opendatastudy

Research on Open Data and Transparency


Leave a comment

The power to just say no: Corbyn, Freedom of Information and the Ministerial Veto

 

Vetoes are there in the hope they will not be needed, but their mere existence reassures. In no case is this truer than section 53 of the UK FOI Act,  which allows the government the ultimate power to block requests. Amongst a number of radical proposals in his recent speech on the media, Jeremy Corbyn suggested that he would ‘look at ending the ministerial veto to prevent the Information Commissioner being overruled’, thereby abolishing the government’s FOI veto.

Some sort of veto, or ultimate backstop, is common across many FOI regimes. The US stands as an exception due to the separation of powers (though this didn’t stop President Johnson trying to insert a thoroughly unconstitutional one into the original bill). In some senses, the veto is symbolic for supporters and critics alike, offering a final reassurance or a last line of ultimate secrecy, depending on your point of view.  The idea to abolish it has been around for some time, and the Liberal Democrats promised to do so in their 2017 election manifesto.

In the UK, whether the Freedom of Information Act 2000 (FOIA) had a veto in it or not was a key sticking point, and an indicator of the shifting radicalism of the policy as it made its turbulent way onto the statute book. The terrifying lack of a veto in the original White Paper sent a shiver through Whitehall (a veto would, it argued, ‘erode public confidence in the Act’). The later draft bill, which emerged after much retreating and agony, had a veto so wide it could be used not only by government ministers but also potentially local councillors. In this form, it was a veto that could be seen, as it were, from Huddersfield. Removed from the White Paper and re-inserted into the draft Bill, the final FOIA gave government a veto to prevent the release of information, even if the appeal system ruled in favour, in situations where the public interest had been weighed and ‘exceptional circumstances’ existed. So far so clear. But there are some complexities that only, perhaps, Corbyn’s proposal would resolve.

Complexity number one is that the veto is rarely used. Jack Straw, who was Home Secretary at the time the FOIA was passed, later claimed that the veto was a deal breaker for himself and Blair – the final line of defence for an increasingly anxious and unhappy Cabinet.  Looking across the last decade or more, the UK veto has been rarely used, especially when compared with other FOI regimes. In the first few years, in fact, it looked it wasn’t used at all.

Comparative veto use in the first four years of FOI systems

Jurisdiction Veto use in first four years
Australia 48
New Zealand 14
Ireland 2
UK 0

It did however eventually get deployed, ironically by Jack Straw himself, in 2009. According to this House of Commons briefing, it was used in total on seven occasions over the next five years, at various levels of the FOI appeal system, in relation to the following topics:

  • Legal advice on hostilities in Iraq (2009)
  • Devolution Cabinet minutes (2009)
  • Devolution Cabinet minutes (2012)
  • NHS risk registers (2012)
  • Hostilities against Iraq (2003)
  • Correspondence from Prince Charles to government ministers (2012): this veto was declared unlawful by the Supreme Court (see below)
  • Documents related to HS2 (2014)

Corbyn, unsurprisingly, emphasized the two vetoes related to the war in Iraq as the reason for his new policy.

But why so few? This may be as a result of the successful functioning of exemptions elsewhere lower down the system. However, it may also be political. Jack Straw argued before the Justice Committee in 2012 that there would be a natural brake through a ‘political reluctance’ to use what is the ‘ultimate’ power. The veto has a clear ‘backlash potential’ as it naturally draws attention to the particular topic, generating headlines and making the government appear secretive’. Straw was accused of a ‘cover-up’ over the devolution veto and Andrew Lansley, one better, was conducting a ‘cover up of epic proportions’ over the NHS risk register.

Complexity number two is that, more than a decade after FOI came into force, no one is really clear how the veto works. The mystery produced a mini-constitutional crisis in 2015–2016, a great illustration of the unintended consequences of transparency reforms (Blair also probably didn’t expect his FOI legislation would lead to the mass resignation of a parish council who claimed FOI answering costs would mean no Christmas decorations either).

A request by Guardian journalist Rob Evans to see pre-2010 correspondence between the Prince of Wales and government departments (the so-called ‘Black Spider memos’) was vetoed following a case at the Upper Tribunal. It left the status in limbo (for a detailed legal explanation, see this article by Mark Elliott).

The requester’s appeal was eventually upheld by the Supreme Court after a six-year court battle in the case of R (Evans) v Attorney General. The complex case hinged upon the ‘constitutional dubiousness of the override power’, whether a court could ‘strike down a government decision under power granted by Parliament’ and whether a government could ‘overturn an independent judicial tribunal’ rather than the ICO. In a ‘radical’ majority verdict, the Supreme Court upheld the decision of the Court of Appeal. By a 3-2 majority, it ruled that the use of the veto cut across two constitutional principles and fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa.

The executive could have such a power only with clear legislation, and ‘section 53 is a very long way from being clear’. As well as kick-starting a detailed and controversial review of the law, the ruling became, according to Mark Elliot, one of the ‘landmark public-law cases of the early twenty-first century’, raising ‘fundamental’ questions around the rule of law, sovereignty of parliament and the separation of powers and illuminating the ‘complex constitutional environment FOI inhabits’. Interestingly, the actual memos (read them here) showed Prince Charles doing all sorts of reasonable things like lobbying over the quality of equipment in Iraq.

The Independent FOI Commission created in the wake of the Black Spider ruling (also known as the Burns Commission), created by David Cameron to cut back on the pesky FOI, actually ended up supporting it. The commission also argued that the veto needed to be rewritten for clarity and used more narrowly only after Information Commissioner decisions. It also added a note of caution:

In making this recommendation we recognise that by forcing the government to exercise the veto earlier or not at all, the veto may be used more frequently than previously. However, we would hope that the veto is held in reserve for the most serious cases, and that it continues to be exercised relatively rarely.

The government ducked any legal change and just promised a dollop of self-denying ordinance:

The government agrees with the Commission’s analysis that parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.

So what if, as Corbyn wishes, the veto is abolished? Evidence from other Westminster systems seems to show it won’t affect much. New Zealand effectively removed its veto power in 1987 and Australia similarly abolished their equivalent in 2009. Former NZ Prime Minister Geoffrey Palmer felt the veto change in New Zealand had no effect at all. Not having a veto might make things awkward and difficult, but isn’t making things awkward and difficult what FOI is supposed to do for politicians anyway?

I’d point to some quotidian problems that are more worrying than any veto. Looking across the last few years, the IFG’s Whitehall Monitor shows a clear slowdown in responses at central government level: ‘Since 2010, departments have become less open in response to FOI requests’: while 39% of requests were ‘fully or partially withheld’ in 2010 a full 52% were ‘fully or partially withheld’ in 2017.

Moreover, there are signs of growing resistance and avoidance at the top with politicians fighting, hiding and avoiding FOI. In June 2018, following complaints by Scottish journalists, a report by the Scottish Information Commissioner concluded that the Scottish government had sought to create a ‘two-tier’ system delaying journalists or politically sensitive requests. At the same time, Northern Ireland’s most senior civil servant, David Sterling, informed the RHI inquiry that records had not been kept of certain sensitive political meetings. The BBC quoted him as saying that ‘Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded’, and the ‘DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings’. He said this was done on the basis that it was sometimes safer not to have a record which might be released under Freedom of Information rules.

Corbyn spoke of how his party ‘should be more ambitious’ in terms of FOI. For any government, abolishing the veto would send a clear signal of its commitment to transparency. However, the debate over the veto is a smokescreen which can distract from some of the seemingly lesser issues of delay and interference that are potentially more deadly.

Advertisements


Leave a comment

Does FOI Work? An Experiment in the Netherlands

Council-Office-Sign-600

Here’s a brand new replication of our past FOI experiment on English parish councils-re-done in the Netherlands. As with our earlier experiment, a series of requests were sent to 390 local bodies, half FOI and half informal ‘asks’. In the Dutch case, the use of FOI appeared to have an even stronger effect than in the English case. Here’s the full abstract:

Transparency and responsiveness are core values of democratic governments, yet do Freedom of Information Laws – one of the legal basis for such values – actually help to increase these values? This paper reports a replication of a field experiment testing for the responsiveness of public authorities by Worthy et al (2016) in the United Kingdom. We sent 390 information requests to Dutch local government bodies, half of which were framed as official FOIA requests, the other half as informal requests for information. We were able to reproduce the original findings, that is, we found a positive effect of FOIA requests on responsiveness. The overall response rate of local governments was much higher (76%) and the size of the effect was larger than in the original experiment. Furthermore, the strongest effect of FOI was found on proactive disclosure (concordance), something that governments – strictly speaking – are not obliged to do according to the Dutch FOIA. Implications for future replication studies are discussed.

The pdf of the paper is here FOI Experiment Netherlands. You can download the full paper for free and see the paper details here http://www.journal-bpa.org/index.php/jbpa/article/view/34

Our earlier experiment with English parish councils is described on this LSE blog here and the paper is available on ssrn: Worthy, Ben and John, Peter and Vannoni, Matia, Transparency at the Parish Pump: A Field Experiment to Measure the Effectiveness of Freedom of Information Requests (December 4, 2015)  https://ssrn.com/abstract=2699198


Leave a comment

From opacity to transparency? Evaluating access to information in Brazil five years later

brazil720

From opacity to transparency? Evaluating access to information in Brazil five years later

Gregory Michener¹
Evelyn Contreras¹
Irene Niskier¹
[¹ Fundação Getulio Vargas / Escola Brasileira de Administração Pública e de Empresas, Rio de Janeiro / RJ — Brazil]

How well is Brazil’s access to information (ATI) law working five years after passage? And what can be done to improve it? Drawing on official data as well as nine evaluations of compliance with ATI obligations, interviews with policymakers, and archival research, this paper provides descriptive and inferential statistics on compliance with ATI
requests and indicators of implementation. Results show that less than one in every two requests in Brazil obtains a response from agencies, and more than 50% of requests exceed the time limits established in the law. Evidence of weak commitments to ATI are also illustrated by the paucity of several key indicators of compliance, including
statistics on requests, declared commitments to ATI, ATI-specific platforms for making requests, and designated oversight institutions. Brazil urgently needs to invest in greater information management, empowering oversight institutions to implement and adjudicate ATI obligations.

Download  http://bibliotecadigital.fgv.br/ojs/index.php/rap/article/view/75716/pdf_206 


Leave a comment

‘Three Harmless Words’: New Labour and Freedom of Information

Digital: GWB: NATO work session

Download my new paper on the development of FOI in the UK here

Abstract

Tony Blair’s views, expressed a decade and a half apart, reflect some of the paradoxes and contradictions that accompany Freedom of Information laws:

‘Freedom of Information Act is not just important in itself. It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people and delivering not just more open government but more effective, more efficient, government for the future’ (Blair 1996).

‘Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders…The information is neither sought because the journalist is curious to know, nor given to bestow knowledge on ‘the people’. It’s used as a weapon’ (Blair 2011, 516-517).

New Labour’s experience is typical of how such reforms develop. Openness laws are frequently powerfully championed, often by new governments, and then ruefully regretted. As resistance increases and doubts within government grow, they often emerge from conflict as messy compromises (see Worthy 2017).

117px-Euxropa_Konstitucio_Parto_IV_subskriboj_(Britio)

Worthy, Ben, ‘Three Harmless Words’: New Labour and Freedom of Information (July 24, 2018). Available at SSRN: https://ssrn.com/abstract=3219181


Leave a comment

Open Government in Australia and the UK

OGP-Australia-logo-200p

Birkbeck hosted a discussion comparing the openness of Australia and the UK, looking at the Australian government’s OGP commitments. The Open Government partnership is an international ‘multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance’. Governments who take part sign up to a set of commitments within a certain time frame and are then publicly assessed on how they implement them.  More than 70 countries have been signed up, as well as 15 sub-national governments.

Daniel is the assessor of the Australian government’s openness commitments, and interviewed NGOs and officials to write a report on how far the commitments have been implemented. Australia has a longer history of openness than the UK, having passed an FOI law long ago in 1982. This is not to say all is well and, as Daniel pointed out, secrecy has surrounded many of Australia’s activities not least its Trump-esque refugee ‘turnback’ policy and horrific stories from its offshore detention centres.

Australia was invited to join the OGP in 2011 but took a long circuitous journey to get there, as Daniel explains. It is currently on its first National Action Plan, with its Second National Action Plan 2018-20  due by the end of August, 2018 (the UK has just finished its Third and will soon be on its Fourth). Daniel’s first report was published for public comment in April.

As Daniel explained, there were many similarities with the UK’s own policies. Australia’s plan covers similar themes to the UK, highlighting integrity and private sector openness. Like Britain, it is pushing a Beneficial Ownership register opening up who has control of businesses, as well as extractives openness (a very big issue in resource-rich Australia) while also opening up data and ‘re-booting’ existing provision around FOI or elections. You can see how it overlaps with what the UK has been doing here.

Not everything has been smooth and there has been some resistance and foot dragging along the way. One key issue, as seen in other countries, is around the extent to which civil society, who must co-create the plan, is involved. A survey of members of Australia’s civil society network in early 2018 found that there were ‘hopes and disappointment’ with members expressing their ‘disappointment with the limited progress made on some commitments and the failure of most lead agencies to engage with civil society in a way that reflects the true spirit of partnership’. As happened with the UK earlier on, commitments have been driven from the centre with less input from either civil society or other levels of government (state or local), where interesting openness experiments often take place.

Some of the patterns in Australia are not new. There are cycles of enthusiasm and interest and governments go on and ‘off’ openness (more often off). There are also different levels of engagement between departments and often a slow down once commitments are made. This is also where CSOs come in as a force for pressure, and to build relationships.

As with openness more generally, leadership is key. Senior politicians need to be involved and enthusiastic to provide momentum. So far, there has silence from large parts of the Australian government.

You can hear the podcast here https://backdoorbroadcasting.net/archive/audio/2018_07_12/2018_07_12_Daniel_Stewart_talk.mp3

You can see Daniel’s report here and a summary here.

Daniel is a senior lecturer at the ANU College of Law. Daniel is the independent Research Monitor for Australia as part of the international Open Government Partnership, reporting on developments relating to access to information in Australian Commonwealth, State and Territory Governments.

 

 

 


Leave a comment

The UK’s Third NAP Mid-Term Report: Events, Evolution and (Un)evenness

index

Last week my mid-term IRM report on the UK’s Third National Action Plan was published, covering the UK’s progress up until the end of last year. So what does it tell us about where we are? I’d sum it up as events, evolution and unevenness.

Events

Looking back across the plan, which began long ago in May 2016, it’s hard to imagine how different things look in the UK now and quite how much else has happened. Just to give you a flavour, since the NAP began the UK has had two prime ministers, two governments, four ministers in charge of openness, a referendum on membership of the EU in June 2016, a General Election in June 2017 and, most recently, a move of openness policy from the Cabinet Office to the Department of Culture, Media and Sport. Throughout this time, the UK has also been negotiating the terms by which it leaves the European Union in March 2019. So to say officials and civil society have had other things to think about is an understatement. It’s important to praise everyone involved for managing to keep some focus and energy on the process.

Evolution

As I put it in the report ‘commitments in the United Kingdom’s (UK) third action plan have lowered ambition in relation to previous OGP cycles’. In terms of what was in the plan, some parts of it were very much an evolution from the second NAP. Some policies stemmed directly from the eye-catching ideas of 2013-2015, such as extending Beneficial Ownership to foreign companies, the creation of a government-wide anti-corruption strategy and the extension and pushing forward of extractives openness (that is moving forward to cover traded commodities). Others were also about improving facilities (like Gov.uk), building support and training and boosting existing access to information (by updating the UK’s FOI law). Not everything, of course, was a follow on. One particularly interesting commitment was to create a common data standard for local election results, so we could get a better picture more quickly of election results.

Another very important evolution was the involvement of the devolved bodies in contributing their own sets of policies (see the table below). The Welsh government contributed 9 commitments, covering open data, ethical supply chain openness to its own future well-being law. The Northern Irish Executive pushed 4 commitments around topics such as open contracting and open policy-making. The Scottish government, which has its own pioneer commitments, also pushed for joint UK wide action with a meeting of all four governments that took place in April 2018.

(Un)evenness

Given the variety of commitments and the pressure of events, progress has been rather uneven. Most of the commitments are somewhere between ‘limited’ and ‘substantial’, though some have already been completed (and some run outside of the two-year timetable).

What Next?

It wasn’t only Brexit causing the delay. While officials, and the Cabinet Office in particular, were seen as committed, politicians were not. There was a general sense that the OGP process was derailed with ‘no strong commitment to values’ and support for the ‘letter not spirit’ of openness from senior politicians. In the last year there’s also been controversy about government openness across the UK, Scotland and Northern Ireland. My final report will show how far the commitments have come by the end of the process.

The Open Government Network has just published its manifesto for what it would like to see in the 4thNAP. Here’s a few recommendations from my report that might feed in:

  • A Parliamentary committee (and devolved equivalents) to oversee transparency policies.
  • A high profile intervention or an event in support of the OGP process by a senior politician (a speech, a policy or conference) – with the Scottish meeting in April becoming, perhaps, a regular occurrence.
  • focus on more information and data on the impact of Brexit on everyday life
  • Continue to experiment with new ways of engaging CSOs
  • Choice of a selection of high profile cross-cutting ‘signature’ reforms for the next NAP that are cross-cutting and high-profile (of a kind seen in the third action plan such as Beneficial Ownership) perhaps focusing at local government level.

Ben Worthy is the UK IRM and an academic at Birkbeck College, University of London. You can read the full IRM report here. You can also come along to hear Ben in conversation with his Australian equivalent in London on the 12th July.


Leave a comment

The Scottish Information Commissioner’s Intervention: skulduggery in Scotland?

Today the Scottish Information Commissioner published his report into claims that the Scottish government had been making certain FOI requesters (namely journalists and political researchers) subject to different procedures. This followed claims from Scottish journalists in 2017 of interference in their FOI requests. Here’s a few conclusions from the report…

Were journalists dealt with differently?

The SIC concludes they were.

‘While I received reassurances throughout my interviews that journalists’ requests were dealt with in the same way as requests from any other person, this is clearly not the case.

Journalists, together with MSPs and political researchers, are expressly made subject to a different process for clearance than other requester groups. As set out above, their requests are almost invariably subjected to an additional layer of clearance which is likely to delay the consideration of the case. This process is applied because of who/what they are, not what they asked for. This is far from the applicant-blind principle of freedom of information legislation’.p.24

‘It may very well be the case that many requests for information from journalists, MSPs and political researchers are for sensitive information, in which case it may be entirely justified that clearance is required at a higher level in the organisation. However, by creating and applying a process based on requester type rather than the nature of the request, not only is the spirit of FOI legislation offended, but trust between those groups mentioned in the policy and the Scottish Government may also be damaged. I have heard criticisms of a two-tier system, and the existing policy simply reinforces such concerns’. P.24

Did it affect disclosure?

There’s no evidence that the ‘two-tier’ approach changed disclosure.

‘Except for 2015/16, the statistics do not show journalists to be treated in a materially different way from other requester types, insofar as the likelihood of obtaining full or partial disclosure is concerned. However, given the level of involvement that special advisers have in the handling of many information requests, there is obviously a perception that their involvement is disadvantageous to such requests’.p.27

…But  it did delay journalistic FOIs, above the average amount of time taken…

‘Despite these significant improvements, there is still a noticeable difference in time taken to deal with media, as opposed to non-media, requests. While some of this may be due to the complexity of some of those requests, it is inevitable that higher levels of clearance will add time to any response process’. P.30

Was any there wrongdoing (Part 1 identity)?

The SIC concludes it contravened the ‘spirit’ of FOI

‘In my view, the practice of referring all media requests for clearance is contrary to the spirit of FOI legislation. In most cases, the identity of a requester should be irrelevant for the purposes of FOISA and an authority should handle requests on the basis that they are applicant, and purpose, blind’ P.30.

Was there wrongdoing (Part 2 use of exemptions)?

It seems not-though exemptions were ‘pushed’ to their limit or tried out.

‘I could find no evidence of improper motives in the application of exemptions… There was an indication in some cases of reliance on exemptions where, although there may have been a legally stateable basis for doing so, the prospects of success, were the case to be reviewed or appealed, were not high’…though he notes one ‘flimsy’ attempt. P.31

Was there wrongdoing (Part 3 records and a chilling)?

One recurrent theme of the report was that there was a lack of documents to either support or refute claims (and the IC recommends there be new rules on record keeping).

‘The clarity of the situation is not helped by the general lack of records of interactions between special advisers and case-handlers in the case files… The lack of a clear record of what was discussed only feeds speculation which a clear record could dispel.’ P.23

‘Looking at the advice provided to Ministers, as previously mentioned, records management in case files is sporadic and in many cases the rationale for the decision is not clear from the documents.’ P.32

‘The examination of Scottish Government case files revealed significant gaps in the information recorded. In many cases, there was scant information contained in case files; in some there was no documentation whatsoever…Consequently, in many cases examined by my officers it was impossible to ascertain what processes had been followed, what (if any) discussions had taken place, whether advice had been sought and/or received and who had been involved in shaping responses’.p.34