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?

A Bang or a Whimper? £500 Publication

The government’s transparency revolution continues with the recent announcement of a consultation on next steps. One of its flagship policies has been the publication of all local authority spending over £500 which will allow us all to become ‘armchair auditors’ to hold our local authorities to account and hunt out waste. So how it is working?

Up until now, the effect seems to be uneven. Some authorities we have spoken to have had little interest from anyone. They think the public are simply not interested in the raw data. Others have reported an initial spike in interest from the local media which then dropped off when ‘nothing interesting’ was revealed.

Local authorities elsewhere have had much heaver use by the opposition, local journalists and, increasingly, trade unions. The regional media have highlighted odd spending, from string quartets in Kent to a particularly large hot pot in Manchester. Other officials feel the benefits are internal, as members and officials better understand their own budgets, previously a mystery to everyone except accountants. It doesn’t appear to have led to more FOI requests as some officers feared.

There are, as the government admitted in its new consultation, a number of problems. Poor data quality and inconsistency makes it difficult for the data to be used or re-used. Some authorities IT systems simply aren’t designed to put out information in the way the government want. Officials are also worried that, in tough times, the low level of the £500 threshold will feed existing prejudices that local government is ‘wasteful’. At least, some have argued, the audit regulations give plenty of context rather than isolated facts.

There has been little sign yet of the ‘army of armchair auditors’ the government hopes will comb through the data. We would expect to see lots of newspaper stories of residents or groups taking on their authorities and holding their leaders to account with this information. A few recently made a splash in Barnett. Mr Pickles himself has carried the war to the enemy, using FOI against the one council that has refused to publish its spending. There are a few websites with names such as ‘armchair auditor’ or ‘reluctant armchair auditor’, but they have not yet spread and the reluctant auditor complained in the Guardian that the data lacked the quality and context to be useful. Overall, we haven’t yet seen a groundswell of ‘active’ citizens questioning and probing their local authorities.

So will it improve? The government is determined to push on and create a new right to data, make information ‘open by default’ and encourage new innovation. They have recognised some of the difficulties and suggested that all new IT systems be designed for ease of publication, and committed to creating a new set of ‘standards’ to ensure consistency and a new right to data.

One key area to keep an eye on are the new sites, such as Openly Local, which allow information to be compared and analysed easily and quickly in all sorts of ways. The rapidly growing number of hyper local sites may also start using the data. It may be here, following the example of the local’ and ‘street-level’ experiments in the US, that some of the really interesting number crunching will happen.

This is a longer version of an article published in the Local Government Chronicle

Town Hall Tango: what’s been happening in local government

One of the things we found out about FOI is that it never settles down. Although it becomes part and parcel of operations it always has the potential to highlight new issues or kick up a fuss-it can liberate, muck-rake or simply cause a headache. Just to show you, I wanted to look at some of the interesting developments around our town and city halls over the past few weeks.

There has been some old fashioned digging using FOI that sheds some new light on topical events and liberates all sorts of information. One activist has opened up councils investment of pension funds in the tobacco industry. Others have highlighted authorities’ lack of defence against cyber intrusion  and lack of registered managers at care homes.

There has been a nice symmetry of ‘political’ requests involving unions. The GMB trade union used FOI to find out about how many staff are choosing to opt out of pensions. The Conservatives, at the same time, have been busy calculating how much tax payers have spent ‘keeping’ Union representatives in local authorities.  We can expect to see many more of these.

It isn’t just the subjects that FOI exposes. FOI and openness can itself cause controversy and headaches for politicians. In Liverpool there was alleged manipulation of requests to a journalist. At Kirklees council the ongoing controversy around a council leader allegedly interfering in responses is now subject of an internal investigation. Birmingham council has decided to that its first debate on the riots will be held in secret to avoid ‘grandstanding’. One disgruntled councillor in Scotland linked FOI to phone hacking, expressing the concern that the lack of illegal methods of accessing information will lead to more requests. The Computer weekly has alleged that a computer company has ‘gagged’ Bristol City council and refused to allow it to publish contact details.

And finally, is this the sound of chickens coming home to roost? One of the hopes for the new publication of local government spending is that it will lead to an arm of armchair auditors (though some have their doubts). Eric Pickles publicly praised one group of local activists, despite the fact it was a flagship Tory council that was being ‘audited’ by bloggers including the wonderfully named Mrs Angry.

FOI wakes up the dead

Zombies in Leicester

It started with a simple question to a local council. A few paragraphs to the bureaucrats. It was a strange question, surely, but what happened next came straight out of a sci-fi movie.

Hundreds of zombies came to the streets. Their faces wan with foundation powder, dark circles hinging under their eyes, induced by eye-shadow. Red stage make-up dripping like blood from their cheek bones.

They were not there to eat people’s brains like regular zombies do. These living-dead had arrived to evaluate Leicester city’s contingency plans.

What brought them out on the streets was a Freedom of Information request sent to Leicester City Council by “a concerned citizen,” also known as Robert Ainsley, and identified by The Leicester Mercury  as 26-year-old politics graduate James Dixon.

“Can you please let us know what provisions you have in place in the event of a zombie invasion?” he wrote. “Having watched several films it is clear that preparation for such an event is poor and one that councils throughout the kingdom must prepare for.”

It was a joke, not the delusions of a gadfly, according to The Leicester Mercury, and the media ruckus that ensued was enough to wake people from their eternal rest.

But it really fair for the civil servants – legally binded to respond to non-vexatious FOI requests – who are now scratching their brains, trying to respond to this strange question? They probably weren’t prepared for the event of an FOI request on a zombie attack.

And how does it affect the FOI Act itself?

One one hand, it could serve to get more people acquainted with its existence who may start asking responsible questions.

In 2008, 86% of the UK population knew they had the legal right to access government information, according to the Information Commissioner’s Office. This may be the reason why the number of FOI requests to local authorities rose from 60,000 to 80,000 between 2005 and 2007, according to the Constitution Unit’s research.

On the other hand, the zombie request may also start a trend in which citizens ask their council questions like whether they are planning to build an airport for flying saucers or a school for alien children, just because this one was so much fun.

According to FOI request tracker, nine new requests have been submitted on the topic of zombies.

But even that isn’t really a bad thing, as it may help oil the FOI machine. The Constitution Unit found that if the Act is not being used, the act can enter into stagnation: a minority of requests are answered and there are more delays.

The Leicester council hasn’t responded to Ainsley’s request yet, but Leicester’s head of information governance, Lynn Wyeth spoke to local radio and the BBC about the question.

She could have complained about the amount of work created by someone who just wanted to have a good laugh. Instead, she responded gracefully.

“To you it might seem frivolous and a waste of time… but to different people it actually means something,”she said. “Everybody has their own interests and their own reasons for asking these questions.”

Bristol City Council took it one step further and responded to a copycat FOI request with an actual, “top secret” zombie contingency plan. You can look at it here if you don’t believe me.

But maybe we are having too much fun. The FOI Man offers a more sobering perspective from the point of view of an official dealing with the Act on a regular basis.

Though he found it amusing at first, he soon came to the conclusion that it is a misguided use of FOI, and may make public officials who are already skeptical of the act, even more so.

My fear is that a combination of zombie requests, public sector spending cuts and lack of support for FOI at all levels in public authorities could seriously damage our right to access information in this country. As FOI Officers, we have a duty to promote FOI to our colleagues. But we can’t just keep repeating the same old answers in the hope that they will have a ‘road to Damascus’ conversion. The only way we can progress in instilling FOI as a culture in our organisations and our country is to listen to colleagues’ concerns.

FOI requests also cost a lot of money too £30.6 million pounds in total for the UK, according to the Constitution Unit’s calculations.

“We should acknowledge that some requests are a waste of resources (even if we can’t actually refuse them),” he wrote.

Having said all that, this may just be a one-off situation in which a “concerned citizen” decides to bring the FOI act to the fore for some good fun.

The media will soon forget about it (they may already have), but for some FOI enthusiasts it will remain an event in which a simple request for government documents turned into a lighthearted invasion of the living dead.

We Can Work It Out: Eric Pickles vs. Nottingham City Council

One of the problems with studying FOI is that it’s difficult to find out two very important things (1) who is making the FOI requests? (2) what do they want the information for?

However, in this rather amazing case we do. This rather splendid FOI request to Nottingham City Council, for details of their credit card spending, was asked by none other than the Local Government and Communities Minister Eric Pickles.

Now why is Eric Pickles interested in who has or has not been to Alton Towers or taken expensive flights? Nottingham City Council is the last local authority in England to not publish its spending data over £500 as Eric Pickles asked to by the end of January this year (see our post here). Indeed, Nottingham has stated on their website that they are not going to do it and explained why. So Eric Pickles has used FOI to expose what his fellow minister, Grant Shapps, called a ‘casual disregard for the public purse’.

But Nottingham is now fighting back against Pickles’ FOI foray. The deputy leader of the Council has now demanded a full apology claiming ‘flights were reimbursed by the private sector and the theme park trip was for deprived youngsters who had never had a holiday’.

I’ll update you on this fast moving story as it happens.