The discussion: The principles should affirm the public’s right to information held by public bodies
Access to information held by public bodies is a crucial component of freedom of expression and warrants a separate principle dedicated to it for several reasons.
First, and most importantly, access to information held by public bodies, as well as by private entities that perform public functions or receive public funds, is essential if people are to be able to participate in informed debate; hold governments accountable; protect human rights, health, public safety, and the environment; and ensure access to public goods and services on an equitable basis.
There are two broad categories of information that people need from the government. We need information as consumers and users of government services, including how to access services and entitlements, and how to evaluate what services – hospitals, schools, means of transportation – are best for us. The public, and especially the watchdogs, also need information about how government agencies are functioning – their budgets, their outputs, their policies, the salaries of officials, contracts for outsourcing, reports of oversight bodies – in order to evaluate whether agencies are providing value for money and complying with international law, and constitutional and statutory requirements.
Public agencies are particularly reluctant to make information available that the public could use to hold them, or key officials, accountable. They may also not want to make some consumer information available simply because it’s cumbersome to compile and double-check, or because disclosure of the information could expose wrongdoing or mismanagement by entities that press for secrecy. For instance, the US Consumer Agency for a long time resisted publishing complaints about products, citing the concern that some complaints might be ill-founded and that publishing the information could unfairly prejudice the manufacturer and/or lead to defamation actions. The agency finally agreed to publish the information in June 2011 noting that they would include a disclaimer.
Second, concepts such as the freedom to “receive and impart information and ideas”, mentioned in Principle 1 do not encompass the full meaning of “access to information held by public bodies”. The “freedom to receive and impart information”, set forth in the Universal Declaration of Human Rights and subsequent UN and regional treaties, has generally been understood to apply only to the freedom of willing entities to exchange information free from government interference, but not to address the claims of citizens and others to get information from public bodies that those bodies don’t want to disclose.
Third, international and national experts, institutions and laws have only very recently affirmed that the right to freedom of expression includes a right of access to information held by public bodies. For instance, only in 2011 did the UN Human Rights Committee declare that Article 19 of the International Covenant on Civil and Political Rights embraces a right of access to information held by public bodies. The committee, comprised of 18 experts elected by UN member states, is the body tasked with authoritatively interpreting and applying the Covenant, a treaty that codifies parts of the Universal Declaration of Human Rights. Given the newness of the international recognition of this right, its importance, and the proclivity of governments to deny an obligation to make information available, a separate principle is warranted.
Constitutions of more than fifty countries now grant constitutional status to the right to information; and nearly 90 countries have national-level rights to information laws or regulations in force – including the population giants of Brazil, China, India, Indonesia, Russia and the United States, most countries in Europe and Central Asia, more than half of the countries in Latin America, more than a dozen in Asia and the Pacific, seven countries in Africa, and three in the Middle East and North Africa. More than 5.2 billion people now live in countries that include in their domestic law an enforceable right, at least in theory, to obtain information from their governments. (Citations to all of these constitutions and court judgments can be found on a website maintained by the Open Society Justice Initiative.
Accordingly, I would add a new principle, worded as follows:
“We require information, including from public bodies, in order to be able to participate in informed debate; hold our governments accountable; protect our human rights, public safety, health and the environment; and ensure our access to public goods and services on an equitable basis.”
That principle responds to the points above, and also implicitly makes two additional points. First our need for information includes, but is not limited to, information held by public bodies. The UN Human Rights Committee and numerous national laws recognise that people also need information from non-public entities that perform public functions, receive public funds, are substantially government-controlled or are established by law. A few modern laws and constitutions, including South Africa’s, recognise that people also may need information from any entity that impairs their rights. Second, the need for information held by public bodies is not limited to citizens; rather, it is a human right, which, as freedom of expression, has both an instrumental as well as an essential value. It is as essential to our humanity and freedom to be able to make informed choices as it is to be able to express ourselves. At the instrumental level, residents of a country (whether or not citizens), as well as individuals that are in other ways impacted by a government’s actions, certainly have a need and a right to information held by that government.
Finally, I also suggest that Principle 10 should be expanded to expressly refer to freedom of information:
“We must be free to challenge all limits to freedom of information and expression justified on such grounds as national security, public order and morality.”
This addition makes clear that people must be allowed not only to express opinions that offend the government of the day, but also to challenge secrecy based on national security and related public interests.
The wording of this motion deliberately allows for the Opposition to run a counter-case along the lines set out above. It demands of Proposition that they confront a heavier burden of proof than would be normally required but it’s still achievable by arguing a case based in principle. Most other wordings, as well as being cumbersomely full of caveats, would also place Opposition in the virtually impossible position of defending the suppression of information for no particularly good reason. It’s a good example of when to use a counter-case, for more on doing so, see Meany & Shuster, On that Point! An Introduction to Parliamentary Debate. Publ. IDEA 2003. Chapter 10.
The primary advantage of putting the duty on government to publish, rather than on citizens to enquire is that it does not require the citizen to know what they need to know before they know it. Publication en masse allows researchers to investigate areas they think are likely to produce results, specialists to follow decisions relevant to their field and, also, raises the possibility of discovering things by chance. The experience of Wikipedia suggests that even very large quantities of data are relatively easy to mine as long as all the related documentation is available to the researcher – the frustration, by contrast, comes when one has only a single datum with no way of contextualising it. Any other situation, at the very least, panders to the interests of government to find any available excuse for not publishing anything that it is likely to find embarrassing and, virtually by definition, would be of most interest to the active citizen.
Knowing that accounts of discussions, records of payments, agreements with commercial bodies or other areas that might be of interest to citizens will be published with no recourse to ‘national security’ or ‘commercial sensitivity’ is likely to prevent abuses before they happen but will certainly ensure that they are discovered after the event[i].
The publication of documents, in both Washington and London, relating to the build-up to war in Iraq is a prime example of where both governments used every available excuse to cover up the fact that that the advice they had been given showed that either they were misguided or had been deliberately lying[ii]. A presumption of publication would have prevented either of those from determining a matter of vital interest to the peoples of the UK, the US and, of course, Iraq. All three of those groups would have had access to the information were there a presumption of publication.
[ii] Whatreallyhappened.com has an overview of this an example of how politicians were misguided – wilfully or otherwise can be found in: Defector admits to lies that triggered the Iraq War. Martin Chulov and Helen Pidd. The Guardian. 15 February 2011.
Relying on a right of access would also have addressed the concerns set out by Proposition but would do so in a way that would not endanger actual concerns of national security by allowing citizens the right to challenge such decisions. An independent review could determine where the motivation is genuinely one of national security and those where it is really political expediency. The right to information for citizens is important but should not jeopardize the right to life of combat troops.
Genuine transparency and accountability of government action is not only in the interests of those who also have the right to vote for that government or who support it through the payment of taxes. The functioning of immigration services would seem to be a prime example. Maximising access to information relating to government decisions by dint of its automatic publication of information relating to those decisions ensures that all those affected will have recourse to the facts behind any decision.
If, for example, a nation’s aid budget is cut or redirected, why should the citizens of the affected nation not have a right to know why[i]? If, as is frequently the case, it has happened because of an action or inaction by their own government, then it is important that they know. Equally if such a decision were taken for electoral gain, they at least have the right to know that there is nothing they or their government could do about it.
Governments have, prima facie, a different relationship with their own citizens than they have with those of other countries. In addition, as with the previous argument, extending the right of access does not, per se, require total access. The approach is also simply impractical as it would require every nation on the planet to take the same approach and to have comparable standards in terms of record keeping and data management. At present most states publish some data but the upper and lower thresholds of what is made public vary between them. To abolish the upper limit (ministerial briefing, security briefings, military contractors, etc.) would require everyone to do it, otherwise it would be deeply unsafe for any one state to act alone. The likelihood of persuading some of the world’s more unsavory or corrupt regimes to play ball seems pretty unlikely. The first of those is improbable, the latter is impossible.
People have many different interests in the accountability of governments; different areas of concern, differing levels of skill in pursuing those interests and so on. They deserve, however, an equal degree of transparency from governments in relation to those decisions that affect them. Relying on a right to access is almost certainly most likely to favour those who already have the greatest access either through their profession, their skills or their social capital. The use of freedom of information requests in those countries where they are available shows this to be the case, as they have overwhelmingly been used by journalists, with a smattering of representation from researchers, other politicians and lawyers and so on. In the UK between 2005 and 2010 the total number registered by all ‘ordinary’ members of the public is just ahead of journalists, the next largest group. The public are overwhelmingly outnumbered by the listed professional groups[i].
Required publication, by contrast, presents an even playing field to all parties. Rather than allowing legislators to determine how and to whom – and for what – they should be accountable, a presumption in favour of publication makes them accountable to all. As a result, it is the only truly effective way of ensuring one of the key aims set out in favour of any freedom of information process.
The idea that, presented with a vast mass of frequently complex data, everyone would be able to access, process and act on it in the same way is fantasy. Equally the issue of ‘who guards the guards’ that Proposition raises is a misnomer; exactly the groups mentioned are already those with the primary role of scrutinizing government actions because they have the time, interest and skills to do so. Giving a right to access would give them greater opportunities to continue with that in a way that deluging them with information would not.
There are cost concerned with processing FoI requests both in terms of time and cash terms.[i] To take one example Britain’s largest local authority, Birmingham, spends £800,000 a year dealing with FoI requests.[ii] There is also a delay from the point of view of the applicant. Such a delay is more than an irritant in the case of, for example, immigration appeals or journalistic investigations. Governments know that journalists usually have to operate within a window of time while a story is still ‘hot’. As a result all they have to do is wait it out until the attention of the media turns elsewhere to ensure that if evidence of misconduct or culpability were found, it would probably be buried as a minor story if not lost altogether. As journalism remains the primary method most societies have of holding government to account, it doesn’t seem unreasonable that the methodology for releasing data should, at least in part, reflect the reality of how journalism works as an industry.
[ii] Dunton, Jim, ‘Cost of FoI requests rises to £34m’, Local Government Chronicle, 16 September 2010, http://www.lgcplus.com/briefings/corporate-core/legal/cost-of-foi-requests-rises-to-34m/5019109.article
It seems unlikely that total publication would save much in the way of time or money. If the data was not indexed in some way it would be absurdly difficult to navigate - and that takes time and money.
There are advantages to building a delay into systems such as this, if a piece of information genuinely justifies a news story, then it will do so at any time. If it’s only of interest in the middle of a media feeding frenzy, then it seems unlikely that it was all that important.
It is a misnomer in many things that more is necessarily better but that is, perhaps, more true of information than of most things. Public bodies produce vast quantities of data and are often have a greater tendency to maintain copious records than their private sector equivalents. US government agencies will create data that would require “20 million four-drawer filing cabinets filled with text,” over the next two years.[i] Simply dumping this en masse would be a fairly effective way of masking any information that a public body wanted kept hidden. Deliberately poor referencing would achieve the same result. This ‘burying’ of bad news at a time when everyone is looking somewhere else is one of the oldest tricks in press management. For example Jo Moore, an aide to then Transport Secretary Stephen Byers suggested that September 11 2001 was “a very good day to get out anything we want to bury.” Suggesting burying a u turn on councillors’ expenses.[ii]
For it to genuinely help with the transparency and accountability of public agencies it would require inordinately detailed and precise cataloguing and indexing – a process that would be likely to be both time consuming and expensive. The choice would, therefore, be between a mostly useless set of data that would require complex mining by those citizens who were keen to use it or the great expense of effectively cataloguing it in advance. Even this latter option would defeat the objective of greater accountability because whoever had responsibility for the cataloguing would have far greater control of what would be likely to come to light.
Instead ensuring a right of access for citizens ensures that they can have a reasonable access to exactly the piece of information they are seeking[iii].
[i] Eddy, Nathan, ‘Big Data Still a Big Challenge for Government IT’, eweek, 8th May 2012, http://www.eweek.com/c/a/Government-IT/Big-Data-Still-a-Big-Challenge-fo...
[ii] Sparrow, Andrew, ‘September 11: ‘a good day to bury bad news’’, The Telegraph, 10 October 2001, http://www.telegraph.co.uk/news/uknews/1358985/Sept-11-a-good-day-to-bury-bad-news.html
Although it would be time-consuming to approach so much information, it is not impossible to manage it effectively. As Wikileaks has demonstrated, given access to large quantities of information, it is a relatively straightforward process to start with records that are likely to prove interesting and then follow particular routes from there. In addition, governments, like all organisations, have information management systems, there would be no reason not to use the same model.
Additionally, the very skill of journalism is going beyond the executive summary to find the embarrassing fact buried away in appendix nineteen. That would still be the case under this model, it would just be easier.
Knowing that everything is likely to be recorded and then published is likely to be counter-productive. It seems probable that anything sensitive – such as advice given to ministers by senior officials – would either not be recorded or it would be done in a way so opaque as to make it effectively meaningless[i].
By contrast knowing that such conversations, to focus on one particularly example, are recorded and can be subjected to public scrutiny when there is a proven need to do so ensures that genuine accountability – rather than prurience or curiosity, is likely to be both the goal and the outcome.
None of us would like the process of how we reached decisions made public as it often involves getting things wrong a few times first. However, there are some instances where it is important to know how a particular decision was reached and whether those responsible for that decision were aware of certain facts at the time – notably when public figures are claiming that they were not aware of something and others are insisting that they were. In such an instance the right to access is useful and relevant; having records of every brainstorming session in every public body is not. As the Leveson inquiry is discovering, an extraordinary amount of decisions in government seem to be made informally, by text message or chats at parties. Presumably that would become evermore the case if every formal discussion were to be published[ii].
[ii] This is nothing very new, see: Downing Street: Informal Style. BBC website. 14 July 2004.
It is frequently useful to see the general approach of a public organisation as reflected in routine discussions. Opposition is wrong to suggest that such information would only cast a light on ideas that were never pursued anyway so they don’t matter. It would also highlight ideas that agencies wanted to pursue but felt they couldn’t because of the likely impact of public opinion, knowing such information gives useful insight into the intentions of the public agency in question.
The right to access allows people to see information that affects them personally or where there is reasonable suspicion of harm or nefarious practices. It doesn’t allow them to invade the privacy of other citizens who just happen to work for public bodies or have some other association[i].
Unless there is reason to suspect corruption, why should law-abiding citizens who sell goods and services to public bodies have the full details of their negotiations made public for their other buyers, who may have got a worse deal, to see? Why should the memo sent by an otherwise competent official on a bad day be made available for her neighbours to read over? A presumption in favour of publication would ensure that all of these things, and others, would be made a reality with the force of law behind them.
This would place additional burdens on government in terms of recruitment and negotiations with private firms – not to mention negotiations with other governments with less transparent systems. Let’s assume for the moment that the British government introduced a system, it is quite easy imagine a sense of “For God’s sake don’t tell the British” spreading around the capitals of the world fairly quickly.
[i] Section 40 0(A) od the FOIA. See also Freedom of Information Act Environmental Information Regulations. When Should Salaries be Disclosed? Information Commissioner’s Office.
There are, of course some costs to having a truly open and accountable government, but an effective right of access would allow much of that information to be made available. After all what the public sector bodies are paying in commercial transactions is of great interest to the public. If public bodies are getting a particularly good rate from suppliers, it might well raise the question of “Why?” For example, are they failing to enforce regulations on a particular supplier in return for a good price. In that instance, their other customers and their competitors would seem to have every right to know.
Coliver, Sandra, ‘The principles should affirm the public’s right to information held by public bodies’, Free Speech Debate, 10 February 2012, http://freespeechdebate.com/en/discuss/the-principles-should-affirm-the-publics-right-to-information-held-by-public-bodies/
‘Downing Street: ‘Informal style’’, BBC News, 14 July 2004, http://news.bbc.co.uk/1/hi/uk/3894021.stm
Brittan, Samuel, ‘The pitfalls of Britain's confidential civil service’, The Financial Times, 5 March 2010, http://www.samuelbrittan.co.uk/text360_p.html
Chulov, Martin, and Pidd, Helen, ‘Defectors admit to WMD lies that triggered Iraq war’, The Guardian, 15 February 2011, http://www.guardian.co.uk/world/2011/feb/15/defector-admits-wmd-lies-iraq-war
Dunton, Jim, ‘Cost of FoI requests rises to £34m’, Local Government Chronicle, 16 September 2010, http://www.lgcplus.com/briefings/corporate-core/legal/cost-of-foi-requests-rises-to-34m/5019109.article
Eddy, Nathan, ‘Big Data Still a Big Challenge for Government IT’, eweek, 8th May 2012, http://www.eweek.com/c/a/Government-IT/Big-Data-Still-a-Big-Challenge-for-Government-IT-651653/
‘Independent Review of the impact of the Freedom of Information Act’, Frontier Economics, October 2006, http://webarchive.nationalarchives.gov.uk/%2B/http:/www.dca.gov.uk/foi/reference/foi-independent-review.pdf
‘Freedom of Information Act Environmental Information Regulations When should salaries be disclosed?’, Information Commissioner’s Office, 21 February 2009, http://www.ico.gov.uk/upload/documents/library/freedom_of_information/practical_application/salaries_v1.pdf
Mendel, Toby, ‘The Public’s Right to Know’, Article 19, June 1999, http://www.article19.org/data/files/pdfs/standards/righttoknow.pdf
Mendel, Toby, ‘Freedom of Information as an Internationally Protected Human Right’, Article 19, http://www.article19.org/data/files/pdfs/publications/foi-as-an-international-right.pdf
‘The Issue’, Publish What You Fund, accessed 13 November 2012, http://www.publishwhatyoufund.org/issue/
Rosenbaum, Martin, ‘Who makes FOI requests?’, BBC News, 14 January 2011, http://www.bbc.co.uk/blogs/opensecrets/2011/01/who_makes_foi_requests.html
Sparrow, Andrew, ‘September 11: ‘a good day to bury bad news’’, The Telegraph, 10 October 2001, http://www.telegraph.co.uk/news/uknews/1358985/Sept-11-a-good-day-to-bury-bad-news.html