From ACLU FOIA documents at (American Civil Liberties Union, Freedom of Information Act Requests, to the Central Intelligence Agency Office of Inspector General) http://www.aclu.org/national-security/torture-documents-released-10302009 CIA Office of Inspector General report excerpts U / FOUO = Unclassified / For Official Use Only TS = Top Secret (Photo credit: Wikipedia)
The United Kingdom relies upon three connected parts to support a transparent government. The first part is the permanent infrastructure of civil servants. The second part is having the opportunities to publish and share information. The third part is the civil society actors, such as the press or campaign groups, that are capable of pursuing prolonged campaigns to disclose information.
In the UK, all three parts exist with varying degrees of success and strength. However, each actor is changing. The freedom of information legislation is under review. What remains to be seen whether the government’s proclaimed transparency will deliver what it promises. The question is open because it is not clear whether the various actors are supporting or hindering an open government.
The political establishment in the UK resists the transparency agenda. They want the agenda to fit their purposes. By that, I mean the government wants to publish the information it wants to disclose. When it does that, it declares itself transparent. By contrast, the freedom of information act allows the public to ask the questions and judge the quality of the response. As such, it is unpredictable. The public are harder to contain or manage. Freedom of information requests are an example of direct accountability. As a result, the establishment has resisted freedom of information requests. They do not want to be accountable to the public, except on their own terms. They would rather be accountable to other political actors. The reason for this is that within the political establishment other political actors can be “managed”. They are politically and administratively vulnerable to influence. To put it differently but directly, the ethos can be seen as “you scratch my back, I will scratch your back”. However, transparency can still occur.
The civil servant infrastructure can foster openness if there is a “cascade of transparency”. A request sets off further internal disclosures. The transparency cascades through the organisation. In some cases, the internal transparency is only there to avoid blame. In the UK, we have yet to see a William Leonard emerge. He refused to classify documents to protect them from disclosure. His decision forced the US government to track and disclose, as well as capture the decision process along the way, regarding the abuse of detainees. (p.1204). To put it directly, who is the UK’s “William Leonard?” To some extent, the Official Secrets Act restrains civil servants as does the culture and ethos of the civil service.
This is where bloggers and persistent FOI requests can have a positive impact. Information can be disclosed within an FOI request that leads on to wider issues. At the same time, it can create transparency *within* the organisation as people become aware of the topic because of the request for information.
For the FOIA to be strong, the media have to be willing and able to use it. A strong media makes sure FOIA is robust. In the UK, the information may be available, but it does not restrain a government or hold it to account until the public become aware of it. The habit and tradition of publishing routine information, which allowed many of the US “secrets” to emerge, has still to develop in the UK. In one sense, it could be under threat given the current post-legislative scrutiny of FOIA. The more the UK has routine disclosure of government (public) information, the more chance for transparency to develop. The internal information is needed so that it can be made available from within the organisations to create corroborating information outside the organisation. Yet, for that corroborating material to have its full effect, there has to be actors ready and able to sustain the prolonged campaigns to disclose information.
The recent tribunal decision will weaken persistent requests to hold organisations to account. Journalists benefit from the work of people making requests for information. When there are persistent requests for official documents, it raises questions. The information, when disclosed, is accessible to everyone. A journalist can benefit because partial disclosures in one area may lead to disclosure in other areas. As mentioned earlier, the disclosure can create a cascade of transparency. The FOI request can be used as a tool for improvement.
FOIA has only existed for seven years in the UK. In the US, it has been around for 48 years. What this means is that FOI requests are still creating the network of knowledge. The network is made up of those responses that authenticate other disclosures. In turn, they enhance the understanding of issues that were or are largely ignored. In a sense, may be happening is horizontal disclosures around the £500 spend lists. For some organisations, the spending may create transparency within the organisation.
What is needed to make that knowledge network, created by FOI requests and routine publications, are the press and campaign groups. These are groups that are capable of pursuing prolonged campaigns to disclose information. On both sides of the Atlantic, organisations that promote transparency face similar challenges. In the US, the Federation of American Scientists (Steven Aftergood) has worked hard to support a level of transparency around government documents. In the UK, the Campaign for Freedom of Information (Maurice Frankel) shares a similar role. Both have fought hard to sustain the fight for transparency and openness. However, their work is only a small part of what is needed to keep governments open and, ultimately, democratic.
The transparent political culture is still developing in the UK. The parts are in place. What is still needed is for them to work together. The post-legislative scrutiny of FOIA will have an important institutional influence. If it is to succeed, the UK needs to strengthen, not weaken, its freedom of information legislation. If the legislation is weakened, especially if authorities are given enhanced powers to refuse requests, then transparency will be weakened. Without transparency, there is no accountability. Without accountability, there is no democracy. The choice is ours, we can allow the freedom of information to be weakened or we can seize the opportunity to strengthen democracy.
(For an extended discussion of these points, see my paper Making Power Speak: The Power of Freedom of Information from a Practitioner’s View, which is available on the Social Science Research Network www.ssrn.com to download free.)
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