The uneasy relationship between Freedom of Information and open data
Freedom of Information (FOI) has always been a tricky area for governments, a delicate balance between accountability and exposure, with successive parliaments around the world tweaking their national and state FOI laws in attempts to prevent disclosures damaging to various governments of the day, while also meeting public and media demands for transparency.
We’ve seen the federal government in Australia retreat from some of the Freedom of Information (FOI) framework established under former governments, including the effective abolition of the Australian Information Commissioner by budget cuts, when legislation to end the office failed to pass the Senate.
With the three appointed Commissioners in the Office now having followed most of the rest of their staff into new rules, we have a temporary Australian Information Commissioner, for three months, as the government sorts out how to finally end the Office and transfer the function to a more formal, costly and time consuming review process.
This is far from the only tweak in recent times, with Australian FOI legislation also modified in 2013 under a former government to exclude parliamentary service agencies from FOI. This was termed fixing a loophole, that unfortunately allowed the public to request information such as a former speaker’s expenses in detail.
Similarly in the UK it appears there’s a retreat on FOI occurring, with the UK government calling an enquiry into FOI to look at whether they have the balance right.
What’s interesting is that the UK is using its open data presence as part of the justification for the enquiry.
Open data and FOI are not always the same thing. Open data focuses on quantifiable datasets, generally numberical, that represents a current or past state for a given government service, or from data collected by government on a nation’s social, economic or environment state.
While open data can expose issues in government, it is often used to identify opportunities and gaps that can be explored and improved on – leading to better services and outcomes.
FOI, on the other hand, is often far less about data and far more about correspondence, decisions and who made them. While open data may expose bad decisions, FOI exposes who made those bad decisions and, sometimes, the basis on which they were made.
That’s why data is generally easier for government to release openly than documents. Exposing a bad decision can become a basis for better decision-making, while exposing a bad decision-maker can breach the public sector’s responsibility to protect the government of the day, and their own senior staff.
I’ve previously spoken about the risk of governments using open data as a ‘cover’ for tightening FOI requirements, and in the UK case above, my concern appears to be being realised.
I’ve not yet seen this explicitly in Australia, however with the poor scrutiny of government in the media and our weak civic sector, it’s likely to occur at some stage.
Don’t get me wrong, I think it’s fantastic to see the level of open data increasingly being released at federal, state and local levels across Australia. The snowball is rolling and we’re beginning to see some of the value that open data enables – both within governments themselves and in association with the communities they serve.
However effective open data release should not become the primary way in which governments engage with Freedom of Information, nor a rationale for broadening exclusions to FOI.
As for FOI, we really need to rethink it at a fundamental level, politically, at public sector levels and in the community.
Currently (and from my experience within government), often those outside government are seen as ‘the enemy’, seeking to point the finger at people within government and ‘bring them down’.
The reality is that government exists as part of society and must remain functionally effective and valuable. FOI can support this process, helping to identify issues and misconduct in order to improve trust in government and it’s effectiveness in meeting community needs.
However this can only occur if those within government – and those without – treat FOI in this manner, as an accountability and transparency tool, not as a threat to their integrity.