opendatastudy

Research on Open Data and Transparency


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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

 

 

 


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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?