Yesterday was an active day for our Colorado clients. Early yesterday, we got word that Colorado’s Office of Information Technology (OIT) would be issuing its update Accessibility Rule. By midday, there still wasn’t anything posted on OIT’s website. I checked again around 3pm and it was posted. Then at 4:20pm, the official notice hit my inbox.
This is a big deal because Colorado is the unquestionable leader in public sector web and digital accessibility. While the rest of the country is only now beginning to worry about digital accessibility, Colorado imposed much earlier deadlines on itself, expanded its requirements to include every form of information technology (not just mobile apps and websites), and even set themselves up for monetary damages. Our society is just beginning to catch on to the importance of digital accessibility. So even if you don’t live in Colorado, it’s worth paying attention to developments in that state because it’s a harbinger for things to come.
I’ve attached both the “clean version” and the “marked up version” of the rule so that you can see the changes for yourself. In general, the new rule makes a lot of sense and aligns much more closely with the new ADA Title II web accessibility rule. This blog post goes line-by-line through the changes and some of the things I like and don’t like about it.
General Comment—OIT did a Great Job
Before I get nit picky, I wanted to start out by saying that OIT did a great job at creating a fair regulation that will go a long way to opening government digital services for people with disabilities. Here are some of the highlights:
Unlike the ADA’s “all or nothing” approach, the OIT regulation offers a number of different ways to comply. It also focuses on the important thing – making services offered by digital technology available to users with disabilities – instead of trying to meet an impossible technical standard. For instance, it includes Section 508’s “best meets” exemption. It also lets governments comply by creating a solid accessibility plan and demonstrating good faith efforts at complying with it.
Potentially Overly Narrow Definition of “Active Use”
Okay, time to get nitpicky.
The new OIT regulation makes it clear that it only applies to IT that is in “active use.” This makes perfect sense from a civil rights perspective and aligns with the ADA because it focuses on technology that affects current government programs, services and activities.
Active use: For public-facing ICT, active use means ICT that is currently used by members of the public as a primary means to apply for, gain access to, or participate in a public entity's services, programs, or activities. For internal-facing ICT, active use means ICT currently used by employees to perform their job duties. ICT in active use includes the authorized, official version or versions. ICT in active use does not include previous versions that may still be available, archived content, archivist materials, working products, deliberative materials, or drafts.
The problem I have with this definition is that it leaves a lot of room open for undermining the needs of people with disabilities. What if one of the major ways of accessing a government service is through the website, but a person with a disability can’t definitively show that it is the PRIMARY way of accessing that service? Does that mean a person with a disability needs to use an alternate means (such as visiting the government office) even if it takes substantially longer to get the same service? Similarly for internal use ICT, “active use” is limited to technology used by employees “to perform their job duties.” While this also seems sensible, there are a lot of technologies that are essential to employment but that are not used to “perform job duties.” For instance, payroll systems or requesting leave isn’t attached to a “job duty” even though they are important to employment.
These potential loopholes should have been closed in the current draft of the rule. The way the rule is written, it just makes it took easy to exclude a lot of important IT from coverage.
Unconventional Electronic Documents
The new ADA Title II web accessibility regulation excluded “preexisting conventional electronic documents”from coverage if they were not currently used by the state or local government for access to programs, services, or activities. DOJ then defined “conventional electronic documents” as, “web content or content in mobile apps that is in the following electronic file formats: portable document formats (“PDF”), word processor file formats, presentation file formats, and spreadsheet file formats.” I think that’s what most people would think “conventional” means. It also makes sense logically because the techniques for making these formats accessible is well-understood and supported by existing technology.
OIT expanded this definition to include, “computer-aided design files (CWG, DXF), geospatial files (KML/KMZ, SHP), and databases (MDB, SQL).” My biggest criticism of this approach is that there is absolutely nothing that is “conventional” about these file formats. Pardon me for being an attorney, but I still want to believe that words have meaning.
On a more practical level, I wouldn’t know where to start when it comes to making some of these formats accessible. Take SQL databases for instance. Often these are not intended to be accessed through a conventional user interface because they are interrelated tables of data that are queried at the command line. Other files, like GIS or CADD files may be inherently graphical and it may never be possible to make them fully “accessible” (in the sense that the full meaning and purpose of their data can be conveyed via text).
At the end of the day, OIT’s expanded definition may not be important at all, however. The exceptions are the only place where “conventional electronic documents” come up. This means that, by expanding the definition to include these other categories of documents, they are expanding the scope of documents that do not have to be made accessible.
Technical Standards
OIT’s stated choice of accessibility standards is a mess.
First, it sets the bar for digital content at WCAG 2.1 A/AA. This is fine for web pages but not so fine for other content, like electronic documents. For instance, the Section 508 standards excluded four WCAG success criteria that have no equivalents in documents. An even better and well-considered standard is EN 301 549, chapter 10.
Second, for ICT with closed functionality, OIT’s rule requires that they “must interoperate with assistive technology.” Yet OIT’s definition of such products states that such products, “prevent a user from attaching or installing assistive technology.” Exactly how is a product suppose to interoperate with something it can’t connect to?
Third, for hardware, OIT referred to the Access Board’s Section 508 standards and requires compliance with Chapter 4 (hardware). They should have left it there. Instead, they added the clause, “including Standards 402, 404, 407, 408, 409, 410, and 411.” Does this mean that we are supposed to ignore everything else?
Do What They Meant, Not What They Said
As an accessibility consultant, I think it’s clear what OIT meant to say on all of the nitpicky points I mentioned above.
- All Digital Systems Used for Accessing Public Services are Covered. When a government sets up a web-based application, it shouldn’t wait until it becomes the primary means of accessing that application before it considers its accessibility. The volume of public access doesn’t matter.
- Important Internal Systems are Covered. Of course, big internal systems that all employees use (such as leave, payroll, and basic benefits systems) need to be made accessible even if they are directly tied to the specific function that a public entity hired an employee for. Any public entity that didn’t do a “best meets” analysis when contracting with one of these systems is not meeting its employees’ needs.
- Unconventional Documents are Exempted. There isn’t any need to expand the definition of “conventional” electronic documents to include “non-conventional” formats. As a practical matter, these unconventional document formats didn’t have any accessibility requirements because technology isn’t there yet.
- Technical Standards for Documents Follows 508 (and EN 301 549). This is the most practical way to apply WCAG to documents—it’s just that OIT didn’t directly say that.
- IT with Closed Functionality Follows Section 508. Why? Well, because there really are no other standards to follow (except for the EN, which varies from it only slightly).
- Hardware Follows Chapter 4 of the Section 508 Requirements. Just focus on all of Chapter 4 of the Section 508 requirements, not just the highlighted ones.
Disclaimer
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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Well done! Thanks for your review.