opendatastudy

Research on Open Data and Transparency


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Secrets, Lies and Coalitions: Should Post-Election Negotiations be Secret?

British opposition Liberal Democrat LeadAn interesting point of view from Liberal-Democrat Minister David Laws reported in the Guardian on the need to keep post-election Coalition talks secret (with a Coalition of some kind looking very likely).

In a keynote speech at thinktank the Institute for Government on Monday, the Liberal Democrat MP for Yeovil said he thought that the way the coalition was formed in May 2010, without the then head of the civil service, Gus O’Donnell, in attendance, allowed politicians to “cut to the chase more quickly and have slightly more candid, productive arguments”.

He said that coalition talks are more effective when politicians don’t “feel they’re being minuted and recorded by civil servants than when they feel that everything is being done in a more public way”. Laws argued that it can be difficult for the civil service to maintain complete independence when it is drawn in to advising different political parties.

He continued: “I think it was William Hague in May 2010 who joked, when we locked Gus O’Donnell out of the door … that at least now he wouldn’t need to worry about freedom of information requests coming in about what we were discussing and, sure enough, on the very last day of the coalition talks … the civil service received the first freedom of information request from some industrious journalist asking for the minutes from all our coalition talks. We were able to say quite honestly that there were no government minutes.”

Two quick thoughts here. First, how democratic is  it to keep coalition talks secret? Second, why not just make an FOI for any emails or phone call notes (even texts?) between officials or others relating to what’s said during or after the event?

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From Chilcot to Snowden

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One often forgotten driver of openness are Public Inquiries. Large, detailed and forensic, they are often seen as way for politicians to hide a problem away. Yet they can also be very helpful in pushing the boundaries of what we can access.

Inquiries can create pressure by what they expose. The Arms to Iraq inquiry of the 1990s unearthed all sorts of scullduggery and helped lead to the UK Freedom of Information Act (and the famous phrase being ‘economical with the truth’). In Ireland the famous beef scandal did a similar thing. Due to their detail they can also give all sorts of interesting pieces of information that journalists can chase. The succession of Iraq War inquiries (now on its fifth) helped Chris Ames put together an amazing series of documents chronicling the development of the famous WMD dossier-you can see the results of his many years of effort here. His paper trail revealed that much of what politicians said was very, very economical.

Even when Inquiries don’t reveal all, they tell us where the gaps are. The gaps in their knowledge are often as interesting as what they expose-the famous 9/11 redactions that Obama promised to release (but hasn’t) continue to attract attention. In December last year two members of Congress were pressuring for a 28 page redaction of a Congressional inquiry to be released dealing with possible foreign assistance in the attacks (there’s a detailed discussion here).

In the last week there are two interesting inquiry related stories to keep an eye on. The first is the Chilcot inquiry into Iraq. It seems the inquiry has been battling to access certain notes (130 in all) written by Blair to Bush in the run up to the Iraq war-notes someone appears very keen on not releasing. Cameron has now promised the report will be released in 2015.

The second is the Snowden leaks of NSA surveillance. Today it emerged the Guardian has used the US FOIA to obtain a report detailing the damage it did-it claims the revelations did huge damage-but the actual evidence is itself blacked out.


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To Block or Not to Block: Does Veto Use Matter?

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As we know from the recent controversy over HS 2 and Charles’ ‘black ink’ letters, if the government doesn’t want to release something under FOI, it can use its veto to block a decision from the appeal system. Under section 53 of the Act it can just say no (the only other veto is held by the head of both Houses of Parliament)-see this BBC overview.

Since 2005 the veto has been used seven times. Seven times too many, argue campaigners but use is rather sparing compared with other countries. Does it really matter if the veto is used?

The first reason veto use matters is because it has been used on some of the truly ‘sensitive’ issues. Vetoed or blocked requests include

  • the Cabinet minutes where the war in Iraq was discussed
  • letters from the heir to the throne to government ministers
  • background decisions relating to Scottish devolution (not too sensitive normally but right now a bit more so)
  • The business case for HS2

See this House of Commons Library Note for an overview. All these are sensitive political issues: from Iraq to HS2 they are controversies that can severely damage reputations and policies. They also touch on sensitive areas of government and ‘constitutional issues’ such as the Monarchy or keeping cabinet discussion confidential. Government nervousness is shown by past attempts to totally exempt cabinet documents or extend the veto use (see page 17 of the government’s response to the post-legislative scrutiny of FOI).

There is a very large element of crocodile tears here-Cabinet confidentiality is a very important part of how government works-except when Ministers need to leak. Former Cabinet Secretary Gus O’ Donnell’s concern over FOI ‘taking away’ confidentiality was based on two examples he gave-one a very unusual situation (Coalition negotiations) and one a hypothetical example that never happened.

There’s a bit of a dilemma for politicians: the more the veto is used, the less attention it will attract. Truly cynical governments should (and have) used it more often. The Australian government used it 48 times in the first four years of its own FOI Act. The result? Everyone stopped noticing (see page 6 of this report and this CFOI briefing).

Country Use of the Executive Veto in first four years 
Australia 48
New Zealand 14
Ireland 2
UK 1

 

The second reason it matters is that the veto sends a ‘negative signal’ out to the system, telling everyone else that the government in charge doesn’t think the system is working as it should. It’s a vote of no confidence in FOI as a whole. Like any other veto it tells us that something, somewhere is not working very well.

The third reason is the effect on the public. FOI was designed to bring openness and confidence or at least reassure those who fear government secrecy. If government chooses to block something suspicion almost always follows, especially on such sensitive issues. To take the example of the FOI requests for the Iraq war minutes, few, I think, would believe it was vetoed due to the importance of preserving collective cabinet secrecy. They would believe that the government did not want us to see what the minutes did (or did not) say. Similarly there may be the suspicion with the letters from Charles that blushes are being saved (though whose I don’t know).

So the conundrum for government is whether to use it a lot or not at all. Use it a lot and hope no one will notice it-but you might get a reputation as secretive and the system as whole will suffer. Use it not at all and expose all sorts of difficult issues. No wonder Tony Blair saw FOI as one of his two biggest mistakes (the other was banning fox hunting with dogs).

 


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Extending FOI?

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Should the Freedom of Information Act (FOI) be extended to include private bodies doing public work? In the past the Public Accounts Committee (PAC) has argued it should in a report on PFI projects. In July 2012 it recommended that Network Rail, currently outside of FOI, should be covered. Nor are they alone. TheLocal Public Data Panel, a group of experts overseeing transparency and Open Data reformed across local government, warned of an erosion of public access due to the contracting out of services.

Why do it?

Extending coverage to private companies running public services, such as rail or road providers, is on the face of it logical and popular. The Coalition Agreement states it as an aim and Labour have committed to it since 2012. However, the devil lies in the detail and in the persuading of companies to do it, particularly now. But, while politicians prevaricate, some information is creeping out by the back door.

Most laws cover only information held by authorities, which can include some information held about work done by private bodies. Many companies are happy to provide information but not all, as our research on FOI and local government shows.

In the UK, Gordon Brown was the first to suggest extension of FOI to private providers in 2007. After several years of consideration it was decided to cautiously extend it to only a limited number of bodies. In 2010, the issue of extension surfaced again when new Deputy Prime Minister Nick Clegg aired the possibility that FOI could cover a wide variety of new bodies from Network Rail to utility companies. The Conservatives had also pressured the previous government to cover the nationalised bank Northern Rock.

Meanwhile, over the border in Scotland, the Scottish government began to consult on its own extension to selection of private bodies under its separate FOI Act. Again, following a long process, the final decision was to not do so.

Why Not?

Why have so few governments tried to extend coverage? As the UK and Scottish experience shows, even discussing extension can be a time consuming business, requiring a great deal of consultation and consideration.

More importantly, the arguments against extending FOI can be persuasive ones. Businesses argue that they can’t afford it (‘it’s too expensive’) and don’t need to (‘it’s unnecessary as we publish most of this already’). Here is the list of reasons for not extending FOI cited by the Scottish government, which would probably be enough to give even the most pro-openness politician pause for thought:

  •  ‘No compelling evidence of a problem or of unmet demand for information.
  • Considerable information is already available through the relevant public authority – as well as by various statutory and regulatory means.
  • Wide concern about the potential resource implications and administrative burden of extension – particularly in the current economic climate
  • Most contracts stipulate co-operation between contractor and authority regarding information requests. Extension to contractors could be deemed to be a ‘discriminatory change in law’ – with costs passed to the public sector
  • Potential issues arising from differing regimes operating within the UK – including competitive disadvantage
  • Concerns that coverage would impact on private business engaging with the public sector and that resulting costs would be passed on to public authorities
  • That extension would be contrary to Scottish Government’s aim of reducing unnecessary regulation’

Creep in By the Back Door?

 Interestingly, other developments and innovations may mean some level of transparency, through FOI and now Open Data reforms, may slowly ‘creep up’ on private companies. In Ireland, for example, it was recently decided that the Ango-Irish bank could be subject to Environmental Information Regulation requests (an equivalent FOI for environmental matters).

In the UK the Ministry of Defence has begun ‘naming and shaming’ apparently poorly performing contractors. At local government level, one high profile joint venture between IBM and a set of public bodies has explicitly committed itself to FOI and many authorities are determined to make FOI access part of future contracts. In parallel, sites such as Openly Local or Contracts Finder allow the public to find out more about, for example, councils and their suppliers. The Justice Committee’s 2012 scrutiny of FOI concluded that openness clauses in contracts were the best way to move forward (see from para 233 onwards here).

Use of FOI may even creep outwards, as it has here with Train Companies asked for salary figures (train companies are not covered by FOI but one answered a FOI request anyway). Only one FOI law in the world currently wholly covers private bodies, South Africa’s Promotion of Access to Information Act 2000, though it’s not clear if or how it works. The Indian Right to Information Act 2005 also extends to previously public utility bodies now in private hands, though this was due to a ruling by its appeal body rather than by government action.

This ‘creep’ is no replacement for full FOI coverage but the whole issue of extension leaves politicians in a dilemma. They wish to hand the public more power to hold public services to account but are reluctant to upset business or add any regulatory burden, especially now. Will the onward move of transparency and Open Data leave them with no choice?

The first version of this article was originally published on the LSE policy blog.