Interview with Graham Smith, Deputy Commissioner and Director of Freedom of Information for the UK

In May, Duane Mombourquette, IPAC Saskatchewan Board Member and Executive Director of the Saskatchewan Access & Privacy Branch, had the opportunity to correspond with Graham Smith about his role as the Deputy Commissioner and Director of Freedom Information on a wide range of issues relating to Freedom of Information legislation.

Mr. Smith, as Deputy Commissioner and Director of Freedom of Information in the Information Commissioner’s Office for the United Kingdom, you are responsible for your Office’s role in monitoring and enforcing Freedom of Information legislation across the United Kingdom. That seems a daunting task. In general, how are governments in the United Kingdom performing under Freedom of Information? Are there some challenges that are greater than others? Do you have any real success stories?

It’s a mixed picture. The UK FOI Act covers a vast range of public bodies, from large government departments, all levels of local government, National Health Service, police and the state education sector. Ensuring that public authorities are aware of their FOI obligations is itself a challenge. Performance is generally good, with an increasing willingness to disclose information which can be released without any harm. Delay in responding is the biggest single issue and then if the request is refused it can take a while to pursue a complaint through the system. But even here, it’s an improving picture.

The key success is the extensive use of the FOI to obtain information which previously was kept secret. There are numerous examples. Consumers have benefitted from the release of information about restaurant hygiene reports, vehicle test results and hospital infection rates. In addition there are many cases where local communities have got hold of information about key development and land use proposals affecting their area.

Great Britain is often portrayed as a leader in Open Government. Can you describe for our readers the state of Open Government in the United Kingdom? What has been accomplished and where is it headed?

The key here is proactive publication of information, usually through websites. The FOI Act provides for this through publication schemes. The ICO has approved a model scheme, backed by definition documents for specific kinds of public authorities, setting out what must be disclosed. The current government has made transparency a key theme of their coalition agreement. The open data agenda is being led by the Minister for the Cabinet Office, at the heart of government. For once there is a clear leadership message for the government in favour of greater transparency and the maximum disclosure of information compatible with good government. It is early days for seeing how this plays out in practice, but the initial signs are very positive.

Open Government can mean different things to different people in different locations. From Freedom of Information legislation, to proactive disclosures, to opening datasets to the public. Is there a perfect vision for open government? Is there an ideal state that we could be working towards?

I’d hesitate to describe a perfect vision, but I’m clear that it’s made up of different components, not just one of those you’ve listed. Proactive disclosure, an enforceable FOI regime, open data programme and the re-use of datasets for public good are all complementary concepts. They each reinforce each other, so the vision is the maximum disclosure, with appropriate free re-use opportunities and an effective FOI regime for information which is not proactively disclosed.

What is your role in regard to Open Government initiatives in Great Britain?  Does the Commissioner’s Office become involved in Open Government initiatives directly? Is there an oversight role for Open Data or proactive disclosure?

This is an exciting area of change for us. So far we have been involved in discussions with officials in government who are taking the agenda forward. A new Act of Parliament, just recently passed, includes a provision for datasets published in accordance with a public authority’s publication scheme to be released in machine-readable format if required. The Commissioner is responsible for enforcing these provisions, so now we are directly tied into the agenda by legislation, as well as constructive dialogue.

Making data available to the public proactively can be a very resource intensive exercise. It seems likely that as governments move more and more towards open data schemes, they will need to be selective in regard to where they put there efforts. How do public bodies in Britain and elsewhere decide where to focus their efforts? How do they determine what data to make available and what to hold on to perhaps until a Freedom of Information request is made?

Good records management is essential to the effective operation of any access to information regime. The National Archives gives excellent guidance on this in the UK and there is a wealth of useful advice on their website. With the exponential growth in the information we all produce and consume, it’s important not only that proper records are retained and can be easily retrieved but that ephemeral, transient stuff is disposed of promptly and efficiently so systems don’t get avoidably cluttered. Past FOI requests can give an indication of what might be demanded. It’s not always easy to predict what the public will want to see, but if it’s been legitimately and appropriately disposed of before the request comes in, there’s little to be done except take a lesson for the future.

One of the challenges often faced when preparing data to share in an open data environment is the need to protect privacy while at the same time still providing data sets that are useful. How does Great Britain address this challenge? Do you see advances in this area in the future, whether through technological or policy?

This is a big issue for us, particularly as the Commissioner regulates data protection as well as FOI. With data mining and mashing techniques there are legitimate fears that individuals might be identifiable from apparently anonymous datasets and some sensitive personal information inadvertently disclosed. The ICO is currently working on an Anonymisation Code of Practice to help tackle this issue. A draft for public consultation will be issued very shortly on our website – Keeping up with, let alone keeping ahead of, technological advances is one of the greatest challenges in information management.

In the United Kingdom there has been some debate about the effectiveness of Freedom of Information legislation.  On the one hand, former Prime Minister Tony Blair – whose government introduced the legislation, has written in his memoirs that the Act was a mistake, that it undermines sensible government. Others take a different view, suggesting the Act is working as intended.  Is there anything to Mr. Blair’s comments? Is it possible that governments change their behavior as a result of FOI – in part defeating the purposes of the Act, or do you think that on balance the Act is working as it should in Great Britain?

FOI has its enthusiasts and its critics. The Justice Committee of the UK’s House of Commons is currently conducting a review of the impact and effectiveness of the FOI Act. Its conclusions will be very interesting. Certainly the evidence presented to the Committee has varied. Some suggest that there is a definite chilling effect on civil servants and ministers, in terms of policy discussions not being recorded or not being had at all for fear of disclosure under FOI. But there’s little or no hard evidence of this. We certainly recognize and respect the need for safe space in which to development policy in sensitive areas and the need to protect international relations and national security. We believe our decisions do this, but we also respect the fact that others may take a different view of where the public interest lies. On the whole, I think the Act is working well. There will always be marginal cases and it’s the controversial ones that get noticed, but these are exceptional. The right of appeal against an ICO decision to a Tribunal provides a further safeguard and ultimately there’s a government veto to override a decision of the ICO or the Tribunal in the most exceptional circumstances.

What advice would you give to our readers back in Saskatchewan who may be interested in building an Open Government regime, whether in a small local government or a large public body?

To be clear about red lines, to recognize that once released data can’t ever be retrieved, to have proper respect for the private lives of individuals and to appreciate that the potential for open data tomorrow will always be greater than it is today.

Graham Smith was interviewed by Duane Mombourquette, Executive Director of the Access & Privacy Branch with the Saskatchewan Ministry of Justice and Attorney General