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Research on Open Data and Transparency


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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

 

 

 


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Donald Trump: Openness, Secrecy and Lies

Read my new article on the Openness, Secrecy and Lies of Donald Trump for PDP, inspired by being stuck in airport with only ‘Fire and Fury’ for company. It explains how Trump manages to be both secretive and open at the same time and also mentions the wonderfully named ‘Barbara Streisand Effect’  Donald Trump – the secretly open President – Ben Worthy (Freedom of Information)-1. 

If you are interested, you can see some of my other pieces on Trump on Medium here  https://medium.com/@benjaminjworthy


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Write Me A Letter: 10 thoughts on the Prime Minister’s letter on Openness and Data

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Theresa May is a keeper of secrets, by inclination, style and force of habit. So the publication of a letter urging her government to open up may come as a bit of a surprise, along with a seeming openness push. This is especially the case this week, when the government is making the DUP’s money secrets more, not less, opaque. But is the letter less than the sum of its parts? What does it all mean? Here’s 10 quick thoughts…

  1. It’s all very David Cameron-a letter not a speech, an article or launch. My suspicion is a letter is designed to make it look like you’ve done something (‘I’ve written them a letter! What more do you want?’) (Cameron wrote one in 2010 then another to tax havens in 2013).

 

  1. What standing does a letter have? Do you have to do it? Should you take notice of an (undated) private minute from the Prime Minister? Can it be safely ignored? I’d guess ‘not much’, ‘no’, ‘no’ and ‘yes’.

 

  1. The ‘next stage’ actually sounds very 2010-2011.

 

  1. It’s released on a Friday, one week before Christmas on a heavy EU news week (though aren’t they all now?).

 

  1. There’s a reprimand that ‘a small number’ of departments have fallen behind. It seems more than that as ‘Departments have become less transparent since 2010 and have not consistently fulfilled their requirements’. According the IFG the rot set in, ironically, in 2010 but has got worse recently. I think May should focus on whoever was in charge of the Home Office 2010-2016, as they seem to have been one of the worst performers in terms of FOI.

 

  1. It’s oddly worded part 1. It has a pretty tepid tone. It reads a bit more like a forced Christmas thank you letter than a ringing call to arms for openness.

 

  1. It’s oddly worded part 2. It talks of a strange, vague thing called ‘online transparency’ that seems somewhere between open data and openness. And, as many people have pointed out, it’s a pdf. That’s neither transparent or useful, in ‘online’ terms.

 

  1. It’s oddly worded part 3. No mention of FOI despite an ongoing FOI consultation (launched in late November).

 

  1. It’s not re-launching or pushing any new policy. One would expect a Prime Minister to perhaps use the letter to push, for example, gender pay transparency (not going too well) or even anti-corruption.

 

  1. Highlighting civil service sickness and absence data first seems slightly out of place-is this designed for ‘lazy sickie (Remoaner) civil servants’ headlines?

 


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Does FOI Create A Chilling Effect? Evidence from the UK

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Michael Gove got caught doing it. Now ‘family members / senior advisers’ Ivanka Trump and Jared Kushner have been found using private emails with another four senior White House staff, including Steve Bannon, also alleged to do the same in what CNN calls a colossal blind spot. But is there really a ‘chilling effect’ on records because of FOI? Does an new Act lead to people not writing things down, using the phone and private emails more and ‘emptying out the archives’?

The negative effect of FOI on policy is a long story, going back to the 1980s in Australia when it was feared FOI would lead to ‘hidden filing’ or ‘post-it-note’ cultures In the UK, Tony Blair claimed in 2010 that FOI had led to more caution over recording decisions, concluding the law was

not practical for government…if you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations…if those conversations then are put out in a published form …you are going to be very cautious. (Guardian 1/9/2010)

David Cameron also hinted that it was disrupting decision-making and was, as he put it, ‘furring up the arteries of government’. Former Cabinet Sectary Gus O’Donnell claimed it had ‘hamstrung’ government, though when pressed he could only offer three isolated examples-two hypothetical and one based on the coalition negotiations. The claim is also regularly made at local government level. The current UK Information Commissioner, herself an archivist, is taking it sufficiently seriously to push a new legal duty to record.

But is it really happening?

There has been plenty of high profile examples. There’s also some good evidence from Sweden, home of the world’s first FOI –ish law in 1766, that there is what they label an ‘empty archives phenomena’.

But whether it’s happening wholesale across government is another matter. The UK Justice Committee looked into it 2012 but ‘was not able to conclude, with any certainty that a chilling effect has resulted from the FOI Act’. The Chairman of the 2015-2016 UK independent review, that looked into chilling as part of its remit, chairman concluded that he ‘struggled to find is actually cases, clear cut cases, where a lot of information has been released and discussions of the kind … have been damaging’. Research at central government found there was concern and isolated instances but no general trend and for local government there appears to be a few exceptional cases but nothing systematic. Just to make it more complex, in Scotland and England there was some evidence of a positive professionalising effect where staff kept better, more professional records because of FOI. Our own studies found that many officials were more concerned with the consequences of not having a record if their superiors or, even worse, a judge came looking for it.

There are two problems with finding out if any chilling really is happening. The first is the difficulty of proving or disproving it. There’s lots of anecdote but not much hard evidence. By its nature it is very difficult as proving it means proving a negative (i.e. something didn’t happen), and means asking people to admit unprofessional conduct. One study found many comments were jokes or light hearted quips.

Second, it’s also very difficult to prove that any changes are a result of 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.  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.

The problem was rather wonderfully summed up during the UK independent review hearings when two ex-Home Secretaries, Michael Howard and Jack Straw, cross-questioned the ‘chilling claiming’ Lord O’Donnell, a former Head of the Civil Service:

LORD HOWARD: Do you have any direct experience of ministers avoiding putting things into writing in order to escape the provisions of the legislation?

LORD O’DONNELL: I mean, in a sense, how could I? Minister A phones Minister B on his mobile phone and I’m not involved in that process at all. That’s what I mean. The whole evidence thing you’re asking for is virtually impossible …

LORD HOWARD: Not at all. You might have suggested to a minister that a meeting’s necessary to discuss a particular decision and you might have been told, ‘No, I don’t think we need one’ and you might be able to form quite a good judgment that that was the reason why the meeting wasn’t taking place. Have you ever come across something like that?

LORD O’DONNELL: Yes, is the short answer, and yes, I’ve had occasions where – I mean, I think the area of contingency planning. You know, I think there are various reasons why ministers are very reluctant to commission planning for outcomes that they do not want to happen.

JACK STRAW: But is that directly related to FoI?

LORD O’DONNELL: That’s a combination of FoI and leaks, let’s be honest.

JACK STRAW: Yes, because I can recall in the early part of the 1997/2000 government, well before FoI was a serious prospect in people’s minds, that there were some ministers who were very reluctant to go in for contingency planning on any basis because they were just reluctant to. It was nothing to do with FoI. (Independent Commission on Freedom of Information 2016a, 84–86)

 

It is impossible to say if there is or is not an effect. It is likely there is some chilling at the margins and obviously much more skullduggery from politicians than we know of but it is not as widespread as some claim.

The difficulty is that the myth could become reality. If people believe it is happening, are they more likely to do it? The previous Information Commissioner warned that ‘if mandarins keep talking about a chilling effect, theirs is a self-fulfilling prophecy’. But the reassuring thing is that, as with many conspiracies, getting caught can carry a high price-just ask Hillary Clinton.

Ben Worthy is a lecturer in politics based at Birkbeck College, University of London and is author of The Politics of Freedom of Information: How and why governments pass laws that threaten their power published by Manchester University Press. You can read chapter 1 here.

Post originally in the IRM Newsletter

 

 


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How Open is Britain in 2017 and Where Next? 28 September 2017 – 18:30:

How Open is Britain in 2017 and Where Next?

Starts 28 September 2017 – 18:30
Finishes 28 September 2017 – 20:00
Venue G15 Malet Street Building, Birkbeck College
Free entry; booking required

Event description

In the last decades British government and society has been opened up in all sorts of new ways. From the Freedom of information Act to Open Data and from surgeons’ performance rates to ownership of UK businesses, we know a great deal more about what is being done and spent in our name. New initiatives promise new openness about everything from gender pay gaps to executive bonuses. Exposés such as the MPs’ expenses scandal show what effect the new openness can have.

But how open is Britain? How well do these new systems of openness and streams of data work? Can they be avoided or turned to politicians’ advantage? This seminar asks a panel of experts to discuss how open Britain really is and to look to the future and ask, as Britain moves into the opaque world of the Brexit negotiations and faces new and uncertain post-EU world, how open will the new UK be?

Panel:

Martin Rosenbaum (Journalist, BBC)

Rosemary Agnew (Former Scottish Information Commissioner and now Scottish Public Services Ombudsman)

Professor Sarah Childs (Professor of Politics and Gender, Birkbeck College)

This event will be chaired by Dr Ben Worthy, whose book The Politics of Freedom of Information: How and Why Governments Pass Laws that Threaten Their Power was published in 2017.

Sign up here https://www.eventbrite.co.uk/e/how-open-is-britain-in-2017-and-where-next-tickets-37457675917