningful dialogue in public participation processes there is an associated need to continue to protect and expand the rights of access to information. While expanding technical and legal access to information and continually participating in community decision making processes are necessary and highly constructive societal activities, substantial gains in power for citizens and citizens groups will require new approaches to ownership (e.g. as suggested by Shiva) or major realignments in our existing constitutional framework (e.g. as suggested by Black).

REFERENCES

Ballard, Steve (1989) Innovation Through Technical and Scientific Information: Government and Industry Cooperation. New York: Quorum Books.

Black, Charles L., Jr. (1997) A New Birth of Freedom: Human Rights, Named and Unnamed New York: Grosset/Putnam

Karjala, Dennis (1995) WRITTEN TESTIMONY of DENNIS S. KARJALA, Professor of Law, Arizona State University representing UNITED STATES COPYRIGHT AND INTELLECTUAL PROPERTY LAW PROFESSORS before HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON COURTS AND INTELLECTUAL PROPERTY on H.R. 989. A Bill to Amend Title 17, United States Code With Respect to the Duration of Copyright, and for Other Purposes. Rayburn House Office Building, Washington, D.C., July 13, 1995

Lober, D.J. (1995) Resolving the Siting Impasse: Modeling Social and Environmental Locational Criteria with a Geographic Information System, American Planning Association (APA) Journal, Autumn, 482-495.

Nyerges, Timothy and Piotr Jankowski (1998) Empirical Research Strategies for Investigating the Use of Public Participation GIS, International Workshop on Groupware for Urban Planning, Universite C. Bernard Lyon I, Lyon France, Feb. 3-4, 1998

Obermeyer, N.J. (1998) "The Evolution of Public Participation GIS", Cartography and Geographic Information Systems, 25(2), 65-66.

Onsrud, H.J. (Expected 1998) "The Tragedy of the Information Commons" in Policy Issues in Modern Cartography (Elsevier Science) In press.

Samuelson 7/16/1998, E-mail to Cyberia-L

Shiva, Vandana (1994) "The Recovery of the Commons", Alternative Radio, Colorado College, Colorado Springs, September 24, 1994, PO Box 551, Boulder, CO 80306

Shiva, Vandana (1997) Biopiracy: The Plunder of Nature and Knowledge Boston: South End Press

Lawrence Susskind (1994) "Overview of Developments in Public Participation" in E.C. Lichtenstein and W.T. Dunn, eds., Public Participation in Environmental Decisionmaking, ABA Standing Committee on Environmental Law, Washington, D.C.: Division for Public Services, American Bar Association