FoI Commission – Good for Stats?

The statistics community must shout loud in the debate about Freedom of Information reform or access to data could be set back a generation. There are accepted rules and practices relating to transparency and openness of data and the Government and civil service are on a path to fulfilling them.

The Government can achieve what it wants from its review of the Freedom of Information Act – to make a “safe space” and keep secret some advice it receives – while making the foundations on which policy is made more transparent.

The news of the review was, understandably, received negatively but there is hope for some positive outcomes. It is time for the UK Statistics Authority to lead.  

The Plan ………..

The Government announced plans for a commission on 17 July to review “whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice,” according to the announcement by Cabinet Office parliamentary secretary Lord Bridges. The commission “may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.”

The heavy weight five-person commission will report to Cabinet Office minister Matt Hancock. It will be chaired by Lord Burns and other members will be former MP Jack Straw, Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson. Its findings are expected to be published in November.

The problems (possibly) ……..

There’s no need to beat around the bush – this is a major threat to FoI. In the annex to this blog, I set out some of the many comments that justifiably and fairly express that fear. The fears are summed up well in a letter from the Open Government Network to the Cabinet Office minister. I also set out the irritating way that open government has been confused with open data – both are important and there is some overlap but modest steps on the latter do not justify a reversal of the former. It is also fair to say that prior to the July announcement there was no great demand for the review – the Information Commissioner and the parliamentary Justice Committee both said in the last parliament (see the annex below) that FoI was working fine. Finally in the annex, the rising costs of the FoI are considered. While a few famous cases will have cost millions, the vast majority cost very little.

The opportunity ………..

If the panel is set on turning back on the progress of two decades, there is not much anyone can do but lets hope and assume they are not. At the same time there are clearly some elements of FoI Act and practices that the Government wants to alter. Recent episodes that might have influenced their thoughts include the debate about risk registers and the Prince Charles letters. Tweaking the rules will limit what can be accessed under FoI but need not be the end of FoI as we know it. Indeed, a more sensible FoI might put an end to the fiasco of policy making in ways to circumvent FoI, ie on the sofa, in the coffee shop, in self-destructing emails, private mobile phones and even, we recently learnt, post-it notes, and that would be no bad thing. It does no one any good.

It is not at all unreasonable to assume that the Government still believes in some form of openness and transparency, believing that being ranked as a world leader is of value. It spoke enthusiastically along such lines during the coalition parliament and nothing is known to have changed minds.

So, if the commission wants to get its tighter controls on the “safe space” and so on, it might well be keen as part of this review to offer something to the community, society and researchers in return. This is where statistics come in.

Lets get the commission to propose to the Government that it should publish the evidence behind policy and to fulfil the commitment to publish all the data that could be published. If it were to do that we’d be better off than we are now. We’d be swapping a few “secret” documents for a raft of evidence. It might not be as sexy as a note from Prince Charles but it would be far healthier for the country, democracy, engagement and generally making sure that the tax-payers’ pound is well spent to have the core evidence in the public domain.

What and how ……….

The UK Statistics Authority needs to step up for this one and make its mark as the independent body it is. Many of the parliamentary committees, both departmental committees and PACAC, who presumably value evidence and sound policy making should also get onto this. Policy makers in government should want this too – more transparency, more data and more data sharing would be appealing. It could also be of interest to top notch researchers like the Institute for Government. The ODI has already spoken. It’s the right thing to do, it will lead to all sorts of gains for society and policy-making, it need not cost anything (indeed could save money) and it would allow the Commission to deliver on its “safe space” commitment. What’s not to like?

Commission member, Jack Straw could be the cheer leader. He has been singled out, for example, by Chris Cook, as “a noted sceptic who has already proposed restrictions to it (FoI)” but he might be the one to deliver this aim.

Jack Straw is a member of the Royal Statistical Society. Don’t laugh. He’s spoken about the importance of statistics at the annual Royal Statistical Society conference. As justice secretary, he said he looked forward to seeing the 2007 statistics act in operation, as it would make official figures “the public’s statistics”. “Official statistics have become the hard currency of modern politics,” he added. “We want similar levels of trust for statistics as we have for the judiciary.”

This is important as statistics – or figures, data, evidence – underpin many policies. Not all but many. The same “evidence”, which can be more or less hard and more or less reliable, often prompts ministerial interventions in any case. If the media and campaigners spot and run with data showing an adverse trend, government will often act.

Improving access to the data would be in line with all the trends of open government and various codes that already exist. It is a requirement under the code of practice (notably Principle 8, practice 3) that applies to all government statisticians. The following practices are set out under “Principle 8: Frankness and accessibility”:

“3. Make statistics available in as much detail as is reliable and practicable, subject to legal and confidentiality constraints, offering choice and flexibility in the format according to the level of detail required by the user.
4. Publicise official statistics in ways that enable users to identify and access information relevant to their needs. Make access to official statistics as straightforward as possible by providing easy-to-use entry points.
5. Ensure that official statistics are disseminated in forms that, as far as possible, are accessible to a range of different audiences, including those with disabilities.
6. Ensure that official statistics are disseminated in forms that enable and encourage analysis and re-use. Release datasets and reference databases, supported by documentation, in formats that are convenient to users.”

If that code were fully lived up to by the government’s statisticians the need for FoI requests related to data would pretty much cease. If the Commission chose to push that and extend access to the evidence underlying policy, the increased openness would see a further drop in FoI requests.

As the Public Administration Committee pointed out in the summary of its 2014 report on open data: “……. there are unparalleled opportunities to harvest unused knowledge that otherwise goes to waste, which can be used to empower citizens, to improve public services, and to benefit the economy and society as a whole.” (Tenth Report of Session 2013-14, published on 17 March 2014.) The report also recommended that the government: “ensure that the data which is used to underpin policy work in all public announcements is published alongside the policy statements”.

The Committee went on to say: “The Cabinet Office should be much more active in ensuring Departments maximise the social and economic potential of open data, not least in increasing their own efficiency and effectiveness. ……. There is much to be gained from open data ….. (which) needs to be treated as a major government programme in its own right.”

The Government response was not entirely lacking in promise. It said that where data exists “the Cabinet Office will actively encourage departments to publish it.” It added: “The Minister for the Cabinet Office commissioned the policy profession to undertake a piece of work to promote the publication of the data underpinning policy development. The Cabinet Office will consider whether stronger mechanisms are required to enforce this.”

One point of FoI was to encourage public bodies to put their data in the public domain. If that ambition had been met, demands under FoI would reduce dramatically. I set out one case study a few weeks ago. The number of parliamentary questions would also fall. If all the data that could be public was in the public domain, the only requests would be to challenge the boundary of open or not open, not to find data.

Is this a half open door that needs a shove? Lets try.

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Footnote: Cabinet Office v Ministry of Justice

It seemed almost an aside but as part of the same announcement, the government shifted FoI policy responsibility from the Ministry of Justice to the Cabinet Office effective July 17, 2015. This was also poorly received. Blogger David Higgerson said the Cabinet Office is “consistently the worst performing government department when it comes to FOI,” and pointed out, “It is regularly censured by the Information Commissioner.”

That cannot be denied but might be explained by the nature of much of the CO’s work. That said, the MoJ responsibility always seemed a bit odd. The whole government structure for open data was a mess, and still largely is. (I wrote about this in May and June.) Putting FoI and other such policies – including more general transparency – in the Cabinet Office cannot be a bad thing. It’ll be up to the user community to keep tabs on the Cabinet Office as best as it can.

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Annex

The Downside ………..

Both July announcements were widely seen as threatening to freedom of information as now experienced. A “major attack” and “crackdown” on FOI is “clearly” being planned, according to a statement by the Campaign for Freedom of Information. “They don’t like the fact that the Act requires the case for confidentiality to be weighed against the public interest in disclosure,” said Maurice Frankel, the CFOI’s Director.

Blogger David Higgerson said: “At the heart of this commission is the concern that civil servants don’t feel they can speak freely for fear of what they say, or more aptly write, ending up becoming public via the Freedom of Information Act. Call me a cynic if you wish, but I spy a smokescreen aimed at making it harder for those in power to be held accountable by those who ultimately pay their wages – you and I.” An online petition campaign has begun with 85,000 signatures at the time of writing. The respected Chris Cook of Newsnight also suggested it was “quite possibly” the end of the FoI as we know it. And so on.

Confusing open government with open data …………..

On top of the general concerns about clipping the wings of FoI, there were irritations about the way data was referred to in the announcement. Was it just poorly drafted, was it over-spun or is the Government a bit confused? The government’s announcement used the previous disclosure of many datasets (the 20,000 on data.gov.uk) as an argument that the UK is “committed to being the most transparent government in the world.” Yet that number is a gross exaggeration of what’s new as many are just republication of data previously released on departmental websites. (And we only know that as a result of FoI requests!) “We were frustrated to learn that the UK Government has used its ranking in our Open Data Barometer in an effort to justify a move that could water down the Freedom of Information Act,” said the CEO of the World Wide Web Foundation, Anne Jellema.

Of course, a few excel spreadsheets does not amount to an open government! Open government and open data have much in common but are not remotely the same thing. Open government is normally agreed to consist of three main pillars: transparency, participation and collaboration, with GovLab setting out a full set of definitions. Open Data (in the case of governments referred to as Open Government Data (OGD) specifically) is commonly accepted to follow the open definition: open data is data which “anyone can freely access, use, modify, and share for any purpose.” There is a presumption to publish unless it is disclosive of personal details or in some other sense not to be put in the public domain.

The web foundation says: “By citing the UK’s ranking in the Open Data Barometer as proof that the UK has the world’s most transparent government, the UK Government is misleading the public by blurring the distinction between the two and neglecting to acknowledge the challenges that remain to becoming even more transparent.” The Open Data Barometer is a composite of many factors, but it is not intended to be a comprehensive measure of Open Government more broadly – an important distinction.

Does the FoI need reform ……………..

Whatever the truth about the effect on policy making of the risk of advice being made public, many people feel that the balance is not bad at the moment but also that changes could be made to make it more effective for those seeking information and less costly, restrictive and troubling for the public bodies.

One such balanced response came from the UK Information Commissioner who issued an initial response saying: “The Act is not without its critics, but in providing a largely free and universal right of access to information, subject to legitimate exceptions, we believe the freedom of information regime is fit for purpose.”

It’s also fair to say that the Government seems to be ignoring the Justice Select Committee report from three years ago. It conducted post legislative scrutiny of the Act, giving it a favourable review. In the July 2012 report, it said “The Freedom of Information Act is generally working well and its scope should not be diminished, although some concerns raised about its operation need to be addressed, according to MPs on the Justice Select Committee who have scrutinised the effectiveness of the legislation.”

Sir Alan Beith MP, then Chairman of the Justice Committee, said: “The Freedom of Information Act has enhanced the UK’s democratic system and made our public bodies more open, accountable and transparent. It has been a success and we do not wish to diminish its intended scope, or its effectiveness. The Act was never intended to prevent, limit, or stop the recording of policy discussions in Cabinet or at the highest levels of Government, and we believe that its existing provisions, properly used, are sufficient to maintain the ‘safe space’ for such discussions. These provisions need to be more widely understood within the public service. They include, where appropriate, the use of the ministerial veto.”

Demands and costs of FoI …………..

The number of Freedom of Information (FOI) requests is growing, the Justice Committee report said, as awareness of the legislation increases and some evidence to the inquiry raised concerns. Some witnesses suggested introducing fees for FOI requests in order to recover some costs. However, the report concludes that while FOI imposes costs, it also creates savings when the inappropriate use of public funds is uncovered – or where fear of disclosure prevents the waste of public money. “The MPs acknowledge the economic argument in favour of the freedom of information regime being more self-funding. Nevertheless, the Committee concludes that setting fees at a level high enough to recoup costs would deter requests with a strong public interest and therefore defeat the purposes of the Act.”

Ben Worthy, an academic at London University, addresses the issue of how much FOIA costs, observing: “The interesting point about the remit is that it tilts all discussion naturally towards the two issues of damage and costs, rather than any more equal cost-benefit analysis.” He reviews evidence on the cost of FOIA cost in the second post, stating, “Measuring the cost of FOI in any reliable way is almost impossible.”

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