Sidewalk Toronto: Critical Governance Document Not Open for Public Consultation

Throughout the course of this process, “commercial sensitivity” has been the rationale provided for secrecy. First for the initial contract signed between Sidewalk Labs and Waterfront Toronto, the Master Framework Agreement, and now for a Non-Disclosure Agreement that Waterfront Toronto’s Digital Strategy Advisory Panel was asked to sign. This panel was struck to provide one core function — to provide advice to Waterfront Toronto (not Sidewalk Toronto) on its digital plans for the Port Lands. Though Quayside is the reason for the assembly of the group, the panel is intended to provide guidance for the broader tech plans in the Port Lands.

As reported recently, members of this panel were asked to sign a Non-Disclosure Agreement in order to provide advice on the next contract in the Sidewalk Toronto deal — the Plan Development Agreement (more on that shortly). This is another step in the wrong direction on public process. The next major milestone that the parties are currently negotiating for the project is the Plan Development Agreement. As described by Waterfront Toronto:

“The Plan Development Agreement (or PDA) is a governance document meant
to guide the working relationship between Waterfront Toronto and
Sidewalk Labs as we work towards the Master Innovation and Development Plan (MIDP). It defines the roles, process, timeline, and funding in preparing the MIDP. To break that down a bit further, this includes project objectives, the scope of the MIDP, the budgeting and process for spending the US $50 million capital commitment by Sidewalk Labs to support the MIDP, termination rights, communications and government relations, among other items. In short, the Plan Development Agreement is an agreement that will govern our approach to creating the plan (the Master Innovation and
Development Plan or MIDP) — it is not a “development” agreement. The
PDA is needed to allow the project to proceed to the MIDP.”

So this is another high-level document that helps organize how this deal works. Governance. A document they’ve been talking about since… the end of last year? And while Waterfront Toronto has said it will be made public, it will be signed *before* the next public meetings, shutting out the option for public input. Those meetings are now scheduled for August 14 and 15. From Waterfront Toronto:

“The Plan Development Agreement is intended to be released publicly
once completed and approved by the Board of Directors. There is a
meeting of the Board of Directors currently scheduled for July 31, 2018 at which the PDA is to be considered.”

Any extra steps that the project team could be taking right now to support openness and transparency in the process would be the right direction. They recently extended the consultation process into next year, which is a good step. They then doubled down on a core flaw of the consultation process — talking to people at the wrong time about the wrong things. This is not an accident.

Again. Public Consultation 101: Identify the major milestones in the project and organize the meetings around them. The project team must quit the failed narrative that we need to talk about automated vehicles, clean energy, and safe streets. The conversation we need to be having is about governance. The core milestones for the deal should have been identified as the major points for transparency, community updates, and public education and consultation. The materials should have been organized around them. The Plan Development Agreement hasn’t been explained in a presentation at a public meeting. Questions about the Plan Development Agreement were never asked at a public meeting.

If this was a normal real estate development deal, focusing on governance in the public consultation wouldn’t be as critical because everyone knows the rules. This isn’t a normal real estate deal. Setting aside basic issues with accountability through Waterfront Toronto, a body that has historically used its agency well, there is nothing standard about this deal. It’s being negotiated on terms that include a joint venture that was spun up at the beginning of this deal. Sidewalk Toronto isn’t a marketing name. We’re on a full-on sideshow corporate governance adventure. The terms of which aren’t public. The passage of time doesn’t make this opacity better, it makes it worse. The parties are getting further entrenched in a separate corporate entity, the process and democratic implications of which demand a legal analysis of its own that I can’t do. But it matters and it’s been a quiet complexity that has gone under-discussed. Alas. Back to the NDA for this panel and how it relates to the public consultation problem. It’s a missed opportunity to improve the public engagement track record.

Sidewalk Toronto website (July 8, 2018)

Intellectual Property and More Theatre

Intellectual Property is listed in the Waterfront Toronto request for proposal (RFP) as one of the things that a partner could gain from this deal, specifically that Waterfront Toronto: “foresee[s] significant revenue generation and sharing potential from the Intellectual Property (IP) derived from Project.” (pg 18).

Which makes me wonder what other IP Waterfront Toronto currently has, to be the one pushing on this idea in the RFP — I will ask. In any case, the idea that a public agency, through a separate joint venture, should be seeking ways to create intellectual property is definitely a topic to have a debate and public conversation about. The RFP was written in a way that suggests intellectual property is a normative good thing for a public agency to own, indirectly possibly, through a joint venture. The rationale provided for Waterfront Toronto’s advisory panel to sign an NDA leaned on the idea of “commercially sensitive information” again. This is an unnecessarily tight and incorrect approach to take with this panel, for a couple of reasons.

The first reason is that this public consultation process has been a slow-motion train wreck for eight months. Toronto was promised a highly collaborative process that would be full of co-creation, meanwhile no one can break down the business model, and now Sidewalk Labs’ latest term for itself is that it’s “an enabler”. The vagueness continues. The likelihood that there is any intensely technical commercial material being discussed with this panel is low to none, it’s an overreach. If it’s to protect sensitive information about real estate and valuation in the context of this deal, why would it need to be shared with the digital strategy advisory panel, none of whom have been brought on for real estate advisory purposes?

What is likely, or at least plausible, is that within the Plan Development Agreement there might be a high-level framework style discussion about how to consider the commercial products that might emerge from this “lab” of Quayside. And if that’s the case, there is no reason that the discussion couldn’t be public, at least for a first pass. It’s extremely important to be having that kind of conversation in public to make sure Waterfront Toronto has public buy-in for the direction it’s taking with the commercial ideas at play here. That no one tried that approach is a missed opportunity to support public engagement. Here are a few examples of questions they could have started with for the panel, in an open meeting:

As mentioned in the RFP, we are considering doing an IP agreement regarding technologies possibly developed in this area. Is this a good idea? What are some things to consider to make sure this goes well for residents? Is this highly speculative? Do you know examples of this historically, or globally, that have worked out well? If so, why? If not, why not? What kinds of terms should be considered? What kinds of protections or frameworks for these types of deals should be considered? What if residents don’t want their aggregate or anonymized data to be monetized through product development and IP? Are cities headed in the direction of proprietary technologies or open technologies? How does that impact this approach?

These are ways to get advice from the panel on this one issue without knowing any details. If after this conversation Waterfront Toronto felt strongly that they weren’t able to get the specific advice they needed from the panel, then, maybe, proceed with this NDA.

The second reason for openness on this topic is that it would help reframe the conversation in a way that gets at all the different types of ideas or advice to consider. This might include the possible role of open architecture or products, and the approaches the City and province and federal government might want to consider for IP, if any. These are important public conversations we should be having. Before this PDA is signed, not after. This was the sole opportunity that existed to have some minor discussion about the PDA publicly, through the materials shared with this panel.

IP is yet another possible problem to add to the pile with the Sidewalk Toronto project. As Steve Munro pointed out to me, IP was part of the Metrolinx Presto deal. That deal was a debacle on every possible count. If politicians and residents are going to be sold an economic development idea that they’ll get rich through the global sale of what is created in Quayside, well, that’s one narrative to grab onto and interrogate before it’s given a full professional marketing and communications treatment. Or the idea that we should be so lucky to get the product cheaper or “free” for use in Toronto. Whichever ways this IP play is being framed, it needs to be talked about. And if the real estate deal for the Quayside property is being negotiated in some kind of speculative relation to future sales related to this IP that’s another thing to keep track of. Who knows?

We should know more. I am trying to broaden the scope of things to consider. I don’t know. That’s one problem with this all being so opaque. The public is left guessing and grabbing and having to prepare how to participate in a public process while being handed nothing to grab onto to organize this thinking. This is by design. But the guessing and grabbing has to be done defensively, in order to prepare for whatever will finally come to light.

Maybe there is nothing about IP in that Plan Development Agreement, or maybe by the time it goes public there won’t be. Maybe there is some other kind of “commercially sensitive” topic, the real estate part fits that bill. The agreement will be made public soon. It would be the right time to release the initial Master Framework Agreement as well. Rip off all the bandaids at once and bring this thing out from behind the curtain for a proper look at its governance, the actors involved, the terms on the table from the start, and the implications to consider during the time left in the public consultation. A process that has burned much time and goodwill, leaving zero room for mistakes on public engagement from here on out.