Data as public goods are considered an indispensable foundation of the information system required for an open and democratic society. As a currency of good decision-making, the foremost importance of data, also interchangeably used as statistics, lies in its power to generate evidence and make the decision-making process open and inclusive. Moreover, data are spectacular to identify the gaps in overall development, political, economic, social and environmental aspects, set the goals/targets with indicators, and address them in a more coherent and efficient manner. The democratic state, therefore, is required to enable an environment where data are properly produced, processed, archived, shared, and freely available for use and re-use as part of its obligation to guarantee the citizens’ right to access information and engage them as change agents.

Benchmarking data openness

A piece of data or content is open if anyone is free to use, reuse, and redistribute it without any legal, technological or social restriction. Open data, also referred to as open Public Sector Information (PSI), has received considerable attention in recent years as a movement to embed the culture and practice of openness in public spheres. The open-data movement did not originate in a vacuum. It has its roots in access to information and is related both with the accountability and transparency culture of freedom of information which focuses on providing information that can be easily reused for economic growth. It came to the limelight when the reformers pushing for open data started demanding proactive publication of data by governments in re-useable formats that could be accessed by the general public. The open data, thus, is defined as “a very powerful tool to reduce information asymmetries that lead to a power imbalance and foster dynamic citizen engagement”. The World Bank declared “the combination of geographic, budget, demographic, services, education and other data, publicly available in an open format on the web, promises to improve services as well as create future economic growth”.  Data openness is a necessary prerequisite for transparency, and it is being promoted around the world as part of the Open Government initiatives.

Given the widespread use and impact of public data and information, it is important for open data to meet the characteristics, including complete, primary, timely, accessible, machine-processable, non-discriminatory, non-proprietary, and license-free. The principles of open data among others are accessibility (accessible to everyone equally without asking for the purpose), non-discriminatory (free availability), machine-readable and open formats, and, as importantly, non-proprietary (open licensing). These principles set a benchmark for open data and data democracy. That means everybody has access to data and there are no gatekeepers that create a bottleneck at the gateway to the data. Its thrust is to remove the barriers and ensure equal access to data and information of public interest and importance and enable opportunities for innovation as well. In doing so, data should be available in a format in which no entity has exclusive control, and data are not subject to any copyright, patent, trademark, or trade secret regulation.

Constitutional jurisdiction

As per the constitutional mandate, all three tiers of the governments in Nepal have been producing statistics in the country. Besides the federal government, the provincial and local governments have also been involved in producing and archiving key data and information. Schedule 5 (13) of the Constitution has enlisted central statistics (national and international standards and quality) under the jurisdiction of the federal government. The particular arrangement clarifies the authority of the federal law. Likewise, Schedule 6 (6) of the Constitution includes statistics under the jurisdiction of provinces. Provincial governments have been entrusted with the overall responsibility to regulate the province-level statistics. Similarly, Schedule 8 (6) has enshrined local statistics and document collection provisions. As such, the local governments have been provided with constitutional rights on local statistics regulation and management. In order to attain the goals enshrined in the Schedules, an umbrella act on statistics/data was needed.

Nepal aims to amend Statistics Act (1958) to align the structures related to statistics with the changed federal setup of the country. It is critically important when the main law of the land has delegated the state obligations related to data to the federal, provincial and local governments. The reforms are envisaged also to fulfill the nation’s international obligations, especially UN fundamental principles on national statistics, embrace the ICT revolution and make data collection, processing, storing, publishing and use well-managed and reliable. Reforms are indispensable in view of the upcoming National Census (2021) and tracking and monitoring the progress of Sustainable Development Goals (SDGs) at all tiers of government.

In this context, Statistics Bill (2020) was registered in the National Assembly of parliament in March 2020. The National Assembly has endorsed the bill introduced to amend the laws related to statistics. The Legislation Management Committee (LMC) of the Upper House held rigorous discussions and brought significant changes to the bill. The bill has envisaged an arrangement of federal statistics system, statistics collection and publication process, federal statistics council, federal statistics office, and chief statistics officer. The legislation has also delegated authority to massively mobilize employees in the National Census along with the structural changes. The bill to amend the Act has adopted an approach to put in place a structural mechanism that is more independent than the Central Bureau of Statistics (CBS) under the National Planning Commission (NPC).

Likewise, the legislation has defined statistics as data related to economic, social, physical and environmental aspects, logs and information. The phrase ‘statistics’ is also defined to denote numerical presentation after systematic collection, presentation and analysis of such details, logs and information. The law related to statistics/data is a concern of the society at large as there are no areas and genres in the development and research which do not need data, facts and statistics. Hence, the proposed bill should be endorsed taking into consideration the fact that development plans and actions can be made accountable and participatory with the accessible use of data at local and provincial levels, not only at the federal level.

The proposed bill has not defined the statistics as public goods. Likewise, it has also not come up with the arrangement of re-use, re-distribution, and open licensing of the statistics. The provisions that any agency or public agency interested to collect data should submit an application to the office with the objective, geographical area, method and estimated cost of the data collection and the office should grant permission to that end have undermined the principles of statistical openness. It has also specified the provision of establishing access of the office to the management information system which also remains an impediment to the citizens’ right and access to the statistics. The provision of electronically archiving statistics and meta-data is an appreciative arrangement of the proposed law.

It has also come up with a provision of maintaining privacy while collecting, publishing, processing and distributing raw data. The provision of resting copyright of the statistics on the office is against the principle of statistical openness.

Room for amendment

All in all, the provisions of the proposed bill are not against the spirit and values of the open data. Still, there is a need for wider reform in the bill from the open data practice and public access to the data/statistics.

The bill has to add the phrases such as ‘fact’, ‘raw data’, ‘number’, and ‘documents’ in the definition of the statistics/data and electronic records. Provision related to restriction specified in the bill has to include the phrase ‘as restricted by the prevailing laws of Right to Information and Privacy Right’. Also, the restrictive provision such as ‘the data collection and publication on the matters affecting the country’s governance system’ has to be removed from the bill. The bill has proposed ‘certain standards and contemporary methods’ while archiving the data. This is vague. So, it should be replaced with the provision ‘data archiving shall be made in the machine-readable and re-usable format’. Embracing the principles of open data, the bill should incorporate a provision ‘collected raw data and data shall be electronically archived’ in place of merely stating statistics/data archiving.

The proposed National Statistics Council specified for the overall development and management of the national statistics system and for overseeing, directing and regulating the research related works should also include representation from the National Information Commission (preferably the commissioner), research and transparency sector expert, IT specialist and federations of local levels. The proposed legislation has specified the provision of criminalizing data users and practitioners which need to be entirely re-written taking into consideration the fact that the research/study, investigation, survey, data collection, analysis and dissemination all are academic pursuits and every citizen is free to do so. The criminalization-related provision to this effect should not be enshrined in a way to restrict academic works. In addition, the proposed bill should ensure free and easy access of Nepali citizens to the data/statistics archived and stored by statistical offices in different forms and formats.

The bill should be made further clear by widening the scope of the definition of the ‘information’ enshrined in the Right to Information Act and removing the barriers of availability, accessibility, use/re-use and re-distribution of the data as public goods. Though the bill has added the phrases such as ‘electronic’ and ‘user-friendly’, it has not incorporated the phrase ‘open data’. Therefore, additional advocacy efforts should be put in place to improve the bill which is now under consideration in the House of Representatives.