Tag Archive for Lord McNally

Public Data Vs FOI?

FOI Man welcomes Government moves to improve transparency across the public sector. But a more pro-active approach to publication of data mustn’t be used as justification for (or a smokescreen for) weakening the right to make requests for information through the Freedom of Information Act.

The Government’s Transparency Board is, as they say,  just what it says on the tin. It is a Board that champions transparency across the public sector, chaired by Francis Maude. Its membership is impressive, including in its number Sir Tim Berners-Lee, inventor of the World Wide Web, and Professor Nigel Shadbolt, a champion of open data. And as you’d expect from such an institution, its minutes are published online.

The minutes of the latest meeting of 2 March are already available to anyone who’s interested. They include a discussion of the Freedom of Information Act and its relation to the transparency agenda. The thing that strikes me about the report of this discussion is that a presentation on FOI very quickly gets usurped by the general discussion about open data, despite the fact that the rest of the meeting covers much the same ground. This may be just the way its been recorded, and it may not be anything to worry about, but the sense to me is that FOI isn’t seen as a significant part of this process. There seems to be a belief that wider transparency is almost a ‘cure’ for rising FOI requests (which I’m sceptical of, by the way). To quote the minutes:

“It was noted that a move towards proactive publication, rather than just a response to requests for data, was firmly in line with the aims of the Transparency Board.”

Obviously, the Government is keen to press its own agenda, and doesn’t want to work within the straightjacket of the previous Government’s law. Though in truth, there seems little in their agenda that FOI didn’t already permit – it’s a difference of emphasis rather than real substance. Which isn’t to say that an emphasis on more transparency isn’t welcome.

But I think that those who support FOI as a powerful tool for opening up Government ought to be watching developments carefully. I’m still nervous that the Government at some point is going to suggest that as they’re disclosing all this data, there’s a reduced need for the general right of access (the right to make FOI requests). That they use this agenda to bring in restrictions on that right, such as a prohibitive fees regime. This won’t happen until after the post-legislative scrutiny process has been completed of course, but we need to keep an eye on where that scrutiny is led.

The general right of access is very important. As I’ve said before, it means that you choose what information you want (subject to statutory exemptions approved by Parliament). Increased pro-active disclosure is valuable, of course, but it means that the public body, or Government, chooses what it will allow you to have access to. True transparency requires both to be truly effective, not an either/or.

So it should be Public Data + FOI.

FOI Man at Large: the DPO Conference

Earlier this week I was lucky enough to attend the Information Commissioner’s Data Protection Officers Conference in Manchester. Don’t be misled by the name though – there was plenty to entertain us FOI obsessives.

From the keynote speech from Lord McNally, the Lib Dem Minister of State in the Ministry of Justice, through to the Commissioner’s closing remarks, this was a conference that aimed to fully integrate the Commissioner’s Data Protection and FOI duties. So what was there that caught the eye on FOI?

It was clear from Lord McNally that support – and opposition – for FOI and openness issues is cross-party within the Coalition. He spoke of his surprise at finding himself on the same side as Francis Maude and Eric Pickles in meetings.

In questions, it became clear however that there was some dispute within Government over whether FOI should be extended to the private sector when it provides public services. Some in Government are sceptical as they argue that this would deter companies from bidding for Government contracts. From the tone of the Minister’s response it appeared that there is some fierce debate going on in Government on this very issue. Interestingly, Graham Smith of the ICO later argued that the private sector was effectively covered under the existing Act, as FOI continues to cover services provided on behalf of public bodies.

Lord McNally stated that the changes to the Information Commissioner’s role proposed in the Protection of Freedoms Bill were designed to strengthen the independence of the Commissioner. The Commissioner himself welcomed them later in the day, though he did suggest that if the Commissioner is only to serve one term, that term ought to be longer.

The Orders bringing ACPO and UCAS under FOI will be laid at some point from October this year. My guess, based on nothing in particular (other than neatness), would be that the aim would be for the order to come into force on 1 January 2012, but perhaps it will take effect instantly. I know that ACPO have some excellent people helping them prepare for this, and I’m sure it’s the same picture at UCAS.

Lord McNally also spoke about the changes to the 30 year rule for Public Records. He explained that the long lead in time is because the move to a 20 year rule is an expensive exercise.

Post-legislative scrutiny of FOI is seen by the Minister as an important step after 6 years of the Act. The fact that issues will be aired in a public forum will help in developing proposals to amend the Act further.

We also heard from Katie Davis of the Cabinet Office. It was clear from Katie’s presentation, as from the Minister’s speech, that the Government really does attach great importance to opening up public data. The Government’s aim is to be the most open and accountable government in the world. She explained that the Government’s Transparency Board, chaired by Francis Maude, was challenging assumptions across Whitehall. Its membership is certainly impressive – as well as ministers, it includes luminaries such as Professor Nigel Shadbolt (whose Southampton University home launched their open data repository this week) and Sir Tim Berners-Lee (inventor of a little thing called the world wide web). It was good in questions to hear her comment that Local Government is leading the way on transparency.

A question mark still remains over the impact of open data initiatives on the general right of access under FOI. Senior figures within the Information Commissioner’s Office remain as sceptical as many of us FOI Officers as to whether bulk disclosures will lead to reduced numbers of FOI requests.

Graham Smith, Director of FOI at the ICO, struck a cautious note. He commented that FOI was certainly embedded in the public sector; everyone knows they have to comply, but whether they want to is very much another matter. There is a culture of compliance rather than openness at present, in his view. The Government’s transparency agenda is very much welcomed by the ICO. Graham spoke of a lack of political direction on openness in the past which has contributed to lack of progress in changing the culture.

An interesting point raised by Graham was the fact that our FOI legislation was very much designed with paper record-keeping systems in mind. Now that much of the work of Government is carried out electronically, does that affect the effectiveness of the Act? Finally, he observed that the private sector appeared to be ‘waking up’ to FOI. Not just in terms of using it, but in realising the implications of FOI for their dealings with the public sector.

Later in the day, there was the message that public sector bodies shouldn’t be afraid to apply the provisions for vexatious and repetitious requests where necessary. Similarly aggregation of requests when estimating costs. The ICO will be supportive when looking at these cases where it is clear that requesters are making significant numbers of requests or are harassing authorities. It was clear that this attitude was coloured in part by the ICO’s own experience with some requesters! Public bodies should also be careful to protect personal details of their employees – in many cases, these details will still be protected by the Data Protection Act and section 40 ought to be utilised.

The Commissioner raised a laugh at the end of the day when, following his best impression of the former Prime Minister expressing his regret over FOI, he exclaimed, “Tony, it wasn’t about you!”. He reminded FOI Officers that we should be on the side of Dr Samuel Johnson – a famous exponent of openness – and not that of Cardinal Richelieu, who believed that secrecy was the first requirement of Government.

How Pro-FOI is the Coalition Government?

This week, we’ve heard about Conservative proposals to extend FOI. But apparently, that’s not all. The Lib Dem Minister responsible for FOI has indicated that the extensions may go even further:

“what the coalition has committed itself to is an examination of how the Freedom of Information Act has worked, where it could be extended within its present powers and where it might be extended by primary legislation.” (Source, Campaign for FOI blog)

We’ve seen in recent months several announcements about openness. So is this Government more open than the last? And how long can it last? Yesterday I received a message via Twitter from one of my readers directing me to Sir Humphrey’s thoughts on the matter.

Seriously though, some observations. I think we need to give the new government a chance to show its hand on FOI and openness. There is a difference between choosing to publish all expenditure over £500 say, and having to answer requests made under the general right of access under FOI. It sounds very open to publish information pro-actively (and it is certainly something to be encouraged), but the public body still retains some control. It knows what information will be published and can design its processes and decisions around that.

The important thing about making a Freedom of Information request is that you, the citizen, choose what to ask about. Politicians and their advisors who may happily embrace the concept of open government, as long as they can choose what to be open about, go into the biggest flaps when confronted by an FOI request, exactly because they might have to disclose something that they’d rather not. I know – I’ve seen this happen. So I’ll be interested to see not just how much information the new Government is prepared to make freely available, but how readily they respond to individual requests under FOI. The experience of the Other Taxpayers’ Alliance is not encouraging.

There is, of course, a problem with extending FOI. It’s one of the great myths of FOI that it doesn’t cost anything. The Labour Government countered Conservative arguments (during the passing of the Bill through Parliament) that FOI would be an expensive burden by arguing that public authorities would be expected to deal with FOI requests out of their existing resources. That clearly hasn’t proved to be true, but resources for dealing with FOI requests are limited. Heather Brooke used FOI to compare spending on FOI with spending on public relations by police forces in the UK, and not surprisingly found that there were rather fewer FOI Officers in the UK than Press and Marketing Officers. It’s interesting that the very people who call loudest for cuts to public services are often the very same people that demand their rights (and extensions to their rights) to obtain information from those services.

So, like every public servant in the country, I say to the Government, put your money where your mouth is. If you want more openness, support your FOI Officers. And if you think that by pro-actively publishing information you will cut down on FOI requests, I suggest you take a look at this blog entry about the OpenlyLocal website. One-click FOI requests. I suspect I’ll be coming back to that one…

Personally, I’m a supporter of openness and certainly have no desire to see FOI weakened in any way. But any extension has got to recognise the practicalities – if you’re going to ask public authorities to do more, you can’t then take away resources, and in fact you may have to add to them. You only have to look at the Information Commissioner’s backlog of complaints over the last few years to see how meaningless rights are without the resources in place to deliver and enforce them.

Thanks for your interest this week – well over a thousand hits in week one. Do feel free to comment via the blog or twitter (@foimanuk) on any of the issues I raise here.