Bishop Hill Misunderstanding FOI
Oct 20, 2012 FOI Charles Moore writes about FOI at the Telegraph and it is clear that he is not in favour.
[T]he effect of FoI is to promote dishonesty and concealment. I pity any biographer of any prime minister from Tony Blair onwards. He or she will not be short of government paper. Thanks to the computer’s power of infinite reproduction and the advent of the email (to whose implications, by the way, FoI gave no thought), he will drown in material. Because of the cant in which modern administrative documents are expressed, words like “openness” and “transparency” will be spattered over thousands of pages. But there will be no such openness or transparency. The big decisions will all have been made in whispers in a corridor, or abbreviated in a text message. To find out what happened, the biographer will have to rely solely on the fallible memory of elderly ex-ministers and officials.
This is a sad loss to history, and therefore to the public understanding of government which FoI is supposed to assist. But it is even more serious than that. It does not mean only that the records of government are skimped. It means also that government itself is corrupted.
We all rightly complain about bureaucracy, but all good government requires a trusted process. The interested parties – the relevant departments or agencies, No 10 Downing Street, Cabinet committees, the Crown – should be able to know and privately raise questions about a policy before it launches.
And he continues by setting out the standard "chilling effect" arguments against FOI.
The problem with Moore's position is that it is based on a misunderstanding of what the purpose and effect of the FOI Act are. FOI has exposed corruption and graft within the government and civil service to the benefit of the public at large. This is what it was designed to do. In this way the Act's authors hoped to introduce a deterrent effect on the corruption of the civil service. Set alongside these significant gains, Murray's arguments about the loss to historians look rather feeble.
But what about his more substantive point about the "chilling effect" on policy development. It's hard to know just how many times it will be necessary to repeat the point, but let's just say it once again. Documents related to the policy development process are exempt from FOI. There is no problem.
More research required before you vent, Mr Moore.
Reader Comments (36)
We have to hide the documents now so that they are juicier for future historians??
Talk about feeble...
I think this is the heart of the problem:
They fail to accept that the public are at the very least "interested parties" and are in fact the people who bankroll everything!
The intent of FOI is transparency and citizen involvement.
The reaction to FOI of some required to be transparent is dishonesty and concealment and in the case of climate science, delusions of special status. Deal with them and leave FOI alone.
I'm not sure this is quite the point that Moore is making though I think his views are needlessly pessimistic.
However, he certainly does have a case when he argues that when material becames available under the 30-year rule it is likely to be so bland as to be useless.
I'm sorry, but the argument that advice to ministers is already confidential doesn't work. When it was made a legal requirement that every Council and Council committee meeting be open to the public all that happened was that a sizeable proportion of sensitive business was classified as "exempt" and the public was excluded.
Having at times had some of this "exempt" business leaked to me I can say that a fair proportion of it was taken in private to save the blushes of councillors or officials and not because it genuinely fell within the exemption rules.
And then, of course, there were (and still are) the political group 'pre-meeting meetings'.
Having watched on one occasion a 32-item public agenda disposed of in under three minutes, I know whereof I speak.
I am by no means opposed to openness in public affairs but the more you compel openness the more people will find a way legally to circumvent it. To think otherwise is naive.
The more you try to make laws to stop people from committing crimes the more criminals will seek ways to circumvent those laws, to think otherwise is naive.
That any attempt by shabby, incompetent, unscrupulous and corrupt public-sector carpetbaggers to frame legal remedy to their feculent chicanery in a negative light should be met with with most forceful and uncompromising opposition is axiomatic. To think otherwise makes you a right ****
What Dung said.
Look at the way the Hockey Team have clearly established back-channel off the books email to avoid future FOI problems. Look at Gavin Schmidt's 'my-computer-not-my-computer' saga. It's clear that those with something to hide will continue finding ever more elaborate (and crooked) ways to hide it.
The good news, however, is that it makes it obvious to reasonable folk that they are hiding 'something' and are therefore not to be trusted.
It's like wearing a T-shirt that says: I'M A CHEAT.
Dung 3.07pm
I'm not sure whether that is meant to be a criticism, or otherwise, of my comment.
All I would point out is that there is nothing criminal per se either in disclosing data or in concealing them so the comparison with criminality hardly applies. What has happened here is that a law has been passed not in order stop people committing a crime but in order to criminalise what in any other context would be perfectly lawful behaviour. The law is very easily circumvented unless, of course, you are trying to police every public servant's utterance in all circumstances in which case you have a law that is unenforceable and therefore pointless.
I have said before, and been unpopular for doing so, that I am not faintly interested in political (small 'p') tittle-tattle and that is what we have got in a lot of instances, mainly because that is what the media are interested in. UEA did their cause no favours by bleating about being harrassed by FoI requests but an incredible amount of what came out in the Climategate emails was meaningless rubbish as far as climate science was concerned and some that we leapt on with glee (not all, by any means) was genuinely taken out of context, of that I'm sure.
I can hear Jones and others saying to each other, "but that's not what I meant", any more than "I could kill you for that, you wee bastard" is to be taken seriously when one brother is chasing another round the dining room!
As I said, I have no problem with openness in public affairs but one result of the FoI and Climategate is that if climate scientists feel the need to hide declines, redefine peer review, or get editors sacked, be absolutely sure they will not be putting it in an email.
So at the end of the day, where has that got us exactly?
Moore not Murray
Charles Moore wrote:
Surely FoI is there to force the big decisions to be taken on the record. With a wide awake public and media all we need do is question how policy decisions came to be. If they appear to come out of nowhere we can be reasonably sure that it was done off the record and should be challenged.
Charles Moore wrote:
Why? To want to present a polished policy decision is to entirely cut out the public's involvement in decision making, and also to hide lobbying of the decision making process. We will also never get a grown up media if all they ever want to print is a done deal rather than delve into policies and the potential outcomes and help to inform the public.
Much of Moore's objections to FoI are actually objections to digital records and the haphazard quality he believes each civil servant achieves with their archiving. There is a simple answer to that - publish everything.
Gareth said :
"Surely FoI is there to force the big decisions to be taken on the record."
I imagine that was the case. But it seems to me that the Act was passed to manage past behaviour. I don't think it works so well in anticipating how behaviours change in response to the existence of the Act. The Act is a fixed set of rules, a game if you like. And folk like little more than working out ways around rules so that they win the game "fairly".
There are plenty of examples where FOI has worked. But I fear there are also many cases where it has been out-thought. And the ratio between the two will go the wrong way. FOI will turn up crumbs of enetertainment value but too often fail to find the tales behind the "big decisions".
Big Brother would consider Mr. Moore double-plus good.
Freedom of information had the enthusiastic support of all "right thinking people", i.e. people with fashionable left-of-centre views, because they imagined that it would be a tool that would be used by typical left wing political activists to embarrass "nasty" right wingers. Because their views are always the correct ones they never imagined that FOI could be used to cause problems for people promoting policies that they supported.
Now that they have discovered that what is sauce for the goose is sauce for the gander they think FOI is unfair!
Charles Moore's article is dated 8:15PM last night and I had read it and clipped what I felt was the two key paragraphs to my personal wiki within the hour. A strange chance, given how infrequently I visit the Telegraph. (I had a completely separate reason to go to Moore's own page, which I've probably done about twice in five years.)
I was absolutely delighted to stumble across such a powerfully-argued case against FoI. I also felt at once: that's going to take a lot of thinking through before even mentioning on Bishop Hill. Because I wasn't convinced Moore had grasped the implications of the digital revolution - though I think he's already thought more incisively about it than many.
What did I think were the two key paragraphs? I'm not at all surprised that there's no overlap at all with the ones Bishop Hill thought to show the next day. And that's not a resounding vote against BH, just a statement of fact. We tend to show what is most germane to the argument that we wish to make. Here was my choice:
As I read this I certainly didn't know that "Documents related to the policy development process are exempt from FOI." And I'm grateful for that additional information. I certainly didn't feel, at once, without further thought, "There is no problem." Nor, to be utterly frank, as we hear those papers from Thatcher's era are, do I now. For they strike me as a extreme important piece of empirical data. Strange that like climate it'll be 30 years before we know the truth about how the records are being kept now. That magic number once.
Despite my knowledge that Bishop HIll is very committed to a different position on FoI I think it would have been wise to leave out the "There is no problem." I see trade-offs in this area. I'm delighted Moore has dared to put one side of the argument so powerfully. But how should the digital revolution be taken into account. I hope wiser heads than mine are really grappling with that inside Whitehall.
As I said, I have no problem with openness in public affairs but one result of the FoI and Climategate is that if climate scientists feel the need to hide declines, redefine peer review, or get editors sacked, be absolutely sure they will not be putting it in an email.
So at the end of the day, where has that got us exactly?
So how are they going to send a message to the editor of a magazine to put pressure on? Ring him or her up?
The plotting might, possibly, be hidden. The actual actions required – nasty letters, revised papers in accordance with dogma etc – cannot be hidden.
These people are not Mafiosi. They are not going to spend their entire professional lives doing everything by back-channels and in person. Especially since they live on different continents.
Yes, they might use personal e-mail, but they'll slip up one day and cross over, since it is really hard not to.
This official debate, and its conclusions and recommendations, on the guidelines for the publication of political memoirs may be of some interest in this thread.
http://www.publications.parliament.uk/pa/cm200506/cmselect/cmpubadm/689/689i.pdf
However, I do not know whether these recommendations subsequently made it into a legal obligation.
Mike, Mooloo et al: the openness of scientists should go way beyond the requirements of FoI. It was only an afterthought for Steve McIntyre and others to use it and rightly so. This shows how substandard climate science had become. James Lovelock has spoken out well on this. Lindzen says quite simply that the whole field has become corrupted. We shouldn't confuse the two areas.
It really disturbs me when people on BH start to argue that because you can not guarantee that a rule or a law will actually prevent wrong doing then the correct conclusion is that the rule or law should not have been created.
The government in the UK is currently as opaque, as corrupt, as self serving, as irresponsible and as uncaring of public opinion as at any time in the 64 years of my life. To hear people making excuses for them is vomit inducing.
Politicians are in a comfort zone created by their common desire to be electable rather than to do the right thing. Obviously "the right thing" varies according to your political beliefs and that is how we used to decide how to vote.
There needs to be some sort of cataclysm in UK politics and the least painful would be for UKIP to become a major player, failing that, revolution would seem the only alternative :(
FOI, in its present form, is the lovechild begotten by the union of the digital revolution and the need for politicians to sow their seeds of PR spin!
The former will always be controlled by the desires of the latter.
History will be re-written as it always has been but far more easily than before!
Bits and bytes on an Orwellian server farm have no conscience, no memory and zero guilt unlike the chemicals scribbled onto tangled paper.
I've seen already the re-writing of the impending 70's ice-age that claims that it never existed.
But it did!
Dung,
"It really disturbs me when people on BH start to argue that because you can not guarantee that a rule or a law will actually prevent wrong doing then the correct conclusion is that the rule or law should not have been created."
You and I are of the same era and I agree with your sentiments,
We are now aware that politicians, journalists, doctors, lawyers, BBC DJs and fundraisers aren't any better than the rest of us, and shouldn't be held in the high regard they were when I was a boy. The FOI gives the opportunity to dig a bit and see what they're up to and how they are trying to con us. Finding out 30 years later in a biography by an author in the 'same camp' is a bit too late.
As a former bureaucrat, I can attest to the fact that FOI has pushed much of the documentation of issues "off-the-record". I remember making one simple personnel request on an official govt form, and having the form returned to me by a higher manager with the comment that the info that I entered into one box on the form should be removed from the form and written in hand on a (removable) yellow sticky note. This was to deal with potential legal issues involving labor relations. But when it comes to issues like the scientific basis for policy, all of the data and calculations and technical analyses should be fully available. They form the basis for the policy, and should be entirely scrutable.
I still have a copy of EVERY email I ever wrote while I was a bureaucrat, and I have no problem with having any of them see the light of day. However, I am sure that the fear of seeing an email show up on the front page of the newspapers under a lurid headline keeps people from saying in writing what they really feel about policy issues. Most bureaucrats get used to it - it is part of the job. You do business over the phone, or at lunch, or on the airplane, and you only write down the results. What you don't do, however, is write down untruths. Never. That is the surest way to ruin.
The FOI won't stop people, politicians in particular making notes and writing memoirs as soon as they are out of office thereby giving the hint for FOI requests.
What might be seen now as self protection can later be used to reveal what was done and why, Many times in my working life I asked to receive written instructions to do something. Not because it was illegal but because there was a potential for significant costs down the line. Usually it involved relaxing the parameters on test which should require documentation, but there was always someone who wanted it done in a hurry. Usually we got the official request/concession to modify the test if not we tested to specification.
One multi-national I worked for was fined a large amount for bribing government officials, there after everything possible was archived, as a precaution against future problems, but it also becomes available for FOI.
Since most politics is the making of policies that are unnecessary and of little effect or are unnecessary and of harmful effect then it would be better if a political historian had nothing to write about at all.
The world goes by itself: 'Laissez-faire, laissez-passer'. Let the historian find work in the study of the cultural and economic development of free people.
Hang on, Dung, and I'll fetch you a bucket.
Yes, the government is as self-serving and as uncaring of public opinion as I have ever known it and I can give you a year or two.
The activities of the last shower, barely improved by the current crowd, are very high on the list of reasons why I no longer live in the UK. So what am I defending, precisely?
One thing I am not defending — and whether that makes you nauseated or not, I really don't care — is the Freedom of Information Act in its present form. The intention was good but the drafting was poor and the thinking behind it virtually non-existent. It was gesture politics like the Dangerous Dogs Act and Cameron's current brilliant idea to fine prisons if their inmates re-offend.
And for why?
Because — as with every government since 1992 — no-one has bothered to take into account the Law of Unintended Consequences, the only Law which can be guaranteed to apply to every attempt by government to dictate human behaviour. The more you try to enforce rather than to persuade the more you meet resistance and the more people will try to evade. Just look at the tax system.
I'm not saying it's right; I'm saying it's human nature.
Mooloo
Oh come on! The startling thing about the emails was the amount they did commit to electronic media.The rule has always been, "if you wouldn't want your boss/wife/mother to read it,don't put it in an email." And add to that the media and bloggers with an axe to grind.
Be sure they've learnt that lesson. Phone calls, gentle hints dropped in the right places, private scribbled notes, but nothing on anything that can be called an official record. You don't need to be a mafioso to understand that; it's been standard practice in business for decades, if not longer. Why do you think trying to get evidence of cartels is so difficult?
Mike
I have to admit that I do not know the strengths and weaknesses of the way the way FOI was set up and I am sure you are correct that it could have been done better. However what you have said seems to indicate that however well it was set up; politicians would circumvent it one way or another.
There seems to be a common belief amongst politicians that the correct way to run the country involves behaving in a way that taxpayers either could not understand or would mistakenly perceive as wrong doing.
As a former politician or beurocrat yourself can you explain what these behaviours are?
PS
Thank you for the bucket ^.^
Dung
You've got me wrong. I was never a bureaucrat and the closest I came to being a politician was as a member of a community council where party politics was (in theory) taboo. My experience of politics is largely from the other side of the fence as a reporter.
However there were instances when as community councillors we were able to consult off the record with local authority members and it often was very helpful. All open and above board but that didn't stop some people complaining — mainly because they weren't included. The alternative is decision-making in the dark or "accidental" meetings in the pub.
The only time I ever submitted an FoI request to my local authority it was knocked back by the Chief Executive because part of the matter I wanted released referred to "a named person". I knew that already; the named person was me!
I'm not saying that anyone is going out of their way to circumvent the FoIA though there are some politicians — tarring them all with the same brush is quite wrong — who may well find excuses if possible to conceal behaviour which might be wrong (in which case sooner or later the law will catch up with them) or is more likely just embarrassing.
The only recorded instances of deliberate attempts to circumvent or ignore FoIA appear to be the ones we all know and love.
The point Moore was making — with which I am inclined to agree, no more and only up to a point — was that there is a danger that civil servants will be reluctant to give ministers the sort of advice or information that could be to the detriment of good governance if it became public knowledge prematurely.
And we pay our civil servants and our ministers, not you or me or anyone else, to take those decisions and (please God) get them right. Which they are less likely to do if a ravenous media and/or the blogosphere is constantly peering over their shoulders nit-picking in 60 million different ways.
A look at the comments to the on-line edition of any daily newspaper should serve as an awful warning!
PS You're welcome.:-)
Heaven forbid that having taken the public shilling, climate scientists should imagine themselves immune to unreasonable searches and seizures of their private papers and property , physicsl and intellectual, by corporate- spirited searchers and seizers.
That sort of thing might require a Bill of Rights, a Constitution, and even a Bar posessed of the idea that barratry is at the very least a misdemeanor.
As an Australian, I am not competent to comment on the ins and outs of UK FOI laws, But, as a former bureaucrat working in sensitive policy areas, with our version of FOI in play, perhaps readers will allow me to make a few general observations.
Firstly, there seems to be a false dichotomy in some of the discussion, along the lines of the 'if a tree falls in the forest ...' question. From the public's point of view, the fact that bureaucrats and politicians are frank on paper (or electronically) is irrelevant if they are unable to access that material. It effectively doesn't exist anyway. There is no doubt that FOI makes actors more cagey and careful about what they record, but even so there are plenty of examples of FOI bringing to light things which simply had to be recorded for one reason or another. That is an improvement on the total cone of silence which formerly covered the internal workings of government.
Secondly, the nuances of political and bureaucratic decisionmaking have always been off the record. C P Snow's novels about the workings of Whitehall, and university colleges, more than 50 years ago are as true now as they ever were. It's not a conspiracy of silence - it's just how business is done.
In Australia, we have inherited the UK model whereby in principle everything is secret unless the law says otherwise. It is easy to forget that the US, for example, works from the opposite presumption. It would be hard to make a case that the US has been a failed State since adopting its Constitution because of that. There are a lot of cultural factors at work here.
I think that the core of FOI has two major components - the rights of the individual vis a vis the State, and financial accountability. The first is by far the largest component of FOI requests in Australia. People want to see their personal records in order to challenge, or verify, decisions that have been made about them. The second is weakened by arbitrary use of 'commercial-in-confidence' exemptions which circumvent the citizens' right to know how their taxes are being used, or how regulatory decisions are made.
There will always be tensions between the need to have frank internal discussion and the right of the public to know. But, frank discussions will happen anyway, and I submit that they are not really what FOI should be about. FOI should be about accountability. Policy decisions can be dealt with at election time.
Johanna
That was a great summation of your FOI and of FOI in general. However right now in the UK absolutely nothing can be sorted at election time:
First all three "main" parties are agreed that we should be inside the EU therefore the people who make most of our laws can not be voted out of office.
Second all three parties are agreed on pretty much everything else. The only real difference is that the Liberal Democrats and the Labour party believe that if there is a need then we should spend money on it and are not concerned with small matters like whether or not we actually have the money. Conservatives still have some regard for balancing the books but it seems to be less and less important with every year.
They all fiddle their expenses and fill their wallets courtesy of the taxpayer.
Mike Jackson: "As I said, I have no problem with openness in public affairs but one result of the FoI and Climategate is that if climate scientists feel the need to hide declines, redefine peer review, or get editors sacked, be absolutely sure they will not be putting it in an email.
So at the end of the day, where has that got us exactly?"
I agree insofar as most of the Climate-gate emails were pretty much as I expected, such that I didn't even bother to read any for over a year after they first appeared. That they had private doubts and disagreements should surprise nobody with any kind of a technical or scientific background.
But we DID find out about hiding declines, redefining peer-review and getting turbulent editors sacked, which I didn't expect. Would we have done so without the existence of FOI laws or citizens prepared to invoke them? I suspect not.
I expect FOI requests are a sometimes burden for many decent types, but probably much more worrisome for the indecent. If the duplicitous, the deceitful, and the dishonest have to work harder at covering their sins then they will have slightly less time to spend committing those sins.
Further to my last comment, I would add that though the UEA climate-gate emails were "hacked", it was probably the FOI laws that brought about their release. I am inclined to believe that the "hacker" was an insider who knew that the FOI laws were being systematically broken. Knowledge that the information had been legally requested, and illegally denied, may have emboldened someone with access to perform what they considered to be a morally, ethically and legally justifiable act of "whistle-blowing".
Speculative, I know. But external hackers would probably not be aware of FOI requests, nor needed them. [Though the Norfolk Constabulary did pursue that line of inquiry by confiscating Roger "Tallbloke's" computers on the grounds of him being a Sceptic-blogger who had exercised his rights under the FOI laws.]
Also the "hacker" appeared to have spent some effort redacting details that would not have been made available through the FOI orders. Was it perhaps information that had already been prepared internally at UEA, ready for release, before the smack-down was laid on the process?
michael hart
You're right (I think). It probably was FoI that eventually got us the inside information on what UEA were up to but — if my contention above is correct — only because they were stoopid!
They plan to intimidate reputable journals to prevent unwanted views being published; they plan to use their position in the IPCC to determine which papers will be deemed to have been peer-reviewed; they fiddle about with their graphs and data to hide an embarrassing divergence between proxy and observed (and there are still people who don't grasp the implication of this, namely that a disconnect between proxy and observed at any stage must throw the reliability of all the proxy data into doubt), and they commit all their discussions on these things to emails??!! Duh!
Are they mad?
See my comment about cartels!
I agree pretty much with johanna. What most individuals want is access to their personal records though whether they would be pleased to know the meaning of acronyms like NFN, CTD, or GROLIES on their doctor's notes is doubtful!*
The trouble starts with the conflict between "commercial confidentiality" — which quite a lot of governmental authorities have always used as an excuse not to let the public know what is going on — and the (incorrect) assumption that because you are a taxpayer you are automatically entitled to know all the minutiae of what government is up to.
Rather like suggesting that you personally are entitled to keep tabs on the activities of a local schoolteacher because you are a taxpayer and she is paid from the public purse. I use that example deliberately because I know of an instance which was very similar. Before you scoff step back and ask where on this scale of things you draw the line. That particular character drew it where most of us would agree was unreasonable and paid the penalty but where exactly is that line?
I repeat: I am in favour of FoI; I just don't think it is the panacea some people believe or want it to be and I don't think it ever can be as long as we all have different ideas about what we honestly believe it is meant to achieve.
* NFN (probably the best known) Normal for Norfolk
CTD Circling The Drain (not long for this world)
GROLIES Guardian Reader Of Little Intelligence in Ethnic Skirt (I think I know who he meant!)
The great problem with FOI is that things which emerge are treated with sensational reporting by those with an agenda. In real records of real events I would expect to see errors, uncertainty, bias. What is important is to reveal them as they are. Routinely, regularly, warts and all. Unfortunately some people really cannot stand to be seen to make a mistake and will not admit any sort of uncertainty. It is that which has got us where we are today. Policymakers require informed advice. They really do not want to hear 'I am not sure' from their advisors. So we end up with fake certainty which if challenged is reinforced with more and more bluster. Familiar?
rhoda:
I don't it's only or even mainly ego. As Alistair Campbell would tell you (and he should know) it's the 24-hour news cycle plus Twitter, vastly extending the reach of the chatterati and not always increasing its combined intelligence. A small and momentary mistake or error of judgment is blown out of all proportion. Or even calling a policeman who refuses to open a gate for you that he has in the past a 'pleb'. I really don't care - but those within the police that currently feel terribly wounded by the current administration saw their chance. (And given that Cameron's brilliant statement in the Commons on Hillsborough is a big reason that the big blue cheeses are so offended, I am passionately with the administration on this one. At least that's the way I currently see it. But one has to ignore many of the scandals de jour to see the real rotting carcases, in my jaundiced view.)
Richard, in my fevered imagination were I in the hot seat I'd ignore the daily political agenda and the 24hour news cycle and just do things right.
Unfortunately in my experience when you find yourself in the shoes of someone you have criticised you find that options are limited and you tend to act as they did.
To quote I think William Connoly, when you want to criticise someone, walk a mile in his shoes. Then you're a mile away and you've got his shoes.
rhoda
It's virtually impossible to ignore the daily agenda (which anyone who follows 'Today' will tell you is set by the BBC each morning — but only because the politicians let it).
Try it and you have the media pouring demands for the information they want (what the public might want is irrelevant) into your mail box.
The main reason why government at the moment is looking lost (apart from the intrinsic difficulties of coping with matter and anti-matter in close proximity in a coalition) is that Cameron is being bombarded day in day out by conflicting opinions and demands on every subject imaginable and he hasn't got the steel that Thatcher or Wilson had to resist them. Both those PMs knew what they wanted and where they were going.
Cameron is a genuine "heir to Blair", as he wanted to be, in not having any sort of real idea of where he is taking the country or where he wants to take it.
In the modern world that leaves the gate wide open for any number of vested interests to fill the vacuum with the media leading the way.