FOI and Accountability?

Does freedom of Information increase accountability? Officials think that it does not, according to a survey by the Ministry of Justice recently mentioned in the Guardian.  The key word here is think. They think it doesn’t because they don’t directly see its effects.

Officials don’t notice FOI because often it works with other accountability mechanisms, especially the  media or NGOs (see Voices for Libraries on going campaign).  FOI rarely hunts alone and its use is lost amid lots of other questions, communications and research. A long running parliamentary investigation into extraordinary rendition , for example, used FOI in the UK and the US alongside Parliamentary Questions to show that a little more was known about the mysterious flights than was admitted at the time.

Officials also don’t notice it because it is not always high profile or immediate. For every MPs’ expenses  scandal or list of visitors to Chequers there is the patient, often slow, digging up and fitting together of pieces of a jigsaw. Chris Ames has spent many years exposing bit-by-bit the inner workings of government as it prepared for the War in Iraq. His work has raised many questions about the defences made by the politicians involved.  At local level there are many groups using it to pursue all sorts of important issues that may escape officials’ radars, allotments being a good example.

FOI does make government more accountability but not everyone sees it.  Sometimes it is not the kind of accountability politicians or officials want. Often it is for unexpected things. But that doesn’t mean it isn’t happening.

Why won’t expenses go away?

The point of transparency, according to the theorists, is two-fold:  You’ll be judged for what’s exposed and – only when effective sanctions or accountability mechanisms exist for bad behaviour – you won’t want to continue to act badly. Sounds easy, right?

The problem, in the real world at least, is the definitions in the concept above. Who constitutes the ‘judge’ of what’s exposed? Who decides what sanctions are appropriate? What’s riskier for an actor – attempting to hide behaviour or taking the punishment a ’judge’ hands out?

Looking at some news stories over the last few weeks, the FOI ‘expenses’ fad is more than a fad after all  – FOI requests for expenses continue to be made, and in tandem with proactive publication, hundreds of column inches  continue to be filled by stories about expenses.

And the reason this is still happening is that it continues to be unclear (and therefore newsworthy) about what any expenses system is ‘supposed’ to look like. The goal posts keep shifting – what was acceptable before the banking (or indeed the MPs’ expenses crises) isn’t necessarily ok now, though of course, it could one day be again. Where the real accountability lies is often not with the headlines in the media, but by the structures already in place in the system. Transparency’s two benefits are by no means a given.

In the context of increasing student fees and a decrease in the teaching budget, the expenses of university vice-chancellors this week, investigated by the Independent on Sunday, makes the perfect story. The expenses “cover worldwide travel and lavish entertaining” according to the paper, while the universities argue that “the expenses were largely run up on official business” and they insisted they had “robust mechanisms to weed out frivolous claims.”

Comments on the expenses by union and student leaders did not call for the resignation of any vice-chancellors. Usman Ali, vice president of the National Union of Students, argued “Universities must listen to students’ unions and make their expenses and pay structures transparent to stop abuses.” But without stronger sanctions, and keeping in mind the theory above, what can listening and more transparency do to actually instigate the kind of behaviour change students and unions want? In reality, the buck stops for many vice chancellors at their respective university councils.

Universities argue their expenses regimes are fit for purpose and by being exposed they are acting responsibly. A Housing Association has taken it upon itself to begin publishing details of their expenses. Being threatened with FOI-inclusion by Minister Grant Shapps, they have embraced the push towards transparency and opened themselves up to the scrutiny of others.

Is that a safe move, PR-wise? Even when efficiencies are made overall, exposure of expenses doesn’t always inspire trust: the total claims made by MPs’ are down by a fifth this year, but that hasn’t stopped the Daily Mail focussing on first class travel. Context is everything: “[MPs’ expenses claims] highlight the extent to which the system cossets MPs from the crippling rises in the cost of living that are squeezing the incomes of ordinary families.” Ouch.

The issue remains a touchstone across the public sector: this week examples come from the police, the British Council, the BBC, former MPs like Tony Blair (and less recently, Thatcher,) and even popping up in the Leveson Inquiry.

The most interesting piece of expenses news this week however, might be a small survey by YouGov, carried out for Concur, a firm which specialises in expenses software. 18 per cent of respondents said they would exaggerate expenses claims if they believed they were otherwise underpaid. Who’s fit to judge now?

£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

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?

Shining a light or keeping us in the dark?

Letting the light shine out

When it comes to FOI and Parliament, a bit of both really, though more of the latter than you’d expect: that’s the conclusion from our report on the impact of FOI on Parliament, published today. (The two year study also looked at the use parliamentarians have made of the Act, covered in a previous blog post here).

Our main findings are:

  • The focus of FOI requests has always been on the House of Commons, and on MPs (much less so on the Lords)
  • Parliament has released much corporate material about itself through FOI, in contrast to assertions that it is a secretive organisation

Freedom of Information legislation was not originally intended to cover Parliament, but the Act’s greatest impact has been on its oldest institution.

No one expected some of the most important case law around FOI and personal data would come from Parliament, but it did. MPs thought Parliament was open, and it was (and is continuing to get more open). But they didn’t see the collective blind-spot that was the Additional Costs Allowance (expenses) system. The MPs expenses scandal is a classic case of FOI searching out secrecy while the rest of an organisation is open.

So can FOI achieve its democratic goals in an institution like Parliament? MPs divided into competing teams, where officials may be subordinated, where every move covered by an increasingly vociferous press, many decisions protected by Parliamentary Privilege?

We think yes, at least regarding FOI’s main goals of increasing transparency and accountability. While most requests have focussed on individuals of Parliament, both Houses have revealed ‘corporate’ information previously not public through FOI and have had this publicised via the media. Topics include CO2 emissions of its buildings, policies relating to pest control, the costs of construction of the Visitors Centre and the use of parliamentary facilities by outside organisations. Parliamentary Privilege has protected the things that should be protected, and not protected those things that shouldn’t.

FOI has prompted organisational change too: Since last year, MPs and peers have to be domiciled for tax purposes to remain in either House, and is the only way non-bishop peers have been able to leave the House of Lords (apart from death). This is because Lord Ashcroft’s non-dom tax arrangements were revealed through FOI. MPs can’t run up large tabs at parliamentary restaurants anymore, after an FOI request revealed some owed thousands for months.

Most officials and parliamentarians we spoke to (we interviewed 46 people for this project) agreed  that FOI has made Parliament more transparent and accountable albeit for matters that some consider minor or narrow. But the influence of the media means FOI’s other goals like increasing trust or public understanding are difficult to achieve, and may even be negatively impacted. We found many negative headlines when we sampled press stories about Parliament, even when Parliament had handed over information through FOI without fuss or delay.

But the Commons has learned a ‘bunker’ mentality towards FOI isn’t the way to go. The House of Commons Commission agreed last year to begin to publish its own papers and agendas proactively, reversing decades of secrecy. The lessons from the expenses scandal are being learned, and we know more about Parliament and its people today than ever before, in part because of FOI. Its been another step in the openness process Parliament has gone through since the first publication of Hansard in the 19 century. What’s left to find out…?

Who Is Interested in the EU?

One of the things we know very little about is the requester. Who are they? What do they want? And what do they do with the information? The general pattern seems to be that the public is the biggest user, followed by small groups of journalists and activists. At certain levels, and in certain countries, particularly the USA and Canada, business is also a big requester.

A recent report from the EU commission on use of its own access legislation has shown some interesting variation against this general pattern (though it needs to be remembered that total requests in 2010 were only 6127 compared with 5055 in 2009).

The biggest users of EU access legislation are academics (23%), followed by other public authorities (13%) and lawyers (10%). It’s quite possible that the deadlines on returning the information mean that only researchers with time to spare (e.g. academics, lawyers) use it, rather than those with very strict deadlines such as journalists (3%). Other EU institutions make up 8 % of requesters-is that indicative of information sharing problems?

Another interesting question, given the size of the EU, is which countries they are coming from. Belgium is top, accounting for 17 % of all requests, Germany is second on 16 %,France on 9 % and Italy on 8 %. The UK is fifth on 7 %. Many of the newer accession countries, with the exception of the Czech Republic and Poland, make much less use of it.

So what is being asked for? FOI often targets particular areas. Traditionally these are either affairs of importance to a particular person (so for example, Veteran’s Affairs or Social Security are big topics) or areas of general interest such as finance. The Secretariat General is the primary focus of 11% of all requests with Competition second on 9 %. Justice is high up, third place on 8%; as is often the case, but both finance and trade (2%) and agriculture (3%) seem remarkably low on the list.

So why this difference from normal patterns? It may be that EU documents are of interest to particular groups. It may also be simply matter of publicity-few know it exists. There are also clearly difficulties over access and responsiveness, something Access Info Europe was very critical of earlier this year. Things may get more interesting with the arrival of the new website that helps people to make requests ‘Ask the EU’ later this year.

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.

Open Data Consultation Launched

The government has launched a consultation today on Open Data and how to move forward the transparency agenda by encouraging ‘push’ (pro-active release) and ‘pull’ (stronger rights for access to data). The consultation covers a wide range of areas

  • Proactive: how to ensure ICTs systems can publish data easily and make pro-active publication a ‘default’ setting
  • Costs: possibly raising the cost ceiling for FOI requests (a ceiling of £1000, instead of £600 is suggested)
  • Changing mechanisms: giving the ICO more power, creating a new right to appeal for datasets and limiting internal review times

The paper also contains two interesting annexes on evidence of impact and draft principles.

For a brief summary see here and a discussion thread here. This appears to form part of a further push of the transparency agenda, alongside other initiatives. David Cameron recently said the reforms had now moved to ‘phase two’ from publishing core data to publishing more about public services and how they perform.

‘If our transparency focus over the past 12 months has been to open up core central government data in areas such as spending, our priority over the next year will be to release new data on the performance of public services. This revolution in government transparency will make it easier than ever before for the public to make informed choices between providers and hold government to account for the performance of key public services’.

Hillsborough papers may not wait for 20-year rule

The 1989 Hillsborough disaster

Starting 2013, we will have to wait less for the publication of secret government documents, but the July order to release secret Cabinet conversations on the 1989 Hillsborough disaster already mentions the new policy.

Starting in January 2013, two years’ worth of classified files will be published each year. This means that by 2023, the records will be only 20 years behind the date of the event rather than 30. The files regarding the human crush at a Sheffield football stadium, in which 96 Liverpool fans died, would have already be published sooner than previously expected – 2016.

But a July 20 Information Commissioner ruling has pegged the date at August 24, 2011, instead – much to the chagrin of the Cabinet Office, which has been contesting the release of files for more than two years.

Commissioner Christopher Graham noted the reduced release time for classified archives when ordering the release. The new rules, however, have not yet gone into effect.

“Although this is not directly relevant here as … the Act continues to define an historical record as 30 or more years old… there is a diminishing case for withholding information over 20 years old,” he said.

The ICO decision concerned a freedom of information request sent by the BBC, asking for correspondence and briefings between Thatcher and her cabinet and the record of a Cabinet meeting dated April 20, 1989, five days after the disaster in Sheffield.

The documents are controversial. Families of the deceased accused Thatcher’s government of covering up the police’s involvement in the crush.

A  report showed the South Yorkshire authorities had neglected security procedures at the stadium, but family members of the deceased and the media pushed for more information. They wanted to know what Margaret Thatcher had to say.

“Twenty-two years ago, when Mrs. Thatcher came to Liverpool Cathedral, my husband asked her face-to-face if there was going to be a cover-up, and she said: ‘Mr Joynes, there will be no cover-up.’ But there has been a cover-up which has persisted ever since,” Pat Joynes, who lost her son Nicholas in the tragedy told the BBC.

The BBC request had been refused by the Cabinet Office, and the case was taken to the ICO.

The Cabinet’s main arguments are that the documents fall within the Act’s exemptions on ministerial communications (Article 35 of the FOI Act) and that releasing them would undermine the convention of collective Cabinet responsibility, whereby every cabinet member is responsible for the final policy decision, even if they disagreed with it in private discussions.

“The public authority has argued that disclosure would impact negatively upon the freedom with which Ministers believe they can engage in free and frank discussions with colleagues and upon the maintenance of collective Cabinet responsibility,” the decision stated.

The principle of collective responsibility argues that if ministers don’t have the freedom to discuss matters privately before issuing a joint statement – i.e. their opinions during the discussions are scrutinised before the fact – this will produce a “chilling effect” and damage policy-making.

Though Commissioner agreed the information fit within the parameters of the exemption – which relates to the formulation or development of government policy, Ministerial communications, and the operation of any Ministerial private office – he concluded the exemption did not withstand the test of time.

“The age of the information has a wider significance in that it is necessary to consider how likely the harmful impacts of disclosure predicted by the public authority are given the age of this information. Having considered the information and the wider context this argument would not be sustainable given the passage of time and multiple changes in government since this information was recorded,” he said.

The Cabinet Office has 28 days from the decision to lodge an appeal with the courts, or comply with the order in 35 days.

A veto is also possible, but it has only been used twice – in February 2009 over the cabinet minutes of the 2003 Iraq war, and in December 2009 over the 1997 devolution of Scotland.

Information Commissioner Christopher Graham, who had been appointed in June 2009 said he was concerned that the veto was being used too lightly.

The veto has not been used since 2009, and the Cabinet Office has not given any indication it plans to use it again. Still, the 2009 cases have some similarities to Thatcher’s Hillsborough papers: the three involve cabinet minutes and arguments against disclosure include collective Cabinet responsibility.

You can see a summary of the events and links to related documents in the Constitution Unit’s archive of Monthly Updates for 2009.