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

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

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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 


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

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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.


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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


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Fight, Hide, Avoid: Resistance to Freedom of Information Laws

trump-oval-office-advisorsAlthough there is no clear evidence of any government-wide, systematic resistance to freedom of information laws in the UK or elsewhere, there are examples of avoidance and resistance, often at very high levels and in sensitive situations. There appear to be numerous strategies to avoid or mitigate FOIs. Some clearly contravene the law while others run against the spirit of openness. Examples include:

Use of private email systems. In the UK, Michael Gove was found to be using a private system when he was Education Secretary, leading to an ICO ruling in 2012 clarifying the distinction between public and private communications (see below). Allegations have been made about other politicians trying to circumvent FOI through private emails, from Sarah Palin to various members of Donald Trump’s team, including, according to CNN, Steve Bannon, Jared Kushner and Ivanka Trump. Most famously, Hilary Clinton’s use of a private server and email may have violated the Federal Records Act and later archiving regulations, though whether she did this simply for convenience of access (as Clinton claimed) or to hide from FOI requests and potential Congressional investigation (as her opponents alleged) is unclear.

Non recording of information (known as the ‘Chilling Effect’). This type of non-minuted, informal mode of decision-making can take many forms, stretching from using phone calls, verbal decisions or disposable post-it-notes to having informal meetings entirely without records. The Swedish government, with the world’s oldest openness law, calls this the ‘empty archives’ phenomenon and mentions of ‘post-it-note’ approaches date back to the US in the 1960s and Australia in the 1980s. There was some recent evidence of non-recording in Scotland when, in November 2017, the Ferret unearthed evidence that the Scottish Environment Protection Agency asked for ‘verbal’ updates instead of written documents, mentioning FOI as a reason (see the emails here on page 11-12). This chain from 2008 shows a UK official apparently urging others to delete emails because of FOI.

Informal meetings, made famous by Tony Blair’s (pre-FOI) ‘sofa government’ style, are more difficult to prove. However, in March 2018, giving evidence to the RHI ‘Cash for Ash’ Inquiry, the Head of Northern Ireland’s Civil Service admitted that ‘the practice of taking minutes had “lapsed” after devolution’. The BBC quoted him as saying “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.’ He did, however, qualify this and ‘agreed with the inquiry panel that when it came to ministerial decisions on matters of public money it should be recorded.’ Former Head of the UK Civil Service Gus O’Donnell had made similar claims for the UK Cabinet being ‘hamstrung’ by FOI, though relied on anecdote and hypotheticals to illustrate his point (see this analysis).

Involvement of press advisors and media officials. The Scottish Information Commissioner spoke of claims of ‘deliberate delaying tactics and requests being blocked or refused for tenuous reasons’. One study of more than 2000 ATIA requests in Canada by Professor Alasdair Roberts found exactly this happening, with ‘requests that were identified as sensitive, or which come from the media or political parties, found to have longer processing time, even after other considerations are accounted for’. Procedures within government focused on ‘giving special attention to politically sensitive requests for information’, ‘flagging’ difficult requests electronically and using communication officers and Ministerial offices as gatekeepers for releases. Similar claims were made in the UK for the ‘Clearing house’ that was intended to co-ordinate responses across government.

Timing, requesting and release. One approach seen in Ireland and elsewhere is for government departments to deprive journalists or others of scoops by publishing request responses online simultaneously. Alternately, releases can be buried by publication on a busy news day or at the end of a week. Even more creative has been the approach of the FBI, who recently asked that FOIA requests only be sent by fax (though the FBI FOI email appears to still exist).

One important point to make is that while high profile examples exist, mainly from politicians, we found officials were generally as fearful of not having a record as having one, with the pressure from bosses or potential judicial review to keep a record outweighing the danger from FOI. Research at local government level in Scotland and the UK found there to be a positive, professionalising effect on records.

Two problems: Is it happening? Is it FOI?

Any research in this area hits two major difficulties.

How do we know it is happening? It is unclear how widespread such activity is. Are the examples above are the tip of the iceberg or isolated misbehaviour? By its nature, it is very difficult to prove a negative (i.e. something didn’t happen) in terms of records or avoidance and is often reliant on anecdote. One study found many comments to ‘not record’ were often jokes or light hearted quips. However, the problem is that the myth could become reality. One previous UK Information Commissioner warned that constantly ‘talking about a chilling effect’ can make it a ‘self-fulfilling prophecy’, so when Tony Blair claims FOI laws make politicians ‘very cautious’ or David Cameron argues it is ‘furring up the arteries of government’ they could make it happen.

How do we know it is FOI? Isolating and disentangling FOI as the cause of the problem is almost impossible. Fear of leaks, the arrival of new technology, new decision-making styles and the key question of resources all influence how and if records are kept. Ex-Downing Street Communications Director Craig Oliver complained that accusations made during the Brexit referendum campaign that Cameron was avoiding FOI by using WhatsApp misunderstood that it was simply quicker and more secure than email. Concerns over the non-recording of information go back far into the past. As the Justice committee pointed out, the 2004 Butler report raised serious concerns over Tony Blair’s use informal meetings and ‘sofa government’ a year before FOI came into force. James Callaghan’s famous quip captures the nuances and grey area between official and unofficial disclosure: ‘I brief, you leak’.

What can be done?

There exists rules on records and destruction in almost all FOI laws (and Scottish FOISA has them in section 60 and 61). In March 2018 the first charges were bought for a Councillor in Thanet ‘blocking, concealing or destroying records held by Thanet council “with the intention of preventing the disclosure by TDC of information”. This also touches on rules around whether emails are archived or deleted and more generally what records are kept and for how long, issues that proved controversial recently in relation to Scottish care homes and a panel looking into paramilitary disbandment in Northern Ireland.

Some laws also cover private emails being used for public business. In 2012 the UK ICO, for example, created new guidance in wake of Gove email controversy, making clear that texts or emails are covered if ‘information “amounts to” public authority business’ or “generated in the course of conducting the business of the public authority”.

In 2017, former Scottish Information Commissioner Rosemary Agnew called for a ‘radical re-think’ around how FOI works in terms of disclosure, recording keeping and release, so bodies ‘invest in dissemination of information as a way of doing business’ rather than through requests.

The letter from Scottish journalists in 2017 called for a specific legal duty to record decisions. The UK information Commissioner has also championed the creation of a ‘duty to create records or “duty to document”…a positive duty in law to create records of significant decisions, actions and events’. That means public bodies must keep ‘records explaining and providing context to why a specific course of action was taken [including] Minutes of important meetings, decisions, that led to policy change and new initiatives’. Such a law exists in British Columbia following an email deletion scandal, though campaigners claim the law lacked teeth as it did not mandate the creation of records.

Further Reading

  • 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
  • Roberts, Alasdair S., Spin Control and Freedom of Information: Lessons for the United Kingdom from Canada (December 20, 2003). Public Administration, Vol. 83, No. 1, pp. 1-25, Spring 2005. Available at SSRN: https://ssrn.com/abstract=1308145