opendatastudy

Research on Open Data and Transparency


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New Paper: Brexit and Open Government in the UK: 11 Months of May

Westminster Terrorist Attack Statement

This paper examines how Brexit has influenced the UK’s transparency regime and how, in turn, will openness shape the UK’s Brexit process. There are three ways of looking at Brexit and open government: through possible changes to old policies and the pushing of new ones, through the new Prime Minister championing transparency or supporting secrecy, and the openness of the Brexit process itself, which so far has seen a struggle between the executive’s secretive prerogative powers and the legislature’s rights to know.

May’s government will also be seen as one that prized secrecy but conceded openness, an object (and abject) lesson in how hard it is to keep government closed in the 21st century. The May administration 2016-2017 is likely to be remembered as a secretive one, headed by a Prime Minister that wished to govern through confidentiality and closed networks. Though there were some high profile openness policies they were inherited and proceeded slowly, if at all.

Brexit reveals how badly the approach misfired. The government’s plan of no ‘running commentary’  and secrecy was undermined by the Supreme Court, the UK Parliament and the EU Commission, who all forced greater transparency and greatly limited May’s room for manoeuvre and concealment. The three institutions, creating and using ‘institution friction’ to open up government, also exposed the government’s lack of preparation and undermined the UK’s credibility and leverage even before Brexit began.

Read the paper here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2988952


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Donald Trump’s Secrecy Problem

Most US presidents that want to shake things up want to open them up too. From Woodrow Wilson to Barack Obama, those wanting to change the system have championed greater openness, whether by promoting openness in international affairs or rebooting FOI and Open Data. ‘Sunlight’, they would almost always say, ‘is the best disinfectant’. Even LBJ, albeit reluctantly, became the father of the first US FOI law when he sulkily signed the 1966 bill.

This is not to say that they stay open and ‘sunny’. Most radicals go off being open. Some do it quickly, some do it slowly, but go off they almost always do. Woodrow Wilson, for all his promises, introduced the 1917 Espionage Act and hid his severe illness in 1919 from the public for two years (and his wife governed, giving the US a secret female president between 1919-1921). For all his promises, Obama also clamped down hard on leakers. As Sissela Bok put it:

‘How many leaders have come into office determined to work for more open government, only to end by fretting over leaks, seeking new ways to classify documents and questioning the loyalty of outspoken subordinates?’ (Bok 1986, 177).

Donald Trump seems to have skipped the ‘open government’ phase entirely and gone straight to the fretting. Greater transparency is not part of his big 100 day plans. Trump isn’t even transparent about the smaller things presidents are generally open about. In the US candidates and office holders regularly publish their tax returns as a matter of course. Details of Obama’s falling income were on the White House website and you can see Reagan’s, Nixon’s, Truman’s and some of FDR’s on the great Tax History project site. Hillary Clinton’s returns are here and Bernie Sanders’ (possibly incomplete) ones here. Presidents also release medical records. Except, of course, Donald Trump, who released a rather brief statement that his doctor later confessed to have written ‘in a few minutes’.

All these little Trumpian secrets seem rather tame in comparison with ‘Russiagate’ that we see unfolding before our eyes (see this great piece for a detailed analysis and these 7 charts). This week the Senate hearings on Russian interference in the US election began in earnest while Mike Flynn, Trump’s former National Security Advisor, looks to go public. Though it isn’t clear what sort of scandal it is or where it may go, it is clear that all this secrecy is damaging the White House. Secrets almost always do three things: create suspicion, leaks and pressure to be open.

Problem one is that secrets makes people suspicious. Trump’s non-release of tax returns, for example, appears odder and odder – even Wikileaks is interested in it. As John Dean said, putting pressure on the FBI is not the behaviour of innocent people. And he should know: he was White House counsel for Richard Nixon 1970 until 1973.

This suspicion was encapsulated in Jeff Sessions’ cover up and non-answers to Congress. If, as defenders asserted after, it was normal to meet the Russian ambassador, why not say it? Why hide it? As Chris Hayes put it ‘there’s this pattern…in which there’s this kind of bizarre disassembling about the basic facts of the matter…do you understand why that reads to people as fishy?’ As the Onion put it, ‘Heartbroken Russian Ambassador Thought Special Meetings with Jeff Sessions Were Very Memorable’.

Problem two is that strident denial and clamping down kickstarts all sorts of informal openness. ‘The ship of state’, as the saying goes, ‘is the only known vessel that leaks from the top’. And Trump’s White House is extraordinarily and spectacularly leaky, as a result of factions, frustration and fear (not because of Trump’s phone). Even the administration’s attempts to clamp down on leaks leak.

Problem three is that secrecy attracts attention and motivates others to force you to be open. Trump’s supposed smokescreens and distractions via Twitter are spectacularly counterproductive. There are currently no less than three Congressional investigations ongoing (Senate intelligence, House intelligence and House oversight) all of whom will search, call witnesses and dig. Even Republicans in Congress, who have accepted his racism, sexism and mocking of the disabled, are beginning to want to know more. There’s also a joint intelligence services probe, run by many of the organisations Trump has outright insulted. On 20 March, the heads of the FBI and CIA, in Congressional hearings, contested Trumps’ wiretapping claims: as one observer put it ‘two months after taking office, Trump has implicitly been branded a fantasist by the heads of America’s largest law enforcement agency and its largest intelligence agency’. These investigations

…guarantee that the Russia cloud will hang over the Trump administration at least until the various investigations are over [this] could take months and possibly years to wrap up. All the while, speculation is likely to be fuelled by more leaks, and more embarrassing testimonies.

The media are pursuing Russia and, in a further echo of Watergate, are keeping the topic on the front pages. Meanwhile a whole host of FOI requests ask about Trump’s conflicts of interest with more than 3000 followers of this Trump FOI Slack channel and at least 184 requests on the requesting site muck rock (perhaps someone should invent a bot like this one).

As I wrote in relation to Theresa May, some politicians are born to be open, some achieve openness by accident and some have openness thrust upon them. The combination of suspicion, leaking and pressure is shining a light on the new president. Russia is now coming to dominate everything Trump does and undermine everything else. Soon there will be an attempt to answer the most dangerous question in politics – why? There may never be a smoking gun, but the glimpses and hints at a truth, and the drip of revelations, are likely to be deep, dangerous and damaging. Even in the very unlikely event there is no gun, just smoke, remember it’s the smoke that normally kills. Trump will regret he wasn’t more open from the start.

Ben Worthy is a Lecturer in Politics at Birkbeck College. His new book The Politics of Freedom of Information: How and why governments pass laws that threaten their power is published by Manchester University Press. You can read chapter 1 here.


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New Paper: Brexit and Open Government in the UK

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Abstract:

How will Brexit influence the UK’s transparency regime and how, in turn, will openness shape the UK’s Brexit process? There are three ways of looking at Brexit and open government: through possible changes to old policies and the pushing of new ones, through the new Prime Minister championing transparency or supporting secrecy, and the openness of the Brexit process itself, which so far has seen a struggle between the executive’s secretive prerogative powers and the legislature’s rights to know.

 

Download the paper here

 


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Some collected new (ish) work on FOI and Open Data

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Some collected new (ish) work on FOI and Open Data. All are free to access on the links…

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). Available at SSRN: https://ssrn.com/abstract=2699198 (see also FOI man’s excellent summary here and this longer assessment 201607-parishcouncils)

Worthy, Ben, Freedom of Information and the Media (September 12, 2016). Available at SSRN: https://ssrn.com/abstract=2837762

Worthy, Ben and Hazell, Robert, Disruptive, Dynamic and Democratic? Ten Years of Freedom of Information in the UK (December 28, 2015). Parliamentary Affairs, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2708768

Worthy, Ben, The Impact of Open Data in the UK: Complex, Unpredictable and Political (March 5, 2015). Public Administration 93 (3): 788-805, 2015. Available at SSRN: https://ssrn.com/abstract=2806876


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New Paper: The Impact of Open Data in the UK: Complex, Unpredictable and Political


revenue expenditure01Image http://www.londoncouncils.gov.uk/our-key-themes/local-government-finance/local-government-funding-and-expenditure/revenue-funding-and

Abstract:

This article examines the democratic impact of the UK Coalition Government’s Transparency Agenda, focusing on the publication of local government spending data as the first steps in an evolving ‘ecology’ of Open Data transparency. It looks at whether the Open Data has driven accountability, participation and information transmission. Rather than forging new ‘performance regimes’ or bringing mass use and involvement, the publication of spending data adds a further element of political ‘turbulence’ that can ‘punctuate’ the ‘equilibrium’ of local politics (Hale et al 2013). The evidence finds that the spending data, so far, has driven some accountability but less participation or information transmission. Taken together, assessment of the three objectives reveals that the use and impact Open Data is far more complex, more unpredictable and more political than the rhetoric around Open Data indicates. The danger is that the gap between aims and impact invites disappointment from supporters.

Worthy, Ben, The Impact of Open Data in the UK: Complex, Unpredictable and Political (March 5, 2015). Public Administration 93 (3): 788-805, 2015.

Paper Available here : http://ssrn.com/abstract=2806876


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Brexit and Open Government in the UK

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Brexit, as we now know, means Brexit. But what does it mean for open government in the UK? On the surface, nothing changes. Almost all the legislation, from Freedom of Information to Data Protection, is bound up in UK law. The Open Data agenda will also continue to move along. Even the EU initiated laws lie Public Sector Re-use will be kept or, if anything is reversed, will somehow be preserved. There are three areas, however, where the tone or direction of open government may change: through new policies, the influence of the new Prime Minister and the Brexit process itself.

New Policies?

Looking across the UK’s 3rd OGP National Action Plan the top three commitments around Beneficial Ownership, extractives transparency and anti-corruption are all very much David Cameron’s personal agenda. Some of them are also very much in process, as the first Beneficial Ownership release last week shows (see this great analysis here of the first batch of data).

Theresa May’s speech in Birmingham has already indicated that she wants to continue in this general direction, with a commitment to ‘more transparency, including the full disclosure of bonus targets and the publication of “pay multiple” data’ and support for Cameron’s anti-tax avoidance drive.  The wider open data agenda is still ongoing. The FOI Act is also relatively safe (for the time being). Since it came into force in 2005 there has been an attempt to amend the law every 18 months or so. However, the FOI Commission’s clear endorsement of the Act and the sheer scale of the resistance to change has probably called a halt to any attempt to limit it in the near future-indeed the 3rd NAP proposed greater publication of data and some minor improvements.

Some new policies are very likely. New governments often promote openness to set a tone. This may be especially important for Prime Minister without a mandate facing the complications of Brexit. Openness represents an easy win to a new leader and is, perhaps, something that could help offset concerns over May’s rather, shall we say, less open actions as Home Secretary. Self-consciously ‘reforming’ administrations in the UK in 1997 and then in 2010, the US in 2009 and Italy in 2013 all made transparency a priority. It ‘signals’ a whole set of messages: that a government is prepared to be open and ‘democratic’ and is prepared to be monitored or overseen by the public.

New Prime Minister?

Political leaders set the tone and send out signals about the openness of their governments. Here’s my quick summary of how the U’Ks last three Prime Ministers did and to what extent they tried to pushback (i.e. limit) or extend openness.

UK Prime Ministers and Openness 2005-2016

Prime Minister Pushback Extension
Tony Blair Fees mooted (2006), (tacitly) supported attempt to have Parliament excluded (2007) Passed FOI Act in 2000
Gordon Brown Cabinet exclusion mooted, Excluded Monarchy from FOI (2010) Extension of 30 year rule (2009) and slight extension of FOI to new areas
David Cameron FOI commission (2015-2016) OGP especially Open Data agenda (2010 onwards) and Beneficial Ownership transparency (2013)

[N.B. this table doesn’t include a series of extensions of the FOI (Scotland) Act in 2012 and 2015-16]

While Tony Blair passed FOI then regretted it, Gordon Brown and David Cameron made strong speeches in favour of openness and pushed various transparency reforms. Cameron was especially committed to make his government the most open in the world, though in 2015 he set up an FOI Commission to restrict the Act and described the law as a ‘buggeration factor’.

So how about new Prime Minister May?

On the plus side, May as Home Secretary has supported and pushed the transparency within the UK anti-corruption agenda and was a key supporter of the long running Hillsborough campaign that exposed police corruption in the late 1980s. On a personal level she was quick to publish her own tax details. She has also extended FOI to the Police Federation and opened up police disciplinary hearings (though a cynic could argue that it is always easy to be transparent about your opponents).

On the minus side, May has been in the Home Office. Historically, the Home Office sunk many plans for greater openness. Recently it seems to have come a rather high third or so in the worst performing departments for FOI. This may, in part, be due to the often difficult and sensitive nature of some of the Home Office’s work.

May herself also has a less than liberal stance on various issues that runs against the idea of more openness: critics could well discern an authoritarian streak. She hasn’t always been transparent or accountable, seeking to hide Border Force cuts from Parliament in 2016 and, more famously, deflecting blame onto officials in 2011.

By far the biggest concern is over the repeated attempts on her watch to pass Investigatory powers legislation (aka ‘the Snoopers Charter’) that has led to ‘controversy around encryption, bulk data and hacking’and the right of various security services to carry out mass surveillance on the public. Serious privacy concerns have been raised by Parliament  with the UN warning it not compliant with International law. May’s refusal, in response to an FOI request, to release her own internet search history led to a backlash  from MPs.

Brexit and Beyond?

Brexit itself will soon become a huge transparency issue. There is an interesting debate about how much ‘information’ there was flowing in the referendum campaign itself, as this great blog post discusses. However, once negotiations begin there will be unprecedented pressure and scrutiny. Prime Minister May and the other 27 countries will probably argue for some secrecy in the delicate process but there will be a powerful case for more open door negotiations and, on a practical level, more leaks than you can imagine.

Here is the crux of the tricky debate between openness and closure. This fascinating study of the European Council of Ministers found openness can be good at regulating behaviour in negotiations but can encourage posturing or unnecessary ‘signalling’ to domestic audiences. Keeping discussions confidential will need to be balanced by a very difficult environment where the Leavers fear being ‘sold out’, Remainers hope for a messy compromise and the press and public demand to know what’s being done.

Looking further into the future, the impact of Brexit could get more complicated. Devolved bodies have already begun to innovate with their own openness policies, as the last NAP recognised. A set of devolved ‘plus’ institutions could easily make some very interesting regional variation in openness across the UK (if, of course, they all stay in the UK).

 


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Offshore Tax Havens and Beneficial Ownership: A Quick Primer

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Given the huge leak of data on offshore tax havens from Mossack Fonseca, below is brief outline of David Cameron’s attempts since 2011 to take action on tax havens by opening up company ownership via so called Beneficial Ownership. It remains to be seen whether this is, as some claim, a political gesture or something that is causing serious concern in various territories. Perhaps the upcoming London conference will tell us more. For the time being, here is a quick primer taken from my 2015 report for the OGP

Beneficial Ownership

Beneficial ownership is a legal term referring to anyone who has property rights and who exercises ultimate effective control over a legal person or arrangement, yet does not nominally own the asset itself. The creation of a publicly accessible central registry of company beneficial ownership information stemmed from a series of international commitments on money laundering at the G8. World leaders, under the UK chair, committed to increasing action on laundering, although the commitment has a series of other purposes, from helping stop tax avoidance to fighting terrorism and alleviating poverty. The ability to create a register of company ownership, detailing who owns or has a sizable interest  (labelled ”controlling” or “person with significant control,” or PSC) , is a central part of fighting corruption or tracing numerous activities. It has been influenced by new data-driven innovations, particularly the Open Corporates site. You can see more on how the private sector is being opened up in the UK here.[1]

The  UK Commitment

The commitment was linked to a number of EU-wide and G8 agreements, as well as work with individual countries across the world on corporate transparency and tax evasion. In June 2013, an important step was made when the G8 agreed to principles on beneficial ownership openness at the Lough Erne summit under David Cameron’s chairmanship.[2]

David Cameron made the commitment the centrepiece of the UK’s second NAP during a speech to the Open Government Partnership summit in London in October 2013.[3] He argued that it is important to know who owns and controls companies, not only legally but also in terms of who benefits financially from their existence.[4] Given its cross-cutting nature, the policy is divided between Her Majesty’s Treasury and the Department for Business, Innovations and Skills (BIS).

Nationally, the publicly accessible register was consulted on in 2013. It was taken forward in primary legislation as part of the Small Business, Enterprise and Employment Bill that became law in late March 2015. The intention, according to the provisional implementation plan, is to then have a publicly accessible register up and running by April 2016 following secondary legislation. A BIS-led working group was created, and a draft set regulations for PSCs drawn up in January 2015.[5]

Internationally, the commitment has involved discussion and work around implementing the EU Fourth Money Laundering Directive, as well as a series of bilateral and multi-lateral negotiations via the G20 Anti-Corruption Working Group. These negotiations led to an agreed set of international beneficial ownership principles at Brisbane in November 2014 and strategic document looking ahead to 2015-2016, which includes concrete action on ownership and other issues recommended by Financial Action Task Force.[6]

At the EU level, the Fourth Money Laundering Directive was agreed upon following a trialogue (an informal meeting between the European Parliament, the council, and the commission) in October 2014. In December 2014, the European Parliament and Council reached political agreement on it, specifying that—

The ultimate owners of companies would have to be listed in central registers in EU countries, accessible to people with a “legitimate interest,” such as investigative journalists and other concerned citizens.[7]

This is somewhat less than the UK’s own legal provisions and was a disappointment to campaigners across the EU. The directive is now heading for formal adoption; as soon as this is done, at some point in early 2015, it will be implemented in the UK. [8]

As a side note, David Cameron was keen to push the policy with Crown Dependencies and Overseas territories linked to the UK, including the Cayman Island, Bermuda, Jersey, and Guernsey. In a letter of April 2014, he urged them to consider registers of beneficial ownership although campaigners were not hopeful.[9] In February 2015, this briefly became an election issue when the then opposition leader Ed Miliband committed a future Labour government to blacklisting any overseas territories that refused to publish a register. Since winning the General Election in May 2015, David Cameron has continued to press overseas territories on the issue, though with little effect and some resistance[10] 

Did it matter? How has it gone so far?

The commitment has been substantial so far. Some legislative and policy work remains ongoing until the register and other parts are up and running between 2015 and 2016. However, given the potential obstacles, the policy has so far met its ambitious aims and is one of the central achievements of the UK NAP. A publicly accessible register of beneficial ownership, especially if combined with a (partially open) EU register, would be a powerful move forward in opening up the private sector. These are next steps and part of a long-term process, including international negotiations and continued implementation across several forums, including the G8, G13, and EU.

This commitment is complex, with different national and international commitments involving many hundreds of thousands of UK companies. The process also requires detailed co-ordination with a series of interested parties, including government departments and outside bodies such as law enforcement. This also involves discussions between groups with very different interests, particularly between businesses and CSOs.

So far, stakeholders and CSOs widely welcomed the achievements as an important step. Given the complexity, CSOs were said to have played a key role in moving the process forward. The personal involvement and commitment of the Prime Minister also helped push the policy forward and prioritize space in the legislative timetable. BIS was widely praised for its open and consultative way of working.

Stakeholders and experts have warned of the need for continued innovation and development. Areas such as real estate may present particular problems. Experts have argued that the new data need to be matched and linked to be truly effective, as Chris Taggart of Open Corporates explained:

…this register is going to be transformative in the fight against money laundering, fraud, and other criminal activity. But much of this will only be revealed when the beneficial ownership data is combined with other datasets, including government procurement, licenses, environmental citations, and other public data.[11]

Next Steps

As both the government and stakeholders have pointed out, the policy and implementation are untested, as the few registers that exist around the world are in relatively small countries. Given its newness and uniqueness in the UK, there is a strong need for robust evidence and analysis of both implementation and compliance with the register and the exact effects, use, and consequences of having a publicly accessible register. This could include post-legislative scrutiny by a parliamentary select committee or international group of academics and experts.

The register will be available in June 2016. There is a consensus amongst all involved that a review of its operation and use will be of great interest, given the lack of precedent on which to draw. The beneficial ownership register has a three-year review built into it, and such analysis should form part of any future action plan. However, given the register’s high profile, the IRM researcher would recommend analysis before then. Transparency International has highlighted the need for monitoring to ensure that data are regularly published and that any legal or administrative loopholes are closed. Attention should also be paid to new innovations to facilitate use, such as the new (prototype) site Who Controls It, which allows searching of the register and linking with other data.[12]The register requires the co-operation of countries across the world to work effectively, so there is a need for continued movement at international level.

 

[1] See the Open Corporates application at at http://bit.ly/1IssoSm and an explanation by its designer on why Benefical Ownership is important at http://bit.ly/1zh65Nf

[2] See the 2013 G8 Lough Erne communique at http://bit.ly/1Isoett; see also http://bit.ly/1EUwovh and his OGP speech at http://bit.ly/1Q3qc5V

[3] See David Cameron’s 2013 speech at the OGP Summit at http://bit.ly/1Q3qc5V

[4] See David Cameron’s 2013 speech at the OGP Summit at http://bit.ly/1Q3qc5V

[5] As of this writing, the bill is at the report stage of the House of Lords (3/3/2015) http://bit.ly/1ivHb4y

See this discussion paper from the 2013-2014 consultation at http://bit.ly/1nD5QSo, the proviosional implementation plan at http://bit.ly/187XbW1, and the register at http://bit.ly/1GJogv4

[6] See some background on the G20 at http://bit.ly/1EUwqmX

[7] See the press release on the agreement at http://bit.ly/1J1dDp2 and on the compromise at EU level at http://bit.ly/1wB61UZ

[8] See the press release on the agreement at http://bit.ly/1J1dDp2 and on the compromise at EU level at http://bit.ly/1wB61UZ

[9] The Prime Minister’s letter at http://bit.ly/1GKQbgT and further information at http://bit.ly/1Q3pCVL See the beneficial ownership scorecard from Christian Aid at http://bit.ly/1KxLmWB

[10] See the letter at http://bit.ly/1I1c8si

[11] There may also be potential side effects and difficulties in particular areas. See this blog on real estate at http://bit.ly/1EGgYZz and this article by Open Corporate designer, Chris Taggart, at http://bit.ly/1zh65Nf

[12] See the alpha site at http://bit.ly/1bGP4kK and this briefing from Transparency International at http://bit.ly/1DF4k7U