Freedom of Information Act is the grain of sand in an oyster of records that creates pearls of transparency

Records life-cycle consisting three stages: cr...

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An important actor has been missing from the recent discussions around the future of FOIA. The missing organisation is the National Archives. The National Archives did not give any written evidence to the post legislative scrutiny of Freedom of Information.  Yet, FOIA and records management cannot be separated. The FOIA review has focused on the cost and the need to charge a fee to cut requests.  In this regard, the focus has been on the demand side of the FOIA equation.  The supply side, records management, has received little attention.  For example, of the 113 written submissions only 7 mention records management and only one (number 100) gives it an extended treatment.

The focus of the review appears to be on the decision making and the “politics” of FOIA requests. The approach may miss the underlying mechanics of requests. What make the government “machine” work is the records management.  The National Archives has enjoyed its increased status because of FOIA, which shows how important records management is related to FOIA.  In that sense, FOIA has had a direct role in making sure organisations are better at keeping records and keeping them organised for the public.  All of this has helped increase the accountability and, ultimately, democracy within the UK.  Yet, what is still unexplored is how FOIA and records management improve performance and ultimately decision making across organisations.  For example, requests can often point out areas where an organisation appears to be operating less effectively. In that regard, FOIA requests can be used as an improvement tool.

For the moment, though, the focus has been on the “irritation” of FOIA. What we need to know is how it creates “pearls” of transparency. Requests can be usefulness for democracy and accountability. An example of how FOIA helps create accountability and changes an organisation approach to an issue can be seen in the FOIA requests for empty properties in Camden.

When we think about accountability or improved democracy, we should consider the wider relationship between the citizen and the state.  In that sense, seven years is a short time when considering a cultural change between the citizen and the state.  If the government, and the people, are committed to transparency and accountability, FOIA needs to be strengthened.  The public need to be able to see inside of organisations.  Interestingly to the extent that organisations are already transparent, the fewer requests are likely.

 

Records are a government’s skeleton: Governments die. Records endure.

To see inside an organisation, the public have to be able to see its internal structure. Records are the skeleton and information is the central nervous system of government. Both are needed to make it work effectively.  The public, the press, and politicians often react most to the information issues, yet the structure of the organisation, its approach to records management, are where the organisation’s success is found. Records management has been overlooked in part because organisations often see it as a separate issue rather than part and parcel of how they work. In that sense, government has been dealing with FOIA, without focusing on the information management and records management needed to meet the demand.

At a deeper level, FOIA and the wider transparency agenda also open up the organisation to itself.  In many ways, modern organisations are opaque to their own workers. In governments this is more likely to be the case because they work on a command and control system with an implicit, if not explicit, need to know culture.  What FOIA has done, as has the Transparency Agenda, is to make the organisations open to their own employees.  Across governments, between departments, we can see what Seth Kreimer called horizontal disclosures. As I have discussed, the FOIA is an important building block for creating an ecology of transparency across the country as well as within organisations.

 

Is the true cost of FOI is really records management?

At one level, one could argue, that the true cost of FOIA is records management.  The risk assessment driven by the cost of compliance and the cost of non-compliance shapes how many organisations respond.  From that perspective, increasing the cost of requests will cut the cost of non-compliance, which in turn will further cut transparency, openness and accountability.  To reduce access to information is to reduce democracy.

To the extent that records are not available or poorly organised, they create the “cost” of FOIA.  To put it differently, but directly, how much does an FOIA request really cost? In many ways, the cost is beyond the administrative work, it is a function of the risk culture around the records within an organisation.  To the extent that non-compliance has a high cost, an organisation will have strong records management.  Thus, FOIA appears to have a cost more because of the perceived cost of compliance (possible embarrassment) with records. Before the Act came into force most organisations were not ready, from a records management perspective, for the requests.  Even now, seven years later, organisations are still coming to grips with the demand.

Most requests seem to be for current information (information less than 3 years old).  These records are more accessible as they are more likely created and stored electronically. Thus, the “cost” has to be widened to consider the decision making process about disclosure.   The bureaucratic cost of dealing with accountability is intertwined with the records management health within organisations.  To a certain extent, better organized organisations have better records management. That in turn, makes them better at responding to requests. Yet, the reality is different because the presumption is not on openness but on the need to know, which reduces the need, or desire for effective records management. In that regard, the culture of the organisation influences its approach to records management, which in turn raises the cost of FOIA.

 

The challenge of transparency is sifting the detritus and the debris of records for the fragments of the truth often hidden in spin.

The FOIA is challenging because it is a tool for accountability.  In many ways it has a similar pedigree to complaints.  Both are partly about dispute resolution, complaints is about blame and thus blame avoidance. Yet, in some areas complaints now have to have a statutory setting to be resolved. However, the ethos of each is different, which may explain why FOIA has been used so much.  FOIA tends to attract more compliance, because the requests are purpose blind and they allow the organisation to tell their story and not trying to resolve a complaint. Complaints are usually lose-lose situation. The complaint reveals a service failure or shortcoming and the organisation does not, usually, want provide any evidence that will make the situation worse.  When blame avoidance meets transparency, perverse results emerge. Christopher Hood has an excellent article on what happens when transparency meets blame avoidance.

A democracy is healthy to the extent of the public’s ability to hold its elected officials and organisations to account.  One tool is FOIA. With it the public can consider the evidence that politicians and public organisations use to make decisions in the public interest.  It also allows them to explore the decisions in more detail after they have been implemented. To the extent that organisations and politicians are clear about their reasons and evidence for their decisions, the less there is a need for FOIA requests.  Unfortunately, most commentators seem to overlook the problem that FOIA requests are part of a dispute resolution system.  In many ways, the public are putting in requests because they have been stymied in other areas, which betray the shortcomings in complaints systems and undermines the initial promise. In that sense, FOIA has never been properly applied.

As part of a dispute resolution process, the FOIA as a tool of accountability is measuring an organisation’s skill and efficiency in answering questions.  As such, they show the organisation’s culture to the public and to its own employees.  In that sense, FOIA is a measure of an organisation’s openness, accountability, and responsibility to the public. Stopping the questions or making it harder to ask them will not improve accountability or the process by which FOIA creates accountability.  Increasing the cost of FOIA requests will have a higher “cost” than a financial cost.

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About lawrence serewicz

An American living and working in the UK trying to understand the American idea and explain it to others. The views in this blog are my own for better or worse.
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