Some thoughts on transparency and freedom of information
Over the summer the Government announced plans to set up a Commission to review the freedom of information regime.
This could have been an opportunity for celebration. An update of the Freedom of Information Act to take account of the increased prevalence of technology in the storage and management of information would be well overdue. Changes to take account of the fact that increasingly, public services are delivered by bodies who are not subject to the Act would also be welcome. There would be a range of other opportunities to clean up and clarify key provisions in the interests of transparency.
That might not have been an unrealistic expectation. This Government, and its 2010-2015 predecessor, has set great store in its public commitment to transparency. The commitment of the Cabinet Office in particular to opening up datasets has been a positive step. Open data advocates were warm in the praise of the outgoing Cabinet Office minister Francis Maude, seen as the driver of this agenda in Whitehall, although perhaps the real world benefits of this kind of transparency have yet to become apparent – the projected “army of armchair auditors” who were expected to access and use this information has not emerged.
This reflects the point we made in our 2013 publication “Your right to know”, that transparency and accountability were not the same thing. A commitment to proactively publishing official information goes some distance, but it needs to be accompanied by having the systems in place that allow people (elected representatives, the public) to use that information to hold people in power to account. Transparency without accountability is pointless. Accountability without transparency, on the other hand – well, that’s impossible. Our 2014 publication “Hiding in plain sight” illustrates just how central to accountability the provision of information is. It is not some abstract issue of interest only to data geeks – excessive secrecy and privacy in public services risks profound failure, and the knock-on blight that this causes to people’s lives.
Back to the FOI Commission. The reason why the appointment of the Commission has been greeted by dismay rather than optimism is that it is thought that it will be basing its work on the presumption that transparency is a bad thing – administratively inconvenient, politically unnecessary and democratically superfluous. Its terms of reference frame the debate in transactional terms – about money wasted through dealing with FOI requests, rather than in the more expansive (and useful) relationship between transparency and democracy. The people appointed as Commissioners are not ones who, in the past, have voiced full-throated support for the principles of openness. And, lest we forget, the Commission (which reports next month) has only just issued a public call for evidence. The UK Open Government Partnership (a constellation of a range of civil society bodies, of which we are one, who work with Government to agree key priorities on openness following an international framework) have agreed to hold their counsel on agreeing the next three-year National Action Plan priorities for Government until a response from Government to the Commission’s recommendations have been received. This reflects the worry amongst many that the Commission will recommend the abandonment of many of the central planks of the FOI regime.
So what could those recommendations be? Potential options to restrict freedom of information have been discussed since well before the Act came into force ten years ago. Charging for dealing with requests is a popular idea (bucking an international trend – in Ireland, for example, the charging regime has recently been relaxed). Another is expanding the scope and nature of the various exemptions to the Act, including removing the “public interest” test in some cases – that test having been a powerful way for campaigners and members of the public to secure access to critical pieces of public information. It also seems likely that we will see suggestions for an expansion of the “safe space” for Ministers, civil servants and others to develop policy (driven in part by the judgment against the Government in R (Evans) v AG). That space is necessary, but should be as small as possible. In our view, the current arrangements set the right balance, and have the advantage of having been refined by case law and Information Commissioners’ findings and guidance in the past ten years.
These mooted changes would fatally flaw the Act and critically undermine not only the freedom of information regime in this country, but also the systems of accountability that rely on that regime.
Ultimately, speaking as someone who is (sort of) a public official, public information belongs to the public, not us. We cannot hope to build huge datasets and put high walls around them, saying that the way we design services is “data-driven” or “intelligence-rich” but denying the public (who have paid for, and provided, that information) the right to access it, to improve it, and to put their own perspective on it. To do this is not only anti-democratic – it is also administratively perverse, because it means that data will be of a lower quality. The process and principles of openness – public deliberation, dialogue, debate and disagreement – may be inconvenient to us. It may appear to make our jobs more difficult, at least in the short term. But it is critical both to democracy and to the need to be able to ensure that services are being planned and delivered in the best interests of all of us.
These fears may be unfounded. But we, and others, await with trepidation the publication of the Commission’s report in November, and will be ready to robustly debate with Government the need for any recommendations which draw back from the regime we have at the moment.