Risk of a Chill?

ImageThe Tribunal has now released details of its final decision over NHS Risk Registers, a risk assessment of controversial reforms to the NHS. The concerns centred on the potential damage release would have and whether it would have a chilling effect in reducing records kept, or in other ways restrict policy-making (see here for our views).

It has a classic defence of the chilling effect from Former Cabinet Secretary Gus O’Donnell on p.15:

‘Lord O’Donnell was very concerned that if there was routine disclosure of risk registers at the stage they were requested in this case that ultimately they would lose their effectiveness as a vital management tool for government and this would have a profound and damaging effect on the public interest in sound policy-making for the following principal reasons:

  • frankness and candour which are essential to the usefulness of risk registers would be fundamentally damaged;
  • the likelihood of the risks materialising would increase;
  • it would distract policy makers from their task at a crucial point in the process of formulation and development; and
  • there was a danger that disclosure of the risks in the form that they are set out in the risk registers could harm rather than assist public debate.’

The tribunal seemed less sure

We note that independent research carried out by the Constitution Unit at University College London has concluded that there is little evidence of FOIA leading to a chilling effect. Also in a previous case, OGC v IC EA/2006/2068 & 80 (“OGC”), where the Information Tribunal ordered the disclosure of Gateway Reviews apparently there has been no evidence of a chilling effect since their release.

It asked the opinion of Jon Healey, the (now opposition) MP making the FOI request , who was formerly a Minister

Mr Healey was the Minister responsible for the Office of Government Commerce at the time and said that there was no evidence that a chilling effect developed as a result of the release of the reviews even after he moved to The Treasury.

It ends with two statements that sum up the difficulties with the chilling effect

Lord O’Donnell said it was very difficult to prove one way or the other whether a chilling effect would take place.

Mr Healey expressed the view, that in his experience as a Minister, that the quality of submissions on policy had tended to improve since the above disclosures.

A further difficulty is the complications of the policy process. NHS reform has proved particularly complicated and controversial, as the Tribunal points out

From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.

The problem is that many FOI requests that touch on the policy process will be for matters that are already controversial or sensitive (the war In Iraq, devolution etc)-will there ever be case that is not in some way special?

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.

Departing O’Donnell: FOI damages discussions

Cabinet Secretary Sir Gus O’Donnell, set to step down after six years as the country’s top civil servant, told the Public Administration Select Committee the Freedom of Information Act has had a “very negative impact on the freedom of policy discussions.”  The Guardian reports that Sir Gus, echoing former PM Tony Blair,  said that “If asked to give advice, I’d say I can’t guarantee they [ministers] can say without fear or favour if they disagree with something, and that information will remain private. Because there could be an FoI request.”

Measuring the ‘chilling effect’ is difficult as anecdote is easier to come by than hard evidence, as a previous post of ours discusses.

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.

Palin’s e-mails: why so bland?

They waited nearly three years for boxes of what promised to be controversial and entertaining news fodder, straight from the fingertips of the U.S. vice-presidential candidate.

“Editors, bloggers and producers were doubtless rubbing their hands in glee on the expectation that the unfiltered thoughts of Sarah Palin as expressed in her email messages would be at least as idiotic as some of the unfiltered statements that come out of Sarah Palin’s mouth when she’s in front of a camera,” wrote L.A. Times’ Dan Turner.

What they got instead is a 24,000 pageload of mundane messages. No new revelations, not even material for a laugh.

The e-mails – or at least the ones the media has managed to sift through — are so boring it makes one wonder whether Sarah Palin, conscious that the messages could potentially be perused by the public, wrote them accordingly: free of gaffes, uninformed statements and controversy. (The Guardian has asked the public to help them sift through the e-mails)

She wouldn’t be the first politician to do so.

Some researchers claim the Freedom of Information Act – which the U.S. has had more than 40 years of getting used to –  has had a “chilling effect” on politicians in Sweden and Canada. Sanitising records or making important or controversial decisions in unrecorded oral discussions may be a logical result of politicians and staff being conscious of potential public scrutiny (a study by the Constitution Unit, showed UK politicians would rather keep good records than face any negative consequences, however.)

Palin is often ridiculed for lacking media saavy and being a teleprompter addict – but she may have just outsmarted us all.

The disclosure on Friday and Monday by the state of Alaska contains e-mails from her Yahoo account, as well as the state-related e-mail from her staff’s personal and work accounts.

Until now, the documents consist of correspondence with aides, nice words for then-presidential candidate Barack Obama,  e-mails showing annoyance about certain press coverage and a picture of Palin and her husband with an Elvis impersonator.

The e-mails spanning Palin’s first two years as governor were requested during the 2008 national elections, when she was Senator John McCain’s running mate, by citizens and news organisations such as the Associated Press. By now, her aspirations are one step further up the ladder as she toys with the prospect of being president.
Almost 2,300 pages were held back due to data protection issues, however.
“Who knows what juicy tidbits we might have found had the rest been available?” Turner wrote.
It may be that the good stuff was simply redacted or withheld. It may be that a golden nugget is hidden under the crease of a photocopied e-mail printout. Maybe Palin is simply not as interesting as people seem to  think — or she just knows how to avoid FOI.

Does Freedom of Information create a chilling effect?

One of the most persistent stories about FOI concerns the so-called ‘chilling effect’ which is, in fact, a bundle of things. Put simply, the chilling effect means officials and politicians no longer record decisions because they may get released under FOI. ‘Proper decisions’ are replaced with chats in the corridor, phone calls or post it notes.

It’s because of this possible consequence that Tony Blair described his support for FOI one of his biggest mistakes, and explained in an interview how he came to feel FOI was ‘not practical for government’ as  ‘if you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations…if those conversations then are put out in a published form…you are going to be very cautious.’

In all our research we have tried to look into this. We have concluded that it’s all a bit tough, with little sign at central government but some evidence of it happening in local government, particularly in sensitive situations.

But it is a very slippery concept. The first problem is that people won’t necessarily admit doing it. It can, of course, get you into trouble not having a record. It contravenes good practice and all sorts of codes of conduct and ethics. There also may be a bias in us barging into public bodies and asking if anything has changed: a ‘when did you stop beating your wife?’ style loaded question, as one official put it.

The second problem is how do we know its FOI’s fault? Some of the discussion around how minutes used to be features a wonderful ‘golden age’ where full and voluminous minutes, peppered with dry wit, were taken by classically educated officials, which may look something like this discussion of Indian independence.

But why records look how they do depends on all sorts of things. Resources can determine how or if minutes are taken. Fear of leaks too: one authority told us of how they had to stop using paper headed ‘confidential’ as it was ‘automatically’ leaked. Style can also have a lot to do with it. Mr Blair was himself a big fan of sofa government which, as numerous Iraq investigations have shown, is not conducive to a nice meaty audit trail.

One of the big difficulties is that the politics of a decision is often off paper. Even when it’s there it may be considerably less exciting than reality. The cabinet minutes of the so-called Westland crisis, where Michael Heseltine resigned and nearly sunk Thatcher, are a case in point. When the Cabinet minutes for Iraq are released they may be a little more ‘dog that didn’t bark’ than smoking gun.