FOI and Open Data: Where Are We Now?

 

It is almost a decade since the Freedom of Information Act 2005 came into force and five years since the Coalition launched its ‘Transparency Agenda’, aimed at increasing online transparency. What has been the impact of the two reforms so far?

The Impact of FOI and Open Data

Freedom of Information 2005-2014

The key driver of any FOI regime is requests. The number of FOI requests to UK central government have gone up around 6 % per year, from 38,000 in 2005 to 53,000 in 2013. Meanwhile, local government is the recipient of the vast majority of FOIs-numbers increased more than three fold in the first five years, accounting for between 70-80% of all requests. Users, as far as we know, are a mixed group of the public (the biggest user group) alongside journalists, businesses and NGOs.

So what impact has FOI had? It has undoubtedly made public bodies more transparent about all sorts of topics, from salaries to road maintenance. According to the House of Commons Justice Select Committee, it has also ‘contributed to a culture of greater openness across public authorities … public officials not only to implement the Act but to work with the spirit of FOI to achieve greater openness’ (Justice 2012). The government agreed that the ‘Act has contributed to a culture of greater openness across public authorities’ (Justice 2012, 4).

Public bodies and figures are more accountable because of FOI. The Act often works with other mechanisms (such as the media, MPs or NGOs) as a tool to put together information for campaigns. Although high profile cases, such as MPs’ expenses, attract publicity, FOI is often used, especially at local level, as a ‘jigsaw’ tool to put together information rather than to obtain scandalous ‘smoking guns’.

Some of the more ambitious aims have not been met. This is not because the Act has failed but because the aims were far too high. FOI has not, by itself, improved the quality of decision-making, public understanding of decision-making or participation. Superficially FOI does not appear to have increased trust in government-the Justice Committee concluded FOI had ‘no generalisable impact’ on it. However, trust is a complex issue and Even the seemingly clear ‘drop’ in trust created by the MPs’ expenses scandal is not as simple as it seems: the disclosure that some MPs are corrupt came as confirmation not a revelation to many. On a positive note, despite the claims of many ex-senior politicians, the records are not disappearing: a ‘chilling effect’ can be seen in a few politically sensitive cases but is not happening systematically.

Open Data 2010-2014

 The Coalition’s Transparency Agenda is actually a series of different reforms, all using information technology to encourage openness. They include new data platforms, publication of frontline service and spending data and innovations such as online crime maps and crowd-sourced experiments.

The effects so far seem variable. High profile Open Data platforms like data.gov.uk have attracted users and innovators while the crime map, police.uk, crashed on the first day due to levels of use. Some other experiments have been less successful and the crowd-sourcing of policy had to be scaled back.

One flagship innovation in the UK has been to ask all local authorities to publish on a monthly basis their spending over £500 onlines-see my analysis here. There appears to be little use by the public yet, though some by journalists and businesses. There is no sign of the promised ‘army’ of citizen auditors using the data to hold authorities to account. Some are concerned, both in the UK and elsewhere, that publishing spending data encourages emphasis on ‘costs’ rather than impact. However, the local spending data has launched several interesting third party innovations, some of which have been created ‘upwards’ from the community and others between public bodies-see below.

Resistance?

For transparency to be successful senior politicians both within organisations and nationally need to push for it and support. One of the big concerns is that there will be hostility and resistance. The problem is that leaders quickly go off being transparent. Tony Blair, who passed the FOI Act, gave his verdict:

The truth is that the FOI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists. For political leaders, it’s like saying to someone who is hitting you over the head with a stick, ‘Hey, try this instead’, and handing them a mallet (Blair 2010, 516-517).

David Cameron also spoke of how the Act can ‘occasionally fur up the arteries of government’ (BBC 7 Mar 2012). The danger is that such negativity may encourage poor behaviour and lead to a small ‘anti-FOI’ group at the very top of government. In several local authorities there is a similar rumble of discontent at the time and resources FOI uses and the damage ‘frivolous’ requests cause.

The dislike of FOI can also translate into action. In the UK the veto has now been used seven times to prevent the release of information including for Cabinet discussions over the war in Iraq and correspondence between Prince Charles and the government. In 2006 an attempt was made by the Blair government to introduce fees for FOI, as happened in Ireland in 2005. This was closely followed by an attempt by a group of MPs to remove Parliament from the FOI Act.

Neither is Open Data fully supported. The government’s initial emphasis on the ‘democratic’ benefits of the reforms have been downplayed with a shift to the economic benefits. The Public Administration Committee claimed that some departments and Ministers are more interested than others. Across local government there has been varying degrees of enthusiasm for the Open Data and spending publication. Some local authorities have innovated, a few resisted while the majority seem to be going through the motions. Local councils are keen to be develop new tools for citizens but are concerned at the resource implications and is unclear on what the agenda is meant to do-see this LGA survey.

Where Next?

So what does the future hold? The first area is private providers. Section 5 of the Act can be used to extend the scope of the legislation and all the main parties are committed to extension to ‘private providers’ working on behalf of public authorities. FOI already allows access to some information held by private bodies relating to public work and most bodies are happy to provide it, albeit with some high profile exceptions. In 2007 Gordon Brown committed to extend the Act to all public work carried out by private bodies but eventually did not do so, concerned about potential costs to businesses. In 2010 the new Coalition government (again) committed to extend it but are yet to do so. The recent post-legislative scrutiny recommended that FOI be enforced by contracts rather than explicit extension of the Act. It could also be that we can start to find out more about what businesses do for public bodies via Open Data, as providers give more information through experiments like contracts finder.

Could there be other changes? Although most past attempts to reform the Act have failed, it is possible that future governments, sceptical of FOI, may try again whether directly, through changes to the law, or indirectly through ‘resource starvation’. The current government has expressed its concerns about what it calls ‘industrial’ users of the FOI Act. On the other hand, it is possible that parts of the Open Data agenda may turned from ‘codes’ into law. One concern of campaigners is that the government may ‘give’ Open Data with one hand and ‘take away’ information rights with the other.

Finally, are there areas where FOI and Open Data could meet? The FOI has already been amended to include datasets. Advocates and officials feelonline publication, FOI and new innovations could serve to mutually reinforce each other. This can already be seen with mySociety’s WhatDoTheyKnow that publishes FOI’s publically (and accounts for 10% of all FOIs) or Openly Local, an interactive merging of democratic and financial data. Other innovations could bring easy comparability such as Appgov(note-this site is currently in the development stages).

Conclusion

Ten years after FOI the UK has seen a huge advance in openness. The Act is working well. It is embedded within public bodies, from central government to Parish council, and is an accepted part of the political landscape. Open Data is more uneven but it is likely to take time as developers do new things with the data. The concern is that the ‘myths’ around being open obscure how it actually works. There are legitimate concerns about use but these are becoming confused with the claims of unhappy politicians-complaints from politicians may be a sign of transparency doing its job.

This piece was originally written for and published by PDP

Total Recall?

The government has returned, once again, to the idea of recalling MPs if they behave in a particularly poor way. This means that a by-election can be triggered by a petition from constituents in certain circumstances. As the BBC explains

Voters could trigger a by-election if the House of Commons resolves that an MP has engaged in “serious wrongdoing”. A by-election would be forced if more than 10% of constituents signed a petition over an eight-week period after the Commons ruled an MP could face recall.

See this excellent research note by the House of Commons library. Not everyone is convinced this is a good idea. The title of this great article by David Judge says it all ‘If I Were You I Wouldn’t Start from Here’. Neither was the Political and Constitutional Reform Committee impressed. MP Zac Goldsmith has gone one stage further, arguing for ‘full recall’, where a petition to trigger an election can be created for any reason by constituents, rather than just when the House of Commons decides there has been ‘serious wrongdoing’. I can foresee three potential problems:

Problem 1: What the government are giving isn’t what the public want

Under the current government proposals, as David Judge puts it, MPs would ‘have to have done something ‘breathtakingly wrong’ to be subject to recall under the Government’s proposals’. Interestingly, the public appears to believe there should be a number of circumstances under which recall should have an effect:

Nick Clegg has already ruled out recall elections for laziness but the public clearly feels lying, expense fiddling and, to nearly a quarter, having an affair should trigger a recall election. The danger is that if recall is introduced in the way the government wants it will be seen as a ‘sham’ (like it was last time it was proposed).

But if it passed, especially as ‘full’ recall, it might not be easy because…

Problem 2: It can get political

One reason MPs don’t like recall is that it can get political. In parts of the US, recall has become highly politicised. In Wisconsin, the combination of a controversial ‘tea-party’ supported Governor Scott Walker and a thin Republican majority led to a series of ‘recall’ elections triggered by both sides intended to shift the balance of power in the state legislature-see here. See also these two councillors facing recall over their city redevelopment plans.

Problem 3: It grows over time

In 19 US states there is recall at different levels, from state legislature down to local school boards. The evidence from the US is that recall can grow over time-this article records 150 elections in 2011 with a 50% success rate in removing officials. In 2013 the numbers have gone down slightly but of ‘107 recalls, 73 were ousted; 51 officials lost a race, and another 22 resigned’ meaning a very high ‘68% removal rate’. Spivak argues that using recall has become easier and cheaper due to information technology.

In 2013, the last time recall was proposed, the Political and Constitutional Reform Committee recommended the government ‘abandon its plans’ as

We are not convinced that the proposals will increase public confidence in politics. Indeed, we fear that the restricted form of recall proposed could even reduce confidence by creating expectations that are not fulfilled… Under the Government’s proposals, constituents themselves would not be able to initiate a recall petition.

Let’s see this time…

N.B. the title was not just a clever pun-as you may know Arnold Schwarzenegger became Governor of California via a recall ballot in 2003.