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Governance: Public consultation data

To what extent do relevant laws, regulations, policies, and guidance provide a basis for collecting and publishing data generated through and about public consultation on rulemaking?

Definitions and Identification

Public consultation processes are key foundations to the open information and data flows that data for public good builds upon. Here we investigate the transparency of a country's public consultation processes, with regard to both the data these processes generate and data about the performance and administration of these processes.

This indicator examines public consultation processes for executive rulemaking, including regulations, bylaws, and rules, sometimes known collectively as secondary legislation. The indicator is based on the presence and strength of legislation, regulations, or policies that govern whether:

  • Comments generated through public consultation processes are collected and published.
  • Notice of comment, justification, proposed policies, supporting documents, and final drafts are collected and published.
  • The responses of public officials are collected and published alongside relevant comments.
  • Information about challenges to regulations that have been passed, the grounds for challenge, and the results of challenges are collected and published.

Note: Countries may also use public consultation processes in conjunction with parliamentary legislation or proposed projects, particularly extractive projects with likely environmental impacts. This indicator focuses first and foremost on governance frameworks that apply to the data generated by public consultations for rulemaking.

If your country doesn't use public consultation processes in conjunction with regulatory matters, but does for projects or parliamentary legislation, please explain this briefly in the indicator's justification box and assess here the framework that applies to project-based or legislative public consultation.

If there are multiple forms of public consultation processes in this country—for example, applicable to different executive agencies or operating at national and sub-national levels—please explain this briefly in the justification box and assess here the most common domestic form. If there are significant differences in how you would assess other common forms of public consultation, please explain briefly in the justification box.

Starting points

  • Sources:
  • Search:
    • For recent updates to public consultation laws in the country; around the world, this is an area of increasing legislation.
    • For examples of current notices of proposed legislation and comment periods, which may mention frameworks that require later publication.
    • For news articles that mention public consultation; in many places articles appear in connection with extractive projects, indigenous sovereignty, or both.
  • Consult:
    • Experts in administrative law.
    • Legislators.
    • Journalists who specialize in the affairs of executive agencies.

What to look for?

Look for evidence that can answer the following questions:

  • Is the framework governing public consultation data provided for in law, regulation, policy, or guidance?
  • Does the framework require that an agency or ministry provide drafts of proposed rules to members of the public in advance, or does it only require agencies or ministries to provide the formal proposed rule? How are these versions published and archived?
  • Does the framework require that comments generated through the public consultation process be collected and published? Are restrictions or redactions applied to this? For example, around publishing personal identifying information associated with comments?
  • Does the framework require that reasoned responses from public officials be collected, published, and archived alongside relevant public comments? Or are responses published and archived separately—or not at all?
  • Does the framework specify that information about challenges to rules that have gone through public consultation practices, such as the number, grounds, and results of challenges, be collected and published?
  • Does the framework empower an agency or official to ensure the accurate and timely collection and publication of required data? Does it require a verification process?

National and sub-national considerations

In some countries public consultation processes and the related frameworks for the data they generate have been established by individual states, regions, or cities.

To assess countries where public consultation processes are organized sub-nationally, researchers should select the strongest example of sub-national practice, and then indicate whether this is an outlier or an example of widespread practice.

Show/hide supporting questions

Existence

  • Are there laws, policies, or regulations requiring collection or publication of this information in any form?

    • No.
    • They are being drafted, or are not yet implemented.
      Supporting questions: Please provide brief details.
    • They exist and are operational.
      Supporting questions: Please provide brief details.

  • Do relevant laws, policies, regulations, or guidance discuss the publication of open data?

    • There is no mention of data or the publication of data in relevant laws, policies, or guidance.
    • Requirements to publish data are set out in non-binding policy or guidance.
      Supporting questions: Please provide a URL to the most relevant legislation, policy, or guidance.
    • Requirements to publish data are set out in binding policy, regulations, or law.
      Supporting questions: Please provide a URL to the most relevant legislation, policy, or guidance.
    • Requirements to publish this information as open data are set out in binding policy, regulations, or law.
      Supporting questions: Please provide a URL to the most relevant legislation, policy, or guidance.

Elements

  • Provisions for definitions, kinds, and fields:

  • The framework requires the publication of notice of intent in advance of public consultation processes. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The framework requires the publication of proposed regulations. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The framework requires the timely publication of a full set of public comments generated through public consultation processes. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The framework requires reasoned responses to be published alongside comments. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The framework requires the publication of final regulations and justification. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The framework requires the publication of challenges to laws and regulations that have undergone public consultation processes, as well as their results. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • Provisions for data quality:

  • The rules/guidance empower an agency or official to ensure the accurate and timely collection and publication of required data. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The framework requires a verification process. (No, Partially, Yes) There are many different kinds of verification processes. In some cases, data is required from multiple parties engaged in an activity and that data is then cross-verified. In others, a dedicated agency or official has the authority to conduct audits, engaging with other agencies or external parties to verify information received.

    Supporting questions (conditional)

    If Partially: Please briefly explain the verification process used, and which parts of collected data the framework requires to be verified and which parts it does not.

    If Yes: Please briefly explain the verification process used.

  • Provisions for openness, timing, and structure:

  • The rules/guidance require that data is regularly updated. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

  • The rules/guidance support the collection of structured data. (No, Partially, Yes)

    Supporting questions (conditional)

    If Partially: Please indicate which section of the framework refers to this issue and explain your 'Partially' response.

    If Yes: Please indicate which section of the framework refers to this issue.

Extent

  • How comprehensive, in terms of jurisdiction, is the coverage of the laws, regulations, policies, or guidance assessed for this question?
    • They cover one or more localities, but there are many other localities without such rules/guidance, or with rules or guidance of a lesser quality.
      Supporting questions: Which locality does this framework cover?
    • They cover one or more localities and are a representative example of the kind of rules/guidance that can be found for all, or most, localities.
      Supporting questions: Please explain your answer and provide supporting urls if necessary.
    • They provide national coverage.
      Supporting questions: Please explain your answer and provide supporting urls if necessary.

Fundamental to democracy is the authority of the public and the involvement of the public in the act of governing, through voting as well as other forms of political participation. Public participation is well-recognized under international law as a fundamental human right, articulated in detail, for example, by the UN OHCHR in Guidelines for States on the Effective Implementation of the Right To Participate in Public Affairs (2018). Increasingly, as the OECD’s 2020 Innovative Citizen Participation and New Democratic Institutions: Catching the Deliberative Wave details, such political participation includes public consultation in law- or rulemaking processes. Public consultation in law- or rulemaking aligns with SDG 16.7, and is a component within Transparency International’s decision-making dimension of political integrity.

As with right-to-information frameworks, public consultation frameworks fundamentally govern flows of information between members of a public and public officials, generating a stream of data as they do. Similarly as well, it's important to collect and publish data on the performance and administration of public consultation practices both from a transparency standpoint and to assess their efficacy.

This indicator investigates the frameworks countries have in place for collecting and publishing data generated through and about public consultation on rulemaking. It pairs with a related availability indicator to compare frameworks and actual practice.