opendatastudy

Research on Open Data and Transparency


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New mySociety Report on Freedom of Information in Local Government

Here’s a very good report on the state of FOI and local government in the UK by Alex Parsons and Rebecca Rumbul at mySociety-see it here. 

 

The Executive summary and my Foreward are below.


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Donald Trump: openness, secrets and lies

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Ben Worthy and Marlen Heide 

Most politicians promise to be more open than their predecessors. But once in office, their outlook changes. They find themselves caught between the pressure to be open and the siren-call of secrecy. The conventional wisdom is that politicians rapidly fall out of love with transparency and its potential for exposure, uncertainty and unpleasant surprises. Obama is a case in point, as he went from executive orders promising a new era of openness to prosecuting more leakers than every other administration in US history before finally pardoning Chelsea Manning on his way out of the door.

Michael Wolff’s book Fire and Fury described how Trump has been both secretive and open at the same time: we have never known, simultaneously so much or so little about what a president has been doing and thinking. As Clare Birchall points out, he challenges some of our ideas about what being ‘open’ and ‘closed’ actually means.

Most presidents have hidden, or at least tried to hide, something. From Kennedy’s and Clinton’s philandering to Nixon’s bombing, everyone in the White House seems to have had something they wanted buried. Woodrow’s Wilson’s incapacitating illness was covered up so completely in 1919 that no one knew that his wife (a direct descendent of Pocahontas, no less) was acting President for more than year.

Yet no president has come to power with as many secrets as Trump. Perhaps Bill Clinton was his direct inspiration, with his constant dissembling and cover ups. In 2016 Trump refused to release his tax returns, while his medical report was written ‘in a few minutes’ (probably by Trump himself). Non-disclosure agreements abound in his business affairs and in the White House. There are also claims of ‘Catch and kill’ operations at major publications to bury stories about him, which have lately dragged in Amazon’s Jeff Bezos.

As President, Trump has issued secrecy waivers for lobbyists and refused to release White House visitor logs. His advisor daughter, inspired by ‘Crooked Hillary’, appears to have been using private email for public business. Trump’s only important mention of ‘transparency’ seems to be in reference to his border wall, which needs to be ‘transparent’. Here’s the full quote:

One of the things with the wall is you need transparency. You have to be able to see through it…And I’ll give you an example. As horrible as it sounds, when they throw the large sacks of drugs over, and if you have people on the other side of the wall, you don’t see them – they hit you on the head with 60 pounds of stuff? It’s over.

But what is it that Trump fears? Luke Harding’s book Collusion paints an extraordinary picture, in every sense of the word, of connections and conspiracy so vast that they are hard to believe and difficult to fathom. There appears to be a deep, twisted and toxic set of connections to Russia spanning decades and covering everything from Trump’s money to his cabinet picks. These begin with Soviet (and then Russian) intelligence overtures to Trump since the late 1980s, possibly involving compromising material. These are then overlaid with proposed business deals in the 1990s, the bailing out of Trump via Deutsche Bank and finally the infamous alleged meetings over leaks in 2016. The infamous Steele dossier, which is in a sense a raw intelligence statement rather than finished product, may be the bombshell hiding in plain sight. As Sarah Grant and Chuck Rosenberg explain :

The Mueller investigation has clearly produced public records that confirm pieces of the dossier. And even where the details are not exact, the general thrust of Steele’s reporting seems credible in light of what we now know.

Though large parts are not confirmed it has ‘held up well’. Wolff claims that there are other (worse) secrets hidden in their accounts.

While much of this remains circumstantial, Trump’s behaviour with Putin is certainly bizarre and, in national security terms, downright dangerous. When meeting Putin in late 2018, Trump had no note taker of his own and confiscated his interpreter’s notes. As this article points out:

President Trump has gone to extraordinary lengths to conceal details of his conversations with Putin, including on at least one occasion taking possession of the notes of his own interpreter and instructing the linguist not to discuss what had transpired with other administration officials.

This means that ‘there is no detailed record, even in classified files, of Trump’s face-to-face interactions with the Russian leader at five locations over the past two years’.

Yet, as the Wolff book points out, Trump’s White House is also oddly transparent and open, partly by intent and partly by accident. Trump committed to be, as Mark Fenster calls it, ‘morally open’ to the American people and, whichever way you read that, it is true. You do not need to search beyond Trump’s own Twitter account to know almost everything that the current President is thinking (and, interestingly, all those tweets are covered under the Presidential Records Act). Trump spectacularly demonstrated the power of the President to ‘declassify at will’ when he (accidentally? purposely?) disclosed sensitive Israeli intelligence on ISIS to Russia. He has also allowed cameras to film cabinet meetings and, more infamously, a meeting with Nancy Pelosi, which she branded her ‘skunk tickling’ clash. His declaration of a border emergency, and his admission that he ‘didn’t need to do it’, was part of Trump’s ‘honesty’ or his inability to understand that a politician needs to discriminate between their public (stated) and private (actual) motives: he is open because he is ‘undisciplined in his lack of hypocrisy’.

Part of this openness is accidental. For all the NDAs, this is by far the leakiest administration in modern history, with a stream of leaks opening up everything from Trump’s private life and racist views to the planning and chaos at the heart of government. A constant flow of memoirs have given us all sorts of details, including the fact that officials discussed using the 25th amendment to remove Trump in 2017. Bombshell leaks about everything are becoming the norm. Only in January 2019 did we discover that Trump was being investigated by his own FBI as a national security threat. It’s hard to imagine how the press and public would have reacted to such a revelation about Obama. Wolff claims that the biggest leaker, the super-leaker, is Donald J. Trump himself, who spends his evenings ranting to his billionaire friends on the phone.

Trump also has a remarkable ability to encourage greater openness pressure by his own actions, in what is commonly known as the ‘Streisand effect’. His rants and attacks have attracted the attention of the media and opponents and played an important part in the many ongoing investigations from the intelligence agencies (some of who he has insulted and sacked) and Congress (who he has raved about regularly).

Wolff’s book mentions that, among Trump’s many odd fixations, is an obsession with John W. Dean. He was Nixon’s White House Counsel who, fearing he was to be made the Watergate scapegoat, co-operated and gave evidence to the investigating committee in a blaze of damning publicity. Why, you may wonder, would Trump fixate upon someone with knowledge of something turning against him and going public?

The question is whether it will be Trump’s secrets or his openness that end his presidency. Amidst all this hyper-modern post-truth politics, Mueller’s investigation appears oddly old fashioned, patiently following the oft-repeated dictum to ‘follow the money’ and Robert Caro’s instruction to ‘turn every page’. The investigation is fundamentally about Russia, not Trump, but from what little can be gleaned, Mueller is quietly, privately and patiently assembling fragments and pieces to tell a devastating story. We still know little about what’s happening, but it may be that Trump’s collusion and obstruction are the same thing. Just like Clinton’s Whitewater investigation, no one knows quite where such patient, legalistic processes can lead and what they can reveal.

As publication is imminent, there’s now another transparency battle looming, as, legally speaking, the Attorney General does not have to release the report to Congress or the public. The new Attorney General, William Barr, promised repeatedly to abide with the procedures for sharing Mueller’s findings, but they do not obligate him to do anything except inform the public and Congress Mueller’s investigation is complete. That’s not to say, however, that Mueller’s report won’t be the most leakable document since the Steele report.

So far, documents have been the key. Whatever ‘thing’ happened, it needs to have been written down or recorded. So far, remember, Mueller was triggered by James Comey’s contemporary notes of his meeting with Trump. Flynn was caught out on intelligence recordings. Trump’s lawyer appeared to have been recording their conversations. Though you would assume care would be taken, Donald Trump Jr’s publishing of his emails shows there is a trail and Trump’s odd ‘recording’ tweet seemed to hint, with shades of Nixon, at some sort of taping system.

Records are at the heart of any good openness regime, and are normally behind any big scandal. Remember, Nixon was caught by his own recordings, not the allegations. For all his claims of being new or different, whether Trump stays or goes may depend very much on the age-old question of whether someone wrote it down or pressed record.

This post represents the views of the author and not those of Democratic Audit. 


About the authora

Ben Worthy is Lecturer in Politics at Birkbeck College, University of London. He is the author of The Politics of Freedom of Information: How and why governments pass laws that threaten their power.

Marlen Heide is a Ph.D. student at the Faculty of Communication SciencesUniversità della Svizzera italiana at Lugano.


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LGiU Fortnightly Podcast: Does transparency lead to trust in politics?

trust in politics

Listen in to me speaking on the Local Government Information Unit’s Fortnightly Podcast

What does it mean to be transparent in the public sector in this context? We speak to Dr Ben Worthy of Birkbeck University on his research on the impact of FOI in local government and the importance of narrative when publishing data.

Hosted by Jen Glover and Jonathan Carr-West, featuring Ingrid Koehler and Dr Ben Worthy.

Listen to it on the site here or on sound cloud here.


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New Paper: Transparency: Negotiating Institutional Domains

Transparency: Negotiating Institutional Domains

Date Written: October 30, 2018

Abstract

Transparency over the last decade has entrenched itself within political discourse as a kind of universal good that is both an instrumental means to a number of positive outcomes (such as improved trust or accountability) and an end in itself (Meijer 2013). It is, moreover, an idea that is universally supported across the political spectrum as a means of opening up institutions to public scrutiny (Birchall 2014). Underneath this acceptance, transparency can be many things. Darch and Underwood describe it as an ‘ideologically determined political initiative that can be deployed to achieve a range of different agendas’ (2010, 49:7). The exact dynamics and divisions vary from country to country and area to area. Transparency resembles democracy itself, with a general consensus on the concept, but with its interpretation ‘open to complexity, contradiction and numerous varieties’: It is in some senses an ‘empty signifier’ that can be ‘filled’ by very different interpretations or emphasis (Stubbs and Snell 2014, 160).

Download it here https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3275200


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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.


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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


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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.