Information collected on behalf of citizens is not available to the citizens. This statement sets the stage, as it embodies the philosophy behind FOI, and instigates a discussion around proactive disclosure.
“Article 19: The Public’s Right to Know – Principles of FOI” opens with “Information is the oxygen of democracy“, a statement which few can argue contrary, yet governments still conduct the bulk of their duties away from the public eye.
The principles set out in “The Public’s Right to Know”, set the backdrop to achieve maximum openness, but alone they are not enough. It is our duty as citizens, of a democratic society to breathe life into these principles by applying them in practice and studying their characteristics under different circumstances.
Law is intricately woven into the fabric of society, for it to work it needs to be drafted in such a way that takes into consideration the society it governs and uses it. Open Data, Proactive Disclosure and Freedom Of Information is the bare minimum. Citizens should not only have access to data but also accessibility, in that, the threshold for understanding information should be lowered with the aid of technology and visualisations.
Proactive Disclosure: An Introduction
We live in a time when trust in government is near an all-time low. In Ireland, a survey conducted by the Irish National Election Study shows that the confidence in political parties only surpasses the public’s trust in banks which comes in last. When another more recent survey was carried out by the Irish Examiner, they found that 80% of the public has no trust in political parties. This claim is also supported overseas by the National Election Study in the US, which hold records between 1958 and 2017; they report that only 18% of Americans today trust the government compared to 73% in 1985.
A report by the OECD says that without public trust governments cannot function properly. To alleviate this, laws that establish a right to information are being enacted. FOI is one act that puts this into law; it allows members of the public to request information from public bodies. Giving citizens the power to hold governments accountable. One criticism that repeatedly comes up in literature is that reactive disclosure fails to promote an open government, and leaves much to be desired for transparency and accessibility. To mitigate this critique most FOI acts, have a provision for proactive disclosure, whereby public bodies are required to release reports about their activities.
Proactive Disclosure in FOI
In Ireland, proactive disclosure is read in; Freedom of Information Act 2014, Chapter 3, s8, “Publication of Information about Public Bodies” which reforms s15 and s16 of the 1997 act, to adopt a hybrid system of disclosure.
A Hybrid system offers two modes of publications; A “publication scheme” approach and a categorised list of obligatory information to be published. McDonagh identifies three sets of requirements under s8 of the 2014 act and another category in the code of practice for freedom of information.
A publication scheme represents the minimum information that must be disclosed as set out in s8(1). s8(2) details what the publication should include; this approach is similar to that in the model act, whereby in the Model Act a categorised list is given of what should be disclosed.
In comparison, the national legislation goes a step further; s8(3) sets up a six-month publication obligation for each revision under s8(7). s8(5) sets up a public interest regard for publications made, in accordance with s18 of the model act. s8(11)(a) provides for training of staff “...for the purpose of facilitating compliance by those bodies with this Act.”.
Finally, Comparing s8(1)(2), against Rec(2002)2, Principle XI. The national legislation does well to cover all the recommendations made. Unfortunately, a “publication scheme” model is often limited to the demands laid out in the act. Such is the case in s8.
Open Government Partnership
The Open Government Partnership (OGP);
“is a multilateral initiative that aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.”
In May 2013, the minister for public expenditure and reform, submitted a letter of intent to the OGP on behalf of Ireland, as directed by the government, to join the partnership. Irelands first OGP action plan was subsequently published in July 2014, laying out the governments intentions. Amongst which was Open Data.
Although both Open Data and FOI deal with the right to know, Open Data takes a radically different approach. While FOI is considered ex-post, Open Data is ex-ante, Noveck says;
“By fostering public engagement, open data shifts the relationship between state and citizen…to a collaborative one… to solve problems together.”
Whereby proactive disclosure obligates public bodies to release information, Open Data takes a less litigative approach and promotes a collaborative engagement between citizens and governments. While FOI is based on the right to know, Open Data is driven by technology, Bovens says “Cognisance is far more important than formal legality…”, and this is where Open Data comes in.
In an information age where everything moves at lightning speed, and citizens are used to having information at their fingertips, governments need to keep up with educating and informing the public. By putting in place a system which is flexible enough to work for the needs of an information society, the trust in government will slowly but surely grow.
Open Data sits at a new frontier; Citizens and governments are working together to generate new value from datasets previously unused. Engaging citizens to create new tools, and model data to make it work for them promotes open governance by lowering the threshold for understanding and accessing the information.
Thus far the onus was always put on the government; Open Data suggests a shift, Technologist and data scientists can use datasets provided to generate new reports, and easier visualisations, thus making it easier to get informed. It is no longer the sole responsibility of the government to inform the public, but rather a collaborative effort between technologists, citizens and governments.
Thus far, in literature, authors have presented FOI as an act which has been indispensable to the development of a democratic society. Regrettably the implementation of which has fallen short; “bureaucratic roadblocks”, “long processing times”, “excessive replication fees”, and “catch-all exemptions” have undermined the fundamental values of the act. It must therefore be considered if the path forward is FOI, or maybe it should be removed as the lynchpin of transparency and a new path forged.
While creating an entirely new regime of access to information will be challenging and costly, lessons learned from past mistakes can be drawn to forge a better act. A governmental shift in attitude, reinforced by affirmative disclosure can make the need for an FOI act redundant.
Appreciation none the less must be made towards the complexities of FOI, and the detail to which it is written. It takes into consideration all the aspects of government and tries to make the best guess of how it will be used and what needs to be genuinely protected. In some cases, having adverse effects in that it protects information which should, for the best interest of the public be released.
Although hardly any differences exist between the model act and national legislation, the exemptions imposed at a national level to safeguard security, creates for a limited scope. Another conclusion drawn from this research is that FOI has been worded in such a way that it requires professionals to under- stand and use it, as such making it inaccessible to a portion of the population.
Leading off from that, data needs to be more accessible, and not just available. If FOI and proactive disclosure are to be still used, steps must be taken to lower the threshold for understanding the information, thus making it more accessible.
Finally, Proactive Disclosure allows the government to control the narrative and provide the readers with reasoning and background for decisions. Although most governments err on the side of caution when releasing information, with proper training and a proactive attitude to open governance, more transparency can be achieved.