Is All Openness Local?

Following our report on FOI and local government in England, we have had some interesting reflections on how FOI works elsewhere.  One of the really interesting points concerns how users are often focused on ‘local’ access to issues that are of importance to them. High profile expenses stories aside, FOI is actually about making a difference at the level of your own street or ‘micro-politics’ as someone wiser than me called it. Could this also be the way for new Open Data innovations such as fix my street?

Here’s the FOI (or FOIL) view from New York state:

‘Our FOI law (known by many as “FOIL”) has been in effect since 1974, and this office was created as part of the law.  There are approximately 100 state agencies, but more important to most residents are the thousands of local government agencies, i.e., counties, cities, towns, villages, school districts and the like.  Most residents have little connection with federal agencies in their daily lives and rarely have occasion to seek records under the federal FOIA.  A few have relationships with and a need to gain access to records of state agencies.  But everyone has a need at some point to seek information from local government, perhaps in relation to an environmental issue, building code and land use issues, the assessment of homes and other real property, the means by which taxpayers’ dollars are used or allocated by school districts, the qualifications of teachers and other public employees, the effectiveness of law enforcement functions – – the possibilities are endless.

We have also found, in general, that the smaller the unit of government, the more likely it is to be open.  In short, there is direct accountability. Most residents here, in the capital city of Albany, would recognize the Mayor walking down the street.  Few would recognize their congressman.

In short, despite the focus on Washington and the federal FOI Act, I believe that a local access to information law,  such as the 50 separate state FOI laws in the US, or a law of general application that includes local government within its coverage, is of primary significance and utility to the average person.  Further, for reasons suggested earlier, local government officials are more likely to comply with law and to be accountable that those higher up in the governmental chain of command.’

See http://www.dos.ny.gov/coog/ for more information, reports and analysis

Should We Give Them Some Space? FOI and Cabinet decisions

The retiring Cabinet Secretary Gus O’ Donnell spoke in an interview today about the need to amend FOI to protect decision-making. He was concerned that the possibility of release led to officials ‘fudging’ the minutes.

“I want the minutes to accurately to reflect what people have said. I want good governance…I want them to have an open space. I want us not to be fudging the issue by saying there was a little discussion.”

He also spoke of the nervousness over lack of certainty in the law over Cabinet discussions.

‘He said he wanted more certainty that Cabinet minutes would be protected than offered by the current law, suggesting amendments to the Freedom of Information Act. “If we could draft it in a way that would really enhance openness and transparency whilst allowing some safe space, that would be good for all of us”.

What Gus O’ Donnell is referring to is a variant of the so-called Chilling Effect.  We have concluded that FOI can have this effect but it doesn’t do so systemically and it is almost impossible to disentangle the effect of FOI from lots of other concerns (see page 16-18 in our local government report). However, these conclusions come with qualifications.

1. Finding evidence is very tough. FOI does cause nervousness but whether it then leads to changes is more difficult to prove. Gus also said in his interview ‘ he had not “fudged” any minutes, but was “nervous”. It would be interesting to see firm evidence and if the fudging refers to particular incidents or a general ‘shift’ in minute taking approaches. We found one or two clear cut cases but they were rare and unusual. Proving a negative and asking officials to admit unprofessional conduct is tricky.

2. Is it FOI to blame? Gus said that “Can I guarantee that this is going to stay private? No, I can’t.” But inhibitions (or lack thereof) over discussions are down to many things. Leaks were, are and always will be a huge issue- who said or did not say what and when was central to many recent controversies issues from the War in Iraq to the EU veto.  A well timed leak can hinder many enemies foreign and domestic. Even US Cabinet discussion about the impact of Wikileaks was leaked.

3. Many politicians and officials told us that the ‘politics’ of decision is often ‘off paper’. How and why minutes are recorded how they is due to many things from style to resources. It plays into wider styles of ‘doing’ decisions. Do you do unminuted ‘sofa government’ or are you more formal?

4. Interestingly, overall there were some paradoxical views held. Officials at other levels were more concerned about the consequences of not having a record rather than having one.

5. Very few requests are actually made for Cabinet documents. Only one release of Cabinet Minutes has taken place over Thatcher’s controversial ‘Westland’ affair. Some countries, such as Canada,  actually completely exclude all Cabinet material from FOI.

However, nervousness abounds among officials especially at senior level. This may also be heighted due to how they come into contact with FOI. Senior officials will only be copied into particularly sensitive or problematic requests. Unless they are particularly curious they will only see one in every hundred or thousand and the ‘worst’ one at that. In Ireland, such concern did help lead to a change in the law as it related to Cabinet documents.

Finally, Gus also spoke about the use of the ‘veto’ (called in the article the ‘nuclear weapon’) which can be deployed to overturn appeal decisions. This protection, then, is available but it has only been deployed twice in the UK. This compares with 48 times in the same early years of FOI in Australia. This seems to point to a perverse incentive-unlike a nuclear weapon or an EU veto – the more it is used the less attention it gets.

Town Hall Transparency?

Our new report on FOI and local government concludes that the FOI Act has made councils more open and transparent. Each year more and more questions have been asked with request numbers rising from around 60,000 a year in 2005 to nearly 200,000 in 2010.

Underneath the media headlines about senior officials’ salaries,  investments and the cost of dying, FOI is being used more quietly, day-to-day, by the public to find out about things that matter to them; allotments, parking, speed bumps etc., as you can see in these records of requests  here and  here (this one also lists requesters by type). Businesses are using it to keep one step ahead of the competition and national and local pressure groups are making FOI requests on all sorts of topics from zoo licences to libraries. It may even have helped to uncover a murder.

Some councils are more open and more at ease with FOI than others. A few have resisted and played games. Many are concerned it’s being ‘abused’ by businesses and journalists. Most of all officials are worried about how they will cope with rising request numbers with fewer resources.

Since January 2011 councils have published all their spending over £500 on their websites (see here). The government hopes this will give transparency an extra push and also motivate ‘armchair auditors’ to check where and how councils are spending and misspending our money. The response has been mixed. Some councils have had no interest in their data, while elsewhere local newspapers have exposed controversial spending on string quartets or libraries , as have a  few national newspapers . One official said the benefits are internal, as it has allowed councillors to understand their own budgets.

FOI and Open Data are working more and more closely with new online innovations, that allow data to be ‘mashed’ and sifted, and hyper local sites that serve as a platform for residents to talk about local issues. However, it remains to be seen if new technology and further local government reform helps or FOI or if it will be undermined by dwindling resources’.

£500 Online Publication: What’s Going On?

David Cameron has promised a ‘transparency revolution’ based upon Open Data and online publication. As part of this, since January 2011 all local authorities in England (with one exception) have begun publishing online details of all their spending over £500. What is this supposed to achieve? According to the government, many things. Publishing online will make local authorities more transparent, less wasteful and will help the public understand where its money goes. It will also give developers the opportunity to create new applications. Most of all, it will give power back to the people, enabling an army of armchair auditors to hold government to account.

What do we know? One survey of 168 local authorities found that 17 per cent felt the online publication had been ‘very successful’, 13 per cent felt it had been ‘somewhat’ successful, 17 per cent ‘good in theory but not in practice’ and 23 per cent did not know. So what of the benefits? 38 per cent felt it had increased transparency, 25 per cent accountability and 13 per cent trust. Only 3 per cent felt it increased participation or social and commercial value.

Our own study found similar variation. Some local authorities had experienced very little interest in the new data with one recording ‘180 visits and one FOI request’ in 3 months and another experiencing local media interest in ‘electricity and phone bills’ which had quickly ‘settled down’. Elsewhere there were higher levels of interest in the data, particularly from the local press and some ‘small use by trade unions’. Local media stories have highlighted odd spending on training, consultants and crematoria. Others pointed to internal benefits, with officials and politicians now able to better understand their own authority’s spending.

There has been, as of yet, little sign of the army of armchair auditors. In June Eric Pickles praised a group of bloggers who held to account the flagship Conservative authority over its contractual procedures. Other sites have sprung up with names such as ‘armchairs auditor’, and ‘reluctant armchair auditor’ but the latter wrote in the Guardian that the data was ‘not yet’ of good enough quality. There are difficulties around finding out who is accountable and knowing what mechanisms to use, whether to pass information to the media or the authority itself.

It has led to a growing number of new sites that help quickly and simply analyse the spending data, such as ‘Spotlight on Spend’ and ‘Openly Local’. The latter site is an open source site containing 168 local authorities’ spending data, attracting around a 1000 unique visitors a day, including businesses and local politicians. These sites allow you to quickly examine and compare authorities by payments, providers and make sit easy to benchmark. Many feel the future lies here.

It’s still very early days to say if it has succeeded or failed. The new online publication will make government more transparent and the parallel publication of salaries and contracts. It is unlikely to lead to very much ‘armchair auditing’ from the public, as most people won’t have the time or the patience to scroll through long excel sheets, but NGOs and journalists will find it useful. The area to watch will be the ‘local’ initiatives and hyper local sites. It is here, on their doorsteps, where the new information may make a real difference.

This article appeared in the Local Government Chronicle

Thou Shalt Not Chill: Cabinet Manual Seeks a Clear Audit trail

The new cabinet manual published today goes to some lengths to emphasise the need to have a clear chain of record-keeping around decisions and prevent a ‘chilling effect’.

It gives a very wide definition of information

‘Official information is information created and commissioned in the course of official government business. It includes information created or received by ministers in a ministerial capacity. Official information can be in any format, and includes correspondence and memoranda, guidance, emails, datasets and databases, websites, official blogs and wikis, and film and sound recordings. Other formats that emerge will also be covered.’

 It then goes on to describe what information needs to be kept in relation to decisions:

 ‘The role of ministers’ private offices

11.4 Guidance issued by the Cabinet Office and The National Archives1 emphasises the need for private offices to record ministerial decisions on any correspondence or submissions to ministers or officials, including special advisers, and outside interest groups, private sector organisations and MPs. This would include any meetings, telephone conversations and communications via the internet where decisions are taken that relate to government business, so that there is a clear audit trail.

11.5 All papers and electronic information relating to a minister’s personal, party or constituency affairs remain the minister’s personal responsibility during their time in office and once they have left office or moved to another ministerial appointment. Private Office staff and special advisers should manage and maintain personal, party and constituency papers and information separately from departmental material and Cabinet and Cabinet committee documents.2 Data security of constituency material is the responsibility of the minister in their capacity as an MP. Responsibility for party information is a matter for the relevant political party to determine.’

It would be interesting to know if this is preventative, a subtle telling off for certain ministers who may be trying to hide communications or whether they know something about the extent of the chilling effect that we don’t.

To Be Or Not To Be: Will FOI be Extended?

Should the Freedom of Information Act (FOI) be extended to include private bodies doing public work? The Public Accounts Committee (PAC) argued it should in a recent report on PFI projects:

Transparency on the full costs and benefits of PFI projects to both the public and private sectors has been obscured… commercial confidentiality should not restrict the ability of the public, Parliament and decision makers to access information. Freedom of information should be extended to private companies providing public services.

This is not the first time the PAC has called for private companies to be subject to FOI. In July it recommended that Network Rail, currently outside of FOI, should be covered. Nor are they alone. The Local 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: Public rights of access to information should not disappear as a result of increasingly porous boundaries between public and private bodies delivering services.’

Extending coverage to private companies running public services, such as rail or road providers, is on the face of it logical and popular.  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. Yet, willing or not, FOI only reaches so far and large ‘gaps’ in transparency appear with, for example, public prisons covered by FOI laws but private prisons not. Big society reforms and more contracting out of public services raises the possibility that these gaps will widen further.

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.

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 have so few governments tried to extend coverage? As theUKand 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.

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 theUK– 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’

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 allow the public to find out more about, for example, councils and their suppliers.

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?

Sitting on a Sofa with a Politician or Two: FOI and Lobbying

The resignation of Defence Secretary Liam Fox last Friday has revealed a network of ties between lobbyists and politicians. The Prime Minister has now pledged to create a register of lobbyists. According to the Guardian the links are extensive. An FOI ruling in 2008 seem to advance the cause of transparency and the site whoslobbying already tracks this information, though it has recently complained about lack of data.

Yet the problem is not just ‘formal’ meetings, as the Guardian article points out, but the private meetings and other informal ways of accessing politicians, such as use of Parliamentary passes. In 2007 FOI was used to reveal arms industry lobbyists apparently being given access to Parliament by peers. This may not yet be the end of the struggle over passes, as this recent request shows. Minister themsleves seem to be lobbying as well as being lobbied, according to this FOI relating to William Hague and unpaid tax bills for oil companies in Uganda, and charities close to Prince Charles have also been involved in access. The big question is whether more of the formal lobbying will become informal when the register is published.

Everybody’s Got Something to Hide? (Part 2)

The Independent has a story today about concerns, or what it describes as ‘panic’, across Whitehall as Ministers are informed that they may have to open up private email. There are even suggestions of a ‘trawl’ by officials to find any emails containing discussion of government business.

The ICO has now begun an investigation at the Department for Education amid allegations that one of Gove’s advisors explicitly informed other officials that he would only answer emails to his gmail account, a rather wonderful example of a chilling effect.

Politicians in the UK are not the only ones to suffer. Obama had a struggle over holding onto his Blackberry in office, in part over concerns about whether it was caught under the Presidential Records Act (brought in after Nixon’s dogged resistance over releasing his expletive laden tapes). Emails can be a rich source for FOI, as this story about Australian Prime Minister Gillard apparently berating Foreign Minister Kevin Rudd over his expenses shows.   On a related technological development, the ICO recently announced that Tweets now count as legitimate FOI requests.

Everybody’s Got Something to Hide? Email Travail For the Education Secretary

Michael Gove, who doesn’t always have a great deal of luck with FOI, was today accused of using a private email for government business by the Financial Times. If he did he is not the first. A similar allegation was raised recently in Canada (thanks here to Al Roberts). Sarah Palin also used private email when Governor of Alaska, though it was later ruled legal.

This issue seems to raise two points. The first is how exactly this complies or not with FOI, an issue FOI Man discusses in depth as does David Higgerson. The difficulty is that while it may not be strictly against the legislation it is certainly against the spirit and carries the taint of appearing to have ‘something to hide’.

The second is how exactly this may affect how decisions are made and the record of a decision that exists in the future. Is it the electronic equivalent of the post it note? Even if it is less easily disposed of, could it lead to parallel decision-making chains with one ‘hidden’ communication channel only accessible through a Watergate style wrangle over access? A final thought is how common this is. Was Michael Gove unwise to have (allegedly) done this or did he just commit the sin of getting caught?

Up In Smoke? University of Stirling vs. Philip Morris

There has been more controversy over access to research information through FOI today. The University of  Stirling has protested against the tobacco giant Philip Morris making FOI requests for details about its research, a large scale study into the effects of smoking involving 6,000 people between the age of 13 and 24. The Scottish Information Commissioner did not uphold the appeal by the University (see the decisions here and here). The information has not yet been released.

This is the latest example of FOI being used to access ongoing research data following on from the UEA Climate gate scandal. This was recently discussed at a series of workshops across the UK.

The concern is that, as with the data on climate change, exposing certain parts of the study or having access to the raw data before the findings are analysed can be used by those with an agenda to misrepresent or undermine research. One of the academics has claimed the release would have enormous implications for academic freedom and has raised concerns over protecting the privacy of those involved. Interestingly, unlike FOI in the UK, the Scottish FOI Act contains an exemption for research that is ongoing, though it appears it has never been used.