Earlier this week Lord Burns’ Independent Commission on Freedom of Information legislation released its report. The Freedom of Information Act is something that cuts across all of the areas we are looking at as part of the MediaMill project. So we gave the report a once over with our open data hat on.
Open data and Open Government data in particular as seen as one way that authorities can reduce the burden of responding to FOI requests- put the data out there and people don’t need to ask. At the same time Open Data advocates are quick to point out that Open data and Freedom of Information legislation are complementary; citizens and those who represent them,including journalists, hyperlocal and community organisations, need the power to demand information rather than letting governments decide what to make ‘open’ and available.
One of the biggest concerns for those giving evidence was cost, what the report calls the “Burdens on public authorities” – what it costs to run the system and what might happen if charging was introduced. The report is pretty clear on this point:
The Commission has weighed the evidence received on this issue carefully, and has reached the conclusion that it would not be appropriate to impose a request fee. While we do recognise that requests under the Act do impose a financial burden on hard-pressed public authorities, in our view this is justified by the general public interest in accountability and transparency of public bodies. We recognise in particular that some use of the Act by the media gives rise to some very important investigations that are clearly in the public interest, and that a fee for information requests could hamper those investigations in future.
It’s good news. A fee, no matter how small would be a real issue for hyperlocal publishers where even a few pounds would make a difference.
More specifically from an open data perspective, several other recommendations immediately stood out.
Mandating the publication of compliance statistics
Noting that, at times “the Commission has at times been frustrated by the lack of reliable statistics on compliance with the Act across the public sector.” the have recommended that:
Recommendation 4: That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish statistics on their compliance under the Act. The publication of these statistics should be co-ordinated by a central body, such as a department or the IC.
It’s good news but it does mean that smaller organisations like parish councils that are subject to the act may still fall through the net. The argument for not imposing more bureaucracy makes sense but it remains a challenge for hyperlocal accountability. (1)
Mandating the publication of responses to requests
Similarly the Commission recommends that “all responses to requests are published routinely”, which should broadly help reduce the burden on FOI by:
“helping requestors to obtain information which has in fact already been released without needing to make a request, reducing unnecessary requests for information that has already been published, and allowing public authorities to avoid answering duplicate requests where they can simply point to information on their websites.”
So, the commission recommends:
Recommendation 5: That the government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish all requests and responses where they provide information to a requestor. This should be done as soon as the information is given out wherever practicable.
Enforcing proactive transparency obligations
One of the concerns in the open data community is that open data was somehow a replacement for FOI, a view that’s been vocally challenged. What’s interesting is the evidence suggests almost the opposite. In their evidence open data company The Spend Network noted that they had to turn to FOI when “requesting data that has been mandated for nearly six years and that has detailed instructions on the standards that publishers should meet.”
So the report recommends:
Recommendation 7: The government should give the IC responsibility for monitoring and ensuring public authorities’ compliance with their proactive publication obligations.
There’s a catch with this one – the Information Commissioner will need more resources to police this.
The form of the information
There was one final recommendation that stuck out:
Recommendation 18: That the government legislates to clarify section 11(1)(a) and (c) of the Act so that it is clear that requestors can request information, or a digest or summary of information, be provided in a hard copy printed form, an electronic form, or orally. Where a requestor specifies a specific electronic document format, that request should be granted if the public authority already holds the information in that format, or if it can readily convert it into that format. Where the information requested is a dataset, the requirements at section 11(1A) will apply. The legislation should make clear that the obligations on public authorities to provide information in a particular format extend no further than this.
The rationale behind this is an interesting read (No. Really!). But in a nutshell it says you can ask for the information to be delivered in a certain way but not the way that information is presented; ask for a CSV file and the responders is obligated to do their best. Ask for that CSV file to be formatted, sorted or processed in a certain way and you’re relying on goodwill not the legislation.
The report and open data
Reading the report I can’t help thinking that authorities who have invested in open data portals might be in a better position than many to meet the recommendations or even get ahead of the curve.(2)
Sites like Leeds Data Mill and York open data, already publish stats on FOI. Putting that platform within the reach of the smaller organisations that might fall into the “100 or more full time equivalent employees” would help lighten the burden and may even lower the barrier for those below that threshold.
It also wouldn’t be a huge problem to re-tool many open data platforms to enable better publication of FOI material. That said, the reports evidence rightly praises WhatDoTheyKnow as a great example of how pro-active publication can work. I’d hate to see authorities put money into building their own versions when WDTK is eminently fit for purpose. Looking at metadata and programmatic mechanisms to better interface open data portals and What do they know – a standard in FOI data sharing – would be a more sensible solution.
I think bringing all transparency publishing regimes under the purview of the Information Commissioner is also a good idea. Like many of the recommendations in the report, it recognises that being more open reduces the burden.
So in terms of open data, the recommendations would mean, at the very least, there was going to be more. But recommendation 18, on the form of the requests, does suggest that in future it might be less easy to get at the data in a format open data advocates would be happy with. A cynic might argue that we’ll see more of the strategic use of closed formats to deliver open data.
There are 21 recommendations in total. How many will make it into active service is another thing all together. In a written statement Matt Hancock picked out a number of the recommendations noting that they wouldn’t need (or move) to legislate to implement them. If you work in government, at the very least expect, a whole new raft of ‘guidance’ to land on your desk.
I’ve just brushed the surface of the report here. I’m sure if you have even a passing interest in the way FOI is working i’d recommend you have a look. It’s very readable. The section around the Form of the request (recommendation 18) and the related judgements in particular make for good (if geeky) reading.
(1) There’s a great paper and research around Parish Councils and FOI at https://opendatastudy.wordpress.com/2016/02/17/note-and-paper-on-parish-councils-and-foi/ and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2699198
(2) I’m particularly reminded of OpenCorporates.com CEO Chris Taggart’s view on opening up data as an offensive tactic.