Tag Archive for Open Government

My FOI Wishlist – Part I

FOI Man considers what he would change about the FOI Act – and struggles.

Recently I was asked what my FOI wishlist was. If I could make any change to FOI what would it be?

And I struggled. Despite ten years (in one way or another) working in this area, and almost a year of blogging about it, I found myself thrashing wildly about and failing to come up with something convincing or worthwhile. I wondered why that was.

After a week or so, I think I know why I found this question so difficult. The truth is that I’m not particularly convinced of the need for massive change to the FOI Act.

When I look back through the last year’s posts, it becomes clear to me what my view on this is. The problems that do exist with FOI are all to do with attitudes to the legislation and the openness agenda. Very few are to do with the legislation itself.

On the inside of the public sector, the problems as I see them are a continued cynicism from some at the highest level, and a failure to understand the benefits that greater openness will bring. On the outside, the issue is irresponsible use of FOI – the vexatious requesters, the people who see FOI as a handy method of beating up public officials that for whatever reason they despise, the ones who fire off huge numbers of requests without any consideration of the public money that will have to be spent. These attitudes are the biggest threat to FOI.

The legislation itself is not perfect – nothing is. But it pretty much does what it says on the tin, to borrow a phrase from commercial marketing. It has freed up public sector information to a massive degree within a very short period. It’s easy to focus on the things that aren’t quite right or could be better, and there’s nothing wrong with that. But we ought to remember that the majority of requests for information are fully met. When complaints are made to the Commissioner or the Tribunal, those bodies take a much more pro-openness approach than anyone dared hope before 2005. They have set a high bar and public bodies are, by and large, learning to reach it and sometimes even exceed it.

It’s worth remembering what an ambitious target the FOI Act set. Not only was it aiming to produce a massive culture change at the heart of Government, it was also asking thousands of other public bodies, right down to your local chemist, GP and school, to embrace that change. Bodies that most people hadn’t even realised WERE public bodies. The fact that most of the time people DO get information when they ask for it means that FOI is working.

The picture in the average public sector office right now is not what it was seven, or even five years, ago. Not only FOI Officers but also other public servants are casually familiar with the requirements of FOI. It is still scary for them, but it is no longer shocking.

The key, in my view, is gradual, but constant change. The current Government has so far made it very clear that it wants more transparency in the public sector. Its recent consultation paper on open government and the FOI provisions in the Protection of Freedoms Bill both make broadly sensible proposals to enhance the FOI Act, especially in relation to publication of datasets (as long as we can get better definition of what a dataset is, of course, but that’s another post). I’d encourage anyone reading this post to make sure that they respond to the consultation.

The priority for me is protecting the rights that we do have (and I say ‘we’ deliberately – many public employees have used FOI outside of work). I have to say that many of the suggestions for reform of FOI that I hear – and even some that I’ve thought about – are, when it comes down to it, about restricting these rights. Whether it’s charging for requests, placing a limit on requests, or whatever it is, they’re all about cutting down on FOI requests. We have to question our motives for wanting to restrict a right this hardly won.

In my view, this Government should focus on making very clear that it supports FOI, and specifically the right to make FOI requests. It should lead from the front and keep publishing more information. It should firmly refuse any suggestions from senior public officials or politicians to water down FOI. In the meantime, the Information Commissioner’s Office and the Ministry of Justice should find better ways to provide support to public bodies in meeting their obligations – the ICO can’t always rise above the fray. And they should do more to encourage responsible use of these rights by those making FOI requests.

We need to keep progress going, but let’s not lose the chance to continue winning over influential critics. Resist more restrictions certainly – backwards is not the right direction. But we need to be careful not to destroy a growing acceptance and even, possibly, nascent enthusiasm to find new more transparent ways of working by only noticing the weaknesses and pushing too hard.

In a forthcoming post, I will talk about the ‘tweaks’ that I think could be made to the FOI Act without damaging the rights we have.

What’s wrong with FOI?

FOI Man makes the case for and against FOI and more transparency – what do you think?

It’s very easy for an FOI Officer to find fault with FOI. But hopefully regular readers will have picked up by now that I support FOI and moves towards openness in the public sector.

Unlike some, I don’t have any beef with particular groups who use FOI. Let’s look at the usual suspects.

Of course businesses use it to draw up contact lists for marketing, or to build databases which they will then sell at profit. It’s their right, and those who promote FOI in Government think this is a “good thing”. It is a mechanism that allows information collected or created at public expense to stimulate the economy. It is a strong justification of FOI in a largely market-based economy. It is why Conservative, as much as Liberal Democrat and Labour supporters, feel able to support openness initiatives.

Students use it to research their degree projects. So what? It’s good that they have the nous to use a facility such as FOI. We only have to provide what we have and if the cost is excessive we have an answer to that. It’s frankly not true that, as some would have it, we have to do their work for them – if information is publicly available to them, we just have to point them in the right direction and if necessary cite the exemption for information that is otherwise accessible.

It’s a good thing that journalists use FOI. I’d rather see stories based on evidence that I’ve helped provide than see badly researched sensationalism in the papers. Surely I’m not the only FOI Officer that gets a buzz when I see something I’ve provided mentioned in the Press? I sympathise with those who have become jaded because of the attitude of some (not all, or even most) journalists, and the way that some disclosures have been presented, but the answer is to remain positive and open, not to become defensive. Otherwise we just reinforce negative attitudes to the public sector in the media.

Users of WhatDoTheyKnow are using a service to make requests. It’s marginally easier to make a request using it than sending an email. Some will abuse that ease, but that’s going to happen with any route made available. And by engaging with those who work for and with WDTK, we have an opportunity to encourage responsible behaviour amongst requesters.

My point is that we can’t have a right and then quibble about who’s “allowed” to use it. And FOI is an important right. Whether we like it or not, it has become an internationally recognised badge of a free and democratic society. It’s as much about demonstrating our aspirations as a modern and progressive country as it is about accountability and transparency. This is one reason that I was disappointed by Tony Blair’s admittance in his autobiography that he considered FOI a mistake. If that’s true, that’s not only hindsight, but also short sight.

That said, of course, it’s very easy for supporters and users of FOI to become blinkered. One of the vaguely articulated aims of this blog is to demonstrate the impact that the legislation, and people’s use of it, has on public authorities and the services that they provide. It is neither perfect nor pain-free. And maintaining it, somewhere down the line, means choosing between FOI and provision of other services.

I’ve said previously that I am irritated by statements such as “it’s our information”. Aside from the fact that it is legally inaccurate, it is hopelessly impractical. Information is collected by public bodies so that they can provide the services that some or all of us rely on. Often, the provision of those services will be compatible with, and may even be served by, disclosure of the collected information to the public. But on occasion, it just isn’t possible, and it wouldn’t be in our interests (as a society) to do so. It’s not that I view Government as always benevolent and paternal, or take a view that we should accept what we’re given without question. But I do accept that at least some of the time, things work better without me or others knowing every last detail. If only because the physical means of disseminating that level of information will get in the way of the provision of essential services.

If FOI and other transparency initiatives are going to work, they have to be managed as a process. That means, I’m afraid, refusing requests that will cost too much. Recognising that some people do abuse the privilege and turning them away. And using exemptions where we have concerns over the impact of disclosure of certain information. It means thinking carefully about the resource implications (I know, dirty words in the public sector at the moment) of more transparency. I think it also means looking at how transparency and FOI can contribute to the wider aims of the public sector. It has to be more obvious to public servants what the point of openness is, beyond satisfying curiosity. Can it help us make the savings expected of us? Are there ways that it can be built into our processes to make them more (and not less) effective? What are the wider benefits to our society?

So what do you think? Do you have any ideas about the future of FOI and how it can be made to work better? I’m particularly interested in hearing your constructive comments on FOI and transparency (rather than the knee-jerk reactions that we’re all prone to when we feel very strongly about something). Let me know by commenting here, or via Twitter (@foimanuk).

FOI 2.0

FOI Man looks at the Government’s latest proposals for FOI 2.0.

The Government has launched a new consultation looking at Open Data and transparency in public services. I’m all for progress in this field.

I wanted to focus though on what the Government is saying about FOI specifically in this report. It suggests the following:

  • establishing the principle that data/information not subject to exemptions should be published;
  • a new requirement that all public bodies/providers of public services should proactively publish information about the services they provide;
  • an enhanced right of challenge against decisions not to publish data to an independent body (I’m really hoping that they’re thinking about the Information Commissioner, and not another body to confuse matters);
  • reform of the fees regulations – notably raising the ‘acceptable limit’;
  • reviewing the Information Commissioner’s powers;
  • statutory limits for internal reviews;
  • using procurement rules to ensure that new ICT systems are designed to facilitate the publication of data;
  • phased introduction of new generation of ICT systems that facilitate publication of data.

I don’t have a significant problem with individual proposals here. I worry about the practical implications of making it all work, especially at a time when the public sector is cutting staff. But I’m sure that Government, enlightened by the responses to its consultation, will factor all that in and make sure that adequate resources are provided.

My main concern is the general tone of this section of the report. In common with many reports by this Government, the underlying message is that public sector bodies and their employees are the problem. In this case, we’re clearly doing all we can to thwart openness. We’re only refusing requests that exceed the ‘acceptable limit’ because we can. All internal reviews are being delayed as long as possible, just because we can. We’re deliberately procuring ICT systems that make it difficult to publish data just so we can argue that it will cost too much to publish it.

No, no, no. I’m sure that some of you reading this will immediately respond that that reflects your experience of public bodies and FOI. And no doubt you have had bad experiences, or felt that you’d had a bad experience because your request was refused. But just because you didn’t get the outcome you wanted, or you had a bad experience with an authority that got it wrong, doesn’t mean that all public bodies are actively anti-openness.

As I’ve tried to make clear in this blog on a regular basis, the biggest obstacle to openness is the resource implication. Not only does it stop you getting information when your request exceeds the ‘appropriate limit’, but it’s also behind 90% of the disputes that I have with colleagues over disclosure – they’re not secretive, they’re busy; and the experience of having to carry out their main function whilst also digging out information  poisons the minds of some officials to FOI in the long term. It’s a real issue. And you can hit us over the head and tell us how awful we are as much as you like, making FOI and openness work is about winning people round so that they can think about these issues positively rather than under duress.

So here are my proposals for a better, more effective FOI regime:

  • more powers for the Information Commissioner;
  • even more important, more resources for the Information Commissioner;
  • ensuring that FOI requests can be regulated – I don’t mind how, but there does need to be some way to do this; like it or not, we have limited resources and likely to become still more limited. Charging is far too blunt a tool, but I’m not really in favour of raising the ‘acceptable limit’ – 18 hours is still a vast amount of time for an authority to spend on answering one person’s questions;
  • ensuring that public authorities are resourced to facilitate openness;
  • abolishing the ministerial veto;
  • requiring public authorities to publish their statistics for FOI compliance (after all, how can the Commissioner ‘name and shame’ authorities if they’re under no obligation to publish or return such statistics).

This would be all along side more pro-active disclosure. But it all needs to be balanced against the ability to provide a workable service. Change, yes, but let’s make it gradual and realistic.

FOI, Datasets and the Protection of Freedoms Bill

A little while ago, Ibrahim Hasan of Act Now Training kindly asked me to write a piece for their Information Law Newsletter. It appears in the latest issue which has been published today.

In summary, I talk about the proposed amendments to the UK Freedom of Information Act in the Protection of Freedoms Bill. The piece covers what datasets are (also covered in more depth by Ibrahim in another piece elsewhere in the Newsletter), what practical steps we should be taking, and finally calls for FOI Officers to get more involved in open data projects in their organisations.

There are also pieces in the Newsletter from Emily Goodhand, better known as @CopyrightGirl on Twitter, who wrote a couple of great guest posts here and here a few months ago, and Jonathan Baines, an Information Rights Specialist at Buckinghamshire County Council, who writes about the Environmental Information Regulations.

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.