Tag Archive for Transparency

FOI and Procurement

FOIMan explores how FOI and transparency rules interact with the process of procuring new goods and services by public authorities.

freedom-of-information-graphic-smallOne chapter that didn’t quite make it into my book due to lack of space and time was going to focus on the interaction between FOI and procurement processes (though of course the book still includes useful tips for dealing with requests about contracts). I’ve sought to redress this in my latest article for the Freedom of Information Journal. You can, of course, subscribe to the journal, which contains lots of useful articles and the latest FOI news – details can be found opposite and at http://www.pdpjournals.com. However, you can also read the article here.

My next FOI journal piece will highlight what we don’t know about FOI – some of the ‘facts’ that we bandy around about the Act, but are not quite as set in stone as we might think…

By the way, we’re planning an experiment for a future issue of the journal. If there’s an FOI or EIR problem that you’ve never quite got to the bottom of and would like me to explore, let me know either directly or via PDP. I can’t promise to deal with every query submitted, but the aim is to answer a selection of queries in the article. If it works, we might just do it again. Even if you don’t subscribe to the journal, the eventual article will, as ever, be reproduced here. So if there’s something you don’t know about FOI, and think others might be puzzled by it too, drop me a line with ‘FOI Journal Q&A’ in the subject line and I’ll see what I can do.

 

Local Authority Meetings & Secrecy

FOIMan clarifies the relationship between FOI and local authority meeting rules.

Following the awful tragedy that unfolded at Grenfell Tower, there have been a lot of questions asked of the local council, the Royal Borough of Kensington and Chelsea (RBKC). Yesterday (29 June 2017) the council held a Cabinet meeting which began and ended in controversial circumstances. I was subsequently asked by a follower on Twitter about the relationship between FOI and attendance at council meetings.

The short answer is that there is none. FOI gives a right of access to information held by public authorities. It doesn’t regulate access to meetings.

The longer and more helpful answer is that FOI forms part of a range of legal requirements that ensure that local authorities like RBKC are accountable. I’ve written previously about transparency rules in local government. In relation to meetings of the RBKC cabinet, the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 are, I believe, the relevant rules. I won’t go into whether RBKC were entitled to exclude the media from the meeting in this case as a) I don’t claim to be an expert in this area, and b) it’s already been dealt with by a legal ruling which ruled that the Press had to be admitted. But if you’re interested in what the rules are, the regulations I mention above may be of interest to you.

From my point of view, one of the most interesting issues is that RBKC are the latest organisation to discover that the perception of secrecy can be just as damaging, if not more so, as the revelation of embarrassing information (interestingly a theme explored by Dr Ben Worthy in his recent book on The Politics of FOI, which I thoroughly recommend). As one MP in their maiden speech said:

The public has the right…to know what its elected representatives are doing…Publicity is the greatest and most effective check against any arbitrary action.

The MP was Margaret Thatcher, and she said this in 1960 in support of a Bill to allow the Press to attend council meetings.

(HT to Alan Travis of The Guardian – @alantravis40 – for providing the quote above from Hansard in a Tweet yesterday)

Why the transparency backlash must be fought

FOIMan fears a backlash against FOI and transparency in the UK – and highlights arguments over their value in the US.

Sunrise or sunset for transparency?

Sunrise or sunset for transparency?

One of my fears following the election of a Conservative majority government earlier this month is that it may herald a backlash against FOI in the UK. My Act Now Training colleague, Ibrahim Hasan, has written a really good post outlining what changes may be in the offing under this government. Fans of transparency have reason to be pessimistic.

The Prime Minister has gone on record with his criticisms of FOI. Most recently, he expressed a desire to The Times to:

…declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FOI…

I’ve written previously of my suspicions that Simon Hughes, the former Liberal Democrat Justice minister, had opposed attempts by Conservative colleagues to make it easier to refuse requests on grounds of cost. That defence is now gone. The new Justice Secretary, Michael Gove, is unlikely to be enamoured of FOI given his previous experiences.

This antipathy at the top will be encouraged by others who are sceptical of FOI’s value. Given how readily the government was moved to strengthen the exemption protecting correspondence with the monarch and her heirs, Clarence House and the Royal Household will feel able to push for more control following the release of Prince Charles’ correspondence. The Local Government Association will issue more press releases about dragon attacks, exorcisms and asteroids. Universities UK will argue once more that higher education institutions ought not to be covered by FOI. Businesses and charities in receipt of public funding will express a sigh of relief that Labour’s plans to extend FOI to them will not happen.

A reaction against FOI will not be unique to the UK. Other countries are experiencing a backlash against their transparency achievements. Alasdair Roberts, an academic who has been studying FOI in Canada and the US for decades, has written a fascinating paper which seeks to refute criticisms of transparency in the US.

The US critics argue that transparency has become a knee-jerk reaction to any perceived problem in society, but that often it creates more problems, making government and institutions less effective. Roberts’ response addresses these criticisms directly with three arguments.

Firstly these writers tend to conflate several forms of transparency. For example, requirements on certain sectors and services to publish performance indicators actually help governments achieve their goals, and ought to be distinguished from accountability requirements on the government such as FOI. Not all transparency has the same aims or results.

Secondly he argues that when there is a crisis, transparency is not the first reaction of the public or politicians. Instead the initial response tends to be to enhance control over events. Calls for transparency tend in fact to be the result of expansions of executive and bureaucratic power. So in the 1960s and 1970s there was a big increase in executive power in the US which in turn led to more calls for transparency – resulting in the US FOI Act and similar legislation. It is possible to see parallels with the rise of “presidential-style” government in the UK especially under Margaret Thatcher and Tony Blair, and for example, executive politicians in local government, resulting in our FOI Act and other openness rules.

Thirdly what Roberts argues is that when we see calls for more transparency, it is not because people want to know more about the institutions that are already relatively open to them; it is usually because the way things are done has changed and therefore more transparency is required in order to maintain the same level of openness as before. We have seen this in the UK with the outsourcing of public services which in turn has led to calls for FOI to be extended.

Roberts finishes by making an important point, as valid in the UK now as in the US and elsewhere. Transparency and FOI critics want advocates to accept the status quo. But change in government and administration is constant. If transparency isn’t similarly adjusted, it will naturally erode. To preserve our right of access we must fight, not just for what we have, but for more. If we fail to do this, we will soon find ourselves in the dark just by standing still.

Opaque transparency

FOIMan observes that for all the legislation and talk of transparency over the last 10 years, it seems ever harder to find information about our public authorities.

We are all individuals!

We are all individuals!

FOI was supposed to open up our public bodies. They were supposed to publish information proactively and to answer requests from the public. Since FOI came into force, there have been other laws and initiatives all of which claimed to make publicly funded organisations more accountable. And yet every time I want to get hold of information, or get help with something, there seem to be more barriers than ever.

Let me give you an example. We want to carry out some building work on our house. Most of the work is internal, but we also want to make a minor change to the shape of the roof. Despite weeks of reading and re-reading the local council’s guidance on planning rules, we cannot work out whether we need planning permission. So we emailed the council and asked. Their response was that they couldn’t advise unless we paid for a pre-planning advice service. We decided to do this as we didn’t want to come up against problems later. Today Mrs F went to fill in the form that the council had sent us. At the top of the form in large unfriendly letters was the statement: “DO NOT USE THIS FORM TO ASK WHETHER YOU NEED PLANNING PERMISSION.” So the form we were told to use to seek advice on whether we needed planning permission tells us not to use it for that purpose. Attempts to speak to the council resulted in being left in a queue until eventually giving up. We want to do the right thing – are prepared to pay just to be told what the right thing is – but the council seems determined to avoid telling us anything useful.

I’m currently trying to find out who to market my services to in a range of public authorities. All I want to know is the relevant department, a job title and maybe a name of someone in Human Resources or Information Governance that I can send my sexy new leaflet to. I’m trying to find the people who manage FOI, or at least the ones who organise their training. But almost without fail, websites of public authorities now give very bland information and generic contact details. I’m having to guess. Of course, I could make FOI requests to find out, but surely it’s easier for them as well as me if they publish the details online?

I appreciate that some of you will have little sympathy for those wanting to send them marketing literature. But I would experience exactly the same if I was wanting to discuss my FOI request or a problem with service provision.

This appears to have got worse since FOI and recent transparency regulations. We’ve seen it with gov.uk – I’ve moaned about that before – but it’s spreading throughout the public sector. It’s one thing providing workflow services for various specific activities like ordering a new passport. Or publishing thousands of datasets. But if you, as a regular citizen, have questions or need help that doesn’t fit that model, you’re – forgive me – screwed.

There are tons of requirements now for transparency – not always complied with (I’ve seen at least one council site which appears to have given up on publication schemes altogether). But whilst there has undoubtedly been progress in some areas, in other ways things appear to have got worse. Often it’s the very measures designed to help that get in the way. Websites are increasingly designed to cut down on “clutter” (i.e. useful information) and focus on the delivery of the service rather than its organisation. But both these aims conflict with any attempt to resolve problems or do something the authority hasn’t predicted. Similarly the growth of “one-stop shops” has led to an inflexible workflow approach to almost any attempt to interact with some public authorities.

This is going to seem an odd thing for me to say, but it’s as if FOI and transparency rules are contributing to the problem. It seems to encourage an attitude of compliance and nothing more. If you want to find out the name and salary of directors at the council, you can find that – because it’s a requirement of the Local Government Transparency Code. But if you want to find out who to speak to about a planning matter, or even FOI, it’s almost impossible to find their contact details.

Transparency isn’t just about publishing what the government says you should. Nor is it about answering FOI requests within 20 working days. It’s about an attitude, a behaviour, which says we’re here to help. It’s about making it as easy for the public to see how decisions are made (and indeed to get decisions made) as possible and being proud to do so. It feels like public employees are increasingly hidden behind websites, rules and workflows. I suspect many of them would be as pleased as the rest of us if some of those barriers could be torn down so that they can do what they joined the public sector to do – help people.

FOI v Open Data?

FOIMan questions Cabinet Minister Francis Maude’s suggestion that FOI requests will be made redundant by the government’s transparency and open data initiatives.

Francis Maude made a speech earlier today about government transparency and open data. It caught my attention partly because of a section in which he talks about the Freedom of Information Act:

Ten years ago the Freedom of Information Act came into force. Tony Blair called it his biggest mistake. But it was a historic piece of legislation, it wasn’t perfect. My aim if I’m honest with you is to make Freedom of Information redundant. My view is that we should be proactively making public everything that is appropriate. You should make redundant the need for people to ask for access to information.

Rt Hon Francis Maude MP, Minister for the Cabinet Office (reproduced under the Open Government Licence v3)

Rt Hon Francis Maude MP, Minister for the Cabinet Office (reproduced under the Open Government Licence v3)

I don’t think anybody would question the laudable aim of making information available to the public proactively. The government has made lots of data available and, as I reported in my last post, has forced other parts of the public sector to be more transparent. There are practical challenges caused by these requirements, such as how to make the vast amount of data useful and accessible to the public, and how to avoid making public authority websites unnavigable and cumbersome. But in principle it is undoubtedly a welcome development for central government to be talking so positively about transparency.

However, I do question Mr Maude’s aim of making “Freedom of Information redundant”. The key here is his phrase “we should be proactively making public everything that is appropriate.” Who decides what is “appropriate”? How do people challenge that decision? What if people have further questions about the information that has been disclosed?

Statistics also out today show that of the requests that were considered “resolvable” by the Cabinet Office between July and September this year, only 29% were granted in full. So nearly three-quarters of the time, the Cabinet Office considers that it is not appropriate to disclose the information people actually are interested in. Of course, that doesn’t mean that the Cabinet Office is wrong to withhold that information in every case, or even most cases, but it does place a whopping big question mark over Mr Maude’s ambition to make FOI redundant. No matter how much information is published, people will want to know more than government is willing to put out there.

Mr Maude’s comment echoes the Prime Minister’s statement that FOI requests are “furring up the arteries” of government. Of course, if you want to run government efficiently, FOI is not the best way to be transparent. Answering requests can be time-consuming, and it is difficult to allocate and plan resources. This is the argument of many in the public sector who criticise it. But it is the main reason I think it is so valuable. If you were running a business, nobody in their right mind would choose to obligate themselves to answer requests for information in this way. That’s the point. Delivering public services is not about running a business. It involves spending people’s money to make the country and communities work in a way that benefits as many as possible, whilst giving them as much say as possible in the way that happens. That a government recognised that people should have a right to question public bodies about the way they are delivering services, despite the inconveniences that it may involve, is something that gives me a little faith in politics – and God knows, we need more of that.

Mr Maude and the government’s ongoing efforts to publish more public sector information should be welcomed. But they will never make FOI redundant – true transparency requires both.