You can watch the entire episode on the BBC’s rubbishy iplayer for a limited time (I appear 15 minutes in) or in perpetuity on YouTube (minute 5). I’m talking here about the way journalists grant public officials anonymity for no good reason. By the very definition of their role, official spokespeople have absolutely no reason to be anonymous yet one of the more dubious practices of the British press is the way reporters collude with officials by granting anonymity.

Sources should be granted anonymity only in very limited circumstances where naming may cause specific harm (such as a whistleblower who could lose his job). There is no reason a Home Office or police force spokesman, for example, should be granted anonymity, yet I’ve had many arguments with these people who insist on it as their ‘right’.

The reason these people insist on anonymity is simply to exercise power without accountability. Anonymity = deniability.

I believe it is a fundamental role of the journalist to push officials to stand behind what they say. If these officials don’t agree, then don’t print their statements or give them air time. It really is that simple. If journalists stuck together on just this one point they could overnight force a change in the culture of parliament, the civil service and many public services.

Late today the Information Tribunal published its decision ordering the House of Commons to provide full disclosure of MPs’ second home expenses claims. The decision is not yet on the Tribunal’s website but you can download it here (PDF 2MB).

The House is ordered to publish every claim and receipt for the MPs specified in the requests filed by myself and also the Sunday Times’ Jonathan Ungoed-Thomas and Sunday Telegraph reporter Ben Leapman.

My solicitors have issued a press release which highlights the main points. The only omissions allowed are for ’sensitive personal data’ such as MPs’ health matters; bank, loan and credit card statements; individual numbers on itemised phone bills and details of contractors who had regular access to MPs’ homes. Security details will also be kept private, as will addresses of MPs who have a good reason – for example a known stalker, terrorist or ‘other criminal threat’.

The Tribunal criticised the way the self-certified expense system was administered:

“The laxity of clarity in the rules for ACA is redolent of a culture very different from that which exists in the commercial sphere or in most other public sector organisations today.”

It stated that the system constitutes “a recipe for confusion, inconsistency and the risk of misuse” and is both ‘deeply unsatisfactory’ and with a ‘shortfall both in transparency and in accountability (that) is acute.”

My only criticism of the ruling is the manner in which it was published. I knew about this decision last week but was under a strict embargo not to speak about it to anyone while additional submissions were taken on the Tribunal’s seven categories of redaction. None of the parties were told when the final decision would be released and it just appeared in my inbox at 4.30pm this afternoon – with no notice. Fortunately, I happened to check my email at 5pm. But by then the Tribunal staff had left for the day – without putting the decision online – so I had to forward it to the media and then rush around town giving interviews!

BBC Online News picked up the story and they also provide some footage from the broadcast news report.

MySociety built the site and I’m working with the developers to add more contacts lists and guides for making requests and dealing with obstructive or unhelpful officials.

It’s always been my belief that FOI is for everyone not just journalists or MPs or professionals. It is an important tool for maintaining democracy. How can we be an informed electorate without information? This site gives everyone an equal opportunity to get that information. You shouldn’t have to be in Whitehall, or a member of the media or an elite to find out how public officials are spending your money.

MySociety is a project of the registered charity UK Citizens Online Democracy. If you like what they’re doing, then you can make a donation.

David Farrer, deputy chairman of the tribunal, said in the ruling that publishing the identity of ASBO recipients, even when the order was still in effect, could cause “unjustified humiliation” and may violate the Data Protection Act.

The Tribunal’s main concern was not about the rights of the law abiding public to live free from fear of vandals or open justice but that disclosure might be “unwarranted by reason of prejudice to the rights and freedoms or legitimate interests of the ASBO subjects.”

I’m all for protecting the privacy of individuals but when we’re dealing with sentences given out in a so-called open court that is funded entirely by the taxpayer, it cannot be right to keep secret the results of the criminal justice system from the people who pay for it and in whose name it operates.

Another surprising circumstance of this case is that the original requester of the information – David Leigh of the Guardian – was not even informed of the Tribunal hearing despite much of the argument being about the reason for his request and what he planned to do in his investigation.

The fact is that every ASBO is made in public in the sense that any adult can supposedly attend court proceedings. But of course no one does anymore and as a citizen has no rights to use the information he witnesses in court, effectively courts are now becoming the secret cloisters of legal professionals. If councils can now also keep secret their use of ASBOs then we really are moving toward a system of secret justice.

Regardless of whether or not the data (which was burned onto CDs by a junior employee and lost in the post) falls into criminal hands and leads to wholesale identity theft, the sheer scale of the loss is cause for concern: for this database is not an anomaly. The current government is obsessed with building large-scale centralised databases such as the Children’s Register, the NHS ‘data spine’ and the national ID card. They claim that it’s more efficient to run society with one big, top-down centralised system. Actually, the gains in efficiency are negligible at best and the losses in terms of personal freedom are great.

If you don’t want a private company to have access to your personal details you can decide not to do business with them. The difference with the government is that you have no choice. I’ll be talking about this tonight at 10pm on BBC Radio 4’s The World Tonight.

The report shows the expansion of official secrecy in the United States and why this poses a threat to the basic democratic processes. There’s an American focus (because the study was funded by the American foundations), but official secrecy is far, far greater in the United Kingdom. However there is no funding available in the UK for such a survey.

See “Government Secrecy: Decisions without Democracy,” written by David Banisar, July 2007: http://www.openthegovernment.org/otg/govtsecrecy.pdf (1.8 mb)

But that’s not actually true. I would have known about the decision because a press release was already written and on its way to all the news wires. The Commissioner’s private PR firm (paid for with taxpayer money I might add) had already been briefed on the controversial decision (unlike me) and their press strategy was already underway before any of us complainants knew our cases had even been decided.

Clearly this is regulation by press release. As the complainant who brought this case, I have a right to be informed first about how my case was decided. Instead I have to hear about it from the news wires.

This is not the first time this has happened. Decisions on my cases for the Attorney General’s advice on the Iraq War and the names and salaries of MPs’ staff were published before I’d ever received the Commissioner’s Decision Notices.

There seems a blatant double standard where the public bodies that are regulated by the Information Commissioner are given every courtesy and informed in advance of upcoming decisions and their contents, particularly where they are controversial. But the public are treated like the cheated-upon spouse – we are the last to know.

The Information Commissioner’s own guidelines state that: “He will give both Departments and complainants a reasonable period of time to digest the Notice before himself making the Decision Notice publicly available.” [Memorandum of Understanding] Page 6, section 23. At the FOI Live conference on 16th June 2005, Richard Thomas announced that his policy was to wait 48 hours before publishing decisions.

Clearly the Commissioner is not living up to his own guidelines. If he spent as much energy dealing with his backlog of cases rather than his press strategy then maybe he wouldn’t have such bad press in the first place.

FYI
My request was made 20 March 2006 to the House of Commons Commission. I asked for an itemised breakdown of all MPs’ Additional Costs Allowances for the most recent financial year. Later, I agreed to narrow the request to 10 MPs who were: Tony Blair, David Cameron, Menzies Campbell, Gordon Brown, George Osborne, John Prescott, George Galloway, Margaret Beckett, William Hague and Mark Oaten.

The decision notice is case reference FS50124671. I will be posting up the decision and the ICO’s press release issued this morning shortly.

Openness is bad, he states. It means the exposure of politicians’ private letters and their lobbying of other politicians. Such transparency will limit the government’s ability to formulate policy.

“If we are to live under constant threat of publication, this will prevent MPs from expressing their views frankly when writing to a minister. We need urgent advice on what the position is.”

Politicians as delicate creatures frightened to speak in public? As if! I’ve said it before, but this quote shows that it still must be said again: policies made in secret are bad policies. They don’t serve the public well at all. It is only by debating the relative facts and merits of an issue that a superior solution can be found. We only have to look at the shambolic state of government to see what level of competence results from policies crafted in the dark recesses of secrecy.

Imagine if science worked in this way. Someone could determine (in secret) that his snake-oil was the best solution to a problem (treating polio, for example) based on findings that only he and his minions could access. No data would be published so no one could challenge the legitimacy of the policy. The reasons behind the decision would be kept secret, too. It is easy enough to see how detrimental such a process would be to science. Yet this is exactly the way our ‘modern’ Parliament makes policy and it is in every way as detrimental to the health of our society.

So the real danger to government – step forward Trade Secretary Alistair Darling who has written to the Lord Chancellor and Secretary for Constitutional Affairs, expressing his worries about open debate between politicians and the public.

I discovered that while the Government is content to spend taxpayers’ money on the cost of being accountable to the taxpayer, it is not content to record the amount wasted by bureaucrats. Their response to all my queries, a remarkably terse:

I am writing to advise you that the information you requested was not recorded, therefore not held by the department.

Read their response here (word 216kb).

Not able to bring themselves to admit the whole exercise was a massive time-waster, the Government has instead initiated a consultation on their previous consultation. Apparentely, they didn’t like the answers they got the first time round, so they are trying again (London Mayor Ken Livingstone did the same thing with his push to expand the congestion charge westwards).

On March 29th, the Department for Constitutional Affairs published a supplementary consultation paper on the draft fees regulations inviting views on the principle of amending the existing regulations. Many of us had complained that the consultation questions were so narrowly drawn and based on such false premises and flawed data that it invalidated the whole exercise. So while the climbdown is welcome, this new delay means we can now add to the Government’s waste of taxpayer money another £10,000 or so along with many more hours of expensive civil servants’ time.

This is the price of secrecy: inefficient and incompetent government.

General comments

Format and costings used in the Consultation Exercise

1. The questions are framed to imply implicit support for the Government’s proposals and the assumptions on which these proposals are based. Therefore this exercise fails to meet the requirements of a proper public consultation.

2. The fact that these highly-restrictive questions are based on a false premise further invalidates this exercise as a public consultation. There have been several attempts by members of the public to obtain the raw data behind the figure put forward by the Government as the total cost of implementing the Freedom of Information Act. To date, both the raw data and the methodology used by Frontier Economics have been kept secret. It is a central tenant of academia and, indeed, the scientific method, that for a conclusion to hold merit, the raw data and methodology behind it must be published. In the absence of such evidence, one must consider the conclusion as nothing more than mere unsubstantiated speculation.

3. The costing method appears to be based on political motivation or ’spin’ rather than empirical evidence. This supposition is supported by the fact that no effort appears to have been made to account for the costs of continued government secrecy. For example, the House of Commons has spent at least £17,000 fighting FOI requests from the public for a detailed breakdown of MPs’ expenses. Numerous councils have spent tens of thousands of pounds blocking requests by the public for restaurant and fire safety inspections. Public funds have been used to pay external and internal lawyers to find ways of blocking disclosure. Such wasteful and unnecessary costs are a direct result of the poor drafting of the legislation and an absence of forthright central guidance. Keeping information secret is more costly than public disclosure yet these costs are not included in the Government’s calculations. In the United States where this data is available, it has been found that for every dollar spent declassifying old secrets, federal agencies spend approximately $134 creating and storing new secrets. ( “Secrecy Report Card 2006″ conducted by OpenTheGovernment.org. Available online at: http://www.openthegovernment.org/article/articleview/193/1/68?TopicID=.)

4. The costings take no account of the financial benefit of freedom of information to the overall economy. For example, the public disclosure of official information under FOIA in the United States is largely responsible for the rapid growth of that country’s $750 billion information industry (Peter Weiss’s “Borders in Cyberspace” paper about the relative benefits of closed and open access to public data). In addition, FOI has saved countless millions by revealing corruption and inefficiencies.

5. There is no consideration of the costs associated with the current FOIA regime’s overly complex bureaucracy and lack of enforcement. A law designed to be used by the public should be drafted in such a way that it is understandable to the common man. For example the United States federal Freedom of Information Act takes up one page and is straightforward and written in plain English. By contrast the UK law is close to 90 pages of poorly worded verbiage. It allows for all sorts of ambiguity and interpretation which leads directly to an undue burden on the public purse through countless guidance notes and legal consultation (needed to interpret the poorly drafted law). These costs should be included in the overall cost of Government secrecy.

6. The consultation fails to consider the full burden to the UK taxpayer of the current FOIA regime. To be clear, the law allows access to existing information; it does not require the public body to create new information. It is a simple democratic principal that the public – who provide the funding and in whose name public information is collected in the first place – should have easy access to the fruits of their largesse. Accessing information in the current system is like buying a train ticket only to show up and be refused access to your seat or possibly asked to pay a second time. The public have already paid for this information, therefore they have a right to see it.

7. The estimate fails to include the cost of the survey commissioned by Frontier Economics nor the 53-page consultation document. Nor indeed, the not inconsiderable sum to run this public consultation. As such, let this submission serve as its own written FOIA request for the detailed costs, both monetary and in terms of staff manhours of:
a. the survey commissioned by Frontier Economics
b. the drafting of the Regulations
c. the drafting and running of the public consultation
d. the drafting of new guidance related to the Regulations

8. The real problem with the implementation of the FOIA is not the cost, but the delays and lack of enforcement that make the law almost useless. I attach as an example, a study I conducted for a client about Tesco. In most cases the answers I received were superficial and showed a clear failing of the records-keeping systems of government. In addition, a good number of departments failed to provide an answer to my request within 20-working days if at all. One way of judging the value for money of the Freedom of Information Act is on the amount of public information released to the public. Currently the House of Commons provides full answers to less than 25 percent of FOIA requests – a clear indicator that performance values are suffering (Hansard: 1 Mar 2007 : Column 1451W). The proposed changes would only make this situation worse and thus make the law of even less value to the public. Instead of making the system even more bureaucratic, the solution is to adopt the recommendations put forward last summer by the Constitutional Affairs Select Committee.

9. In conclusion, due to the inaccurate cost model used and the party political wording of the questions in this consultation, this exercise fails to meet the criteria of a proper public consultation exercise.

FOI is essential for the information economy

10. In the UK the public cannot access the raw data created and maintained at their expense. In addition, a restrictive copyright regime stifles innovation using this public sector data. It is noteworthy that the UK’s database and information industry lags well behind that of the United States. Pioneers in this country who use official data to create new products and innovations have all faced obstruction from UK public bodies either from issues of access, copyright or usurious fees. For example, the architects of www.publicwhip.com and www.theyworkforyou.com were threatened with prosecution when they first set up their sites. One of these programmers also attempted to build a Statute Law Database (as the Government had failed to do so after 10 years) but was prevented from doing so by the Department for Constitutional Affairs’ refusal to release the necessary data under the FOIA.

11. It can’t be right that innovative campaign groups and companies must use Googlemaps for the geospatial needs when this country has its own mapping agency funded since its inception by the taxpayer. In the US, open and unrestricted access to public sector information has resulted in the massive growth of the information industry, specifically in the geographic information and environmental services sectors. Similar growth has not occurred in the UK due to restrictive government information practices, primarily the ineffectual freedom of information act. Studies have shown that there is significant economic benefit to opening up official data to the public. The table below shows the comparable economic and investment values of public sector information in the EU and US.