Elizabeth Denham, an Honorary Professor at University College London, delivered the 2018 annual Jenkinson Lecture on 22 March.
In 2007, The Department of Information Studies at UCL established a new annual lecture named in honour of Sir Hilary Jenkinson, Deputy Keeper of the Public Record Office, who was instrumental in instituting the new Diploma in Archives Studies at UCL in 1947, the first such programme in England.
Ms Denham spoke about Freedom of Information and how there have been changes in public expectations for information as well as an evolution in tools and technologies.
Good evening, everyone, and thank you for the very kind introduction.
It is an honour to have been invited to deliver this year’s Jenkinson Lecture. It is also a real pleasure for me to have been asked to deliver a lecture named in honour of Sir Hilary Jenkinson, Deputy Keeper of the Public Record Office.
I began my career as an archivist, so I am well aware of Sir Hilary’s prominence as a leading archival thinker of the last century. While studying for my graduate degree in archival studies at the University of British Columbia, Sir Hilary’s theories about archives figured prominently in our reading. I remember closely studying his 1922 Manual for Archive Administration and debating the merits of his views in contrast to those of Theodore Schellenberg. It is therefore truly an honour and pleasure for me to deliver a lecture named in Sir Hilary’s honour.
My many years of work as an archivist and as a regulator have impressed on me that, especially given the rapidly changing landscape, both freedom of information regulators and practitioners, and archivists, have to be nimble and innovative in both theory and implementation. In this light, today I would like to share with you my thinking on key issues affecting archives and freedom of information (to which I will refer to affectionately as “FOI”).
Later in my remarks I will outline my current thinking about how my office can, through a strategy for information rights, help shape how our public institutions create, manage and disclose records and information. My office is working on this strategy now, and today I will outline some of the features that I consider essential for that strategy, and for the ongoing success of our FOI law.
I will also address the importance of archives and records management, their relationship to FOI, and how we might assist each other in tackling the challenges that increasingly beset our democracy.
Speaking of democracy, you may have seen the recent, well-publicised events involving Cambridge Analytica, Facebook and our investigation into data analytics for political purposes. It’s been a busy week for the ICO.
But back to the topic at hand.
Why FOI is important
Let me first share with you why I am convinced that openness of information, through FOI laws and other instruments, is vitally-important not only for government accountability in the moment, but also for the long-term health of our democracy.
Information is an asset, as our increasingly data-driven economies demonstrate. In economic life, those who control information benefit financially. In public life, information brings power to those who control it. The conditions under which individuals and institutions are entitled to control information directly affects how our institutions function.
Our parliamentary system seeks in large measure to control the actions of the executive. As the elected body representing all citizens, Parliament, as the legislative branch, is charged with scrutinizing the executive’s exercise of the authority and powers granted it by Parliament itself (and, to a degree, by Royal prerogative). Whether through the activities of Parliamentary committees, questions to ministers or inquiries by members, Parliament must continue to play a vital role in scrutinising and checking executive power.
Since the Second World War, however, we have seen a sea change in the functions of the executive. The kinds and numbers of agencies, tribunals and quasi-governmental organisations that deliver services, spend public funds and make rules affecting individuals have proliferated. With the imprimatur of Parliament, these bodies play an ever-more-important role in the life of the country, and in the lives of individuals.
Parliament’s ability to oversee their activities, however, has limits. The principle of ministerial accountability is not a powerful accountability tool. Nor is Parliament well-suited to play an oversight role for individual exercises of authority by the modern administrative state.
The judicial branch continues to play a vital role in checking the exercise of delegated executive authority, but the judiciary, which can only adjudicate cases that happen to be brought before the courts, is not suited for a systemic role in policing how executive agencies function.
This points to a key function of our FOI law, which is to help keep the many arms of the executive branch accountable through the right to information. You might ask, “How is it that access to information can keep executive bodies and government departments accountable to the public?”
The overall goal of FOI laws like ours is to help level the playing field. The right to information seeks to disrupt government’s monopoly on information. FOI equips citizens, the media, advocacy groups and others with information through which they can scrutinize the myriad decisions and actions taken by government and by entities that exercise delegated authority, at all levels.
As Louis Brandeis, the distinguished United States Supreme Court justice, famously said more than a century ago, “Sunshine is the best disinfectant”. To some this might seem a bit over the top, as it hints that there is dirt and disease everywhere, but there is some truth in what he said. And, since information is power, the right to information goes to the heart of a democracy’s healthy functioning.
So, while the right to information undoubtedly has necessary and appropriate limits under FOI laws, once liberated information aids us in holding those in power to account for their actions. The right to information also ensures that citizens have information necessary to decide whose policies to support in the competition of ideas that is democratic politics.
This is not merely an American line of thought. Sweden has had a robust FOI law since the late 18th century, and more than 75 countries around the world have now enacted FOI laws (in many cases to combat official corruption through transparency). These laws recognise that governments serve us, not the other way around. They enshrine the principle that information enhances accountability for how government exercises the authority we grant to it.
It is not all roses, however, FOI laws do have their detractors, who are often those in elected or appointed office. For politicians, it has been said that FOI laws are beloved of opposition parties and despised by governing parties. And it would be naïve to think that public servants always feel joy at the prospect of a FOI request touching their work. One might pause here and ask, tongue in cheek, whether it was no mistake that the very first episode of “Yes, Minister”, aired in 1980, was called “Open Government”, and that it depicted the horror of senior mandarins at the minister’s suggestion that the public should have a right to information.
I acknowledge that those in power might struggle to appreciate the high-level public good of the right to information. FOI can indeed discomfit those with power, whether elected or appointed. They may see it as impeding the smooth turning of the wheels of government, as inimical to good governance. Some might see it as a drag on resources, consuming public funds that would better be invested in front-line services. Yet time and again we have seen examples of how access to information has shone a light on incompetence, even misfeasance, and has yielded good public policy.
A seemingly trivial example of good policy driven by FOI is the now routine publication of restaurant health inspection scores. An early ICO decision notice ordering disclosure set the precedent, which in turn, must surely have improved restaurant hygiene. What started as reactive individual disclosures of information has shifted to routine, pro-active, disclosure. This is not on the same plane as access to Cabinet minutes but it is an important example of how FOI has benefitted the public good.
And one can easily imagine cases where the right to information illuminates matters of greater public concern. When tragedies such as the Grenfell Tower fire happen, I hope we can agree that the public should know what government and other authorities knew about safety risks, and what was or was not done about them? This is what the public rightly expects, and failure to be forthcoming breeds suspicion and corrodes trust.
Some observers have asserted that FOI impedes good policy-making because the prospect of disclosure “chills” the policy-making process. They argue that FOI impedes frank and fulsome advice because public servants fear disclosure of their advice. For similar reasons, some argue FOI encourages oral government, where things that should be written down are not, due to fear of disclosure.
You may have read about an Inquiry in Northern Ireland into a flawed renewable energy initiative. Statements made in the Inquiry indicate that certain practices in the Northern Ireland Civil Service have been adopted to frustrate Freedom of Information requests.
I have written to the Head of the Civil Service to raise our concerns as a matter of urgency.
One can flip the argument around and point to the fact that the prospect of disclosure of advice through FOI—a prospect that is, given the law’s protections, quite remote—is an incentive to diligence, impartiality and professionalism. Those who know their work may be scrutinised should, in other words, want to do their best.
As for oral government, the notion that officials should not record their decisions or actions due to fear of disclosure is utterly at odds with basic principles of good governance. It is bad administrative practice not to document what you have done and why. Governments will be hard-pressed to explain their decisions if the reasons for taking them cannot be recalled. Failure to record reasons for action might even have legal consequences for a public authority called to defend its actions in court. Oral government leads to rapid loss of corporate memory. Lessons learned, both good and bad, will be forgotten, meaning that errors will be repeated and successes re-invented, in both cases at cost to the public purse and public good.
It is gratifying to see that those seeking to water down our FOI law because of its supposed chilling effect have been unsuccessful. The Independent Commission on Freedom of Information, chaired by Lord Burns, recommended no changes that would accede to these arguments. The Commission’s 2016 report discusses, for example, the protection under section 35 of the law for formulation of government policy. The Burns Commission clearly recognised that the law already robustly protects the formulation of policy, the giving of advice. The ICO provided important evidence to the Commission to demonstrate this.
These concerns are cultural, not legal. There is no basis for them under the FOI law. Some say that culture eats policy for breakfast, but we must not allow that to happen here. The public interest goals of FOI are just too important to allow that to happen.
I would like to pause for a moment and describe my Office’s role under the FOI law.
Before speaking about the interplay between FOI and archives and record-keeping, let me say a few things about my Office’s regulatory role. Our main task is to review public authorities’ decisions on requests for access to records.
Each year my expert FOI team handles roughly 5,000 complaints about FOI. We investigate complaints that public authorities have withheld information inappropriately, have failed to respond, or have failed to respond in a timely way. If we cannot resolve a complaint informally, we will issue a decision notice. These must be complied with, unless there is an appeal of our decision through the tribunal system. Appeals on which we’ve issued decisions range from scallop fishing in the English Channel to MPs’ expenses. Whatever the subject matter, our decisions ensure that public authorities’ claims for protection of information are justified, based on specific and credible evidence and not assertions of harm through disclosure or other ills. We put these claims to the test through a fair and thorough process. We ensure that the letter and the spirit of the law are upheld.
But this speech is not all about our office! Before I speak about our strategic initiatives I would like to speak about how FOI aligns with records management and archives, how they are inextricably linked now, and will be in the future.
A great deal of the work of any FOI regulator implicates the management of records and information, and this is becoming an ever more prominent part of our work. We are called upon to delve into whether public authorities have kept records that are being requested. We are required to ascertain if they have properly searched for responsive records. We may have to determine whether requested records have been destroyed.
These activities all intersect significantly with issues of records management and preservation. Questions relating to the creation, proper management and maintenance of government records are therefore at the heart of what my office does. If public authorities do not maintain a proper record of their decisions and actions, if they do not properly manage their records, the public’s right to gain access to information will be damaged, even thwarted.
Let me share with you the words of one the archivists I most admire. Arthur Doughty was Canada’s archivist almost a century ago. In 1924, he observed that of all “national assets, archives are the most precious”, because they “are the gifts of one generation to another, and the extent of our care of them marks the extent of our civilisation”. As he noted, “when all personal touch” with a period has ceased, “these records assume a startling importance, for they replace hands that have vanished and lips that are sealed.”
These words ring as true today as they did almost a century ago. And they have a new urgency in our world of ephemera, of information that flits about the globe, information that exists in a host of media, with uncertain provenance, and shaky permanence. If important decisions are taken using instant messaging, for example, we must ensure that they are captured and properly assessed.
It is equally necessary to ensure that the right to information is not stymied. What is needed is a digital archives strategy, one that can cope with such challenges, while also exploiting the undoubted opportunities for increased public access to information.
The opportunities flow from the ease with which government information can be made available online, from the power of search tools to discover online information, and the potential, through open data initiatives, to vastly improve the public’s access to official information.
Given the challenges and the opportunities facing archives, I am heartened that the National Archives is, through its digital strategy charting a path forward for our digital archives. That strategy acknowledges that Hilary Jenkinson’s manual set the standard, and that much of archival practice today would be recognisable to Sir Hilary. But as the strategy also acknowledges, “things have moved on since then”. Canadians share the British tendency for understatement, but I am tempted to respond to this observation by saying, “no kidding!”.
Our digital world is very different. Digital records are by nature much more varied and complex than the paper records with which archivists such as Sir Hilary had to contend. The nature and complexity of digital records affect assessment of what might have value and thus influence records appraisal and selection.
Changes in how public services are delivered also raise archival challenges. The outsourcing of services means that originating organisations are not necessarily stable in function, with shifts across the public-private sector divide, and with service providers changing over time. Nor is there any guarantee that service providers take reasonably systematic approaches to record-keeping. And if they do, their objective may not align well with the public interest goals, approaches and expertise of archival practice in government.
These challenges also bedevil FOI. The public’s right to information must not be thwarted by the shift to digital communications and records.
The outsourcing of public services to private sector organisations is of great concern for openness and accountability through FOI. There is also a clear public interest in archival accession of appropriate records of private sector providers of public services. The need to ensure appropriate creation and archiving of such records aligns with the public interest in access to them through FOI. This is another area in which I hope to collaborate with the National Archives to better serve the interests of the archival record and of openness and accountability.
More is needed, however, and my Office is now working on a strategy to augment the request-based, and, frankly, reactive model of openness that exists under our FOI laws. It is important to highlight that the step change I seek will be achieved through a mix of legal reform, improved practices and cultural change. Legal reform alone will not achieve this.
The need for new approaches is driven by the need to find new ways to get the right information to the right people, the public, at the right time. We live in a time of increasing distrust of government and institutions, and of widespread denigration of expertise. This is a time when, perhaps more than ever, we need to find ways to bolster public trust in government and public institutions. And the public’s right to information, secured through innovative and perhaps disruptive ways, is an important tool to help maintain, even enhance, public trust.
We also are seeing a sea-change in how citizens obtain their news, how they inform themselves about how their governments function, and why they do what they do. Traditional media are under attack, both economically and at the hands of those who denigrate what they publish as “fake news”.
The channels through which information gets to the public are also increasingly diffuse. Think of Wikileaks and the almost instant global dissemination of information they publish. Think about rapidly distributed information holdings such as the Panama or Paradise papers travel around the world.
Such shifts in technology, social structures, and public attitudes demand that we rethink how government information is made available, that we reshape how the openness and accountability goals of FOI are best served in the 21st century
Strategy for FOI
Our new strategy for FOI will recognise this demand. It will acknowledge that, as necessary and valuable as our FOI laws are, and must remain, change is needed if we are to meet the challenges of this century.
Let me talk about the need to extend FOI to relevant records of organisations to which public services have been outsourced. Last September, I co-hosted the international conference of FOI Commissioners and the conference unanimously resolved to call on governments to enact such rules. I have already called for this change, and the Burns Commission did so as well.
It is also important that FOI keeps pace with the wide range of organisations delivering what the public would regard as public services, such as Housing Associations.
As important public functions devolve to the private sector, we must ensure that the public’s right to know is not made illusory. For this reason, I will continue to call on government to extend the right of access to service provider records that relate to the delivery of public services. Not all records need be accessible, but it is vital that a fulsome record of actions related to delivery of public services be created and be available through FOI requests and proactive disclosure.
Several Canadian regulators have, for over a decade, issued report cards on public authorities’ timeliness in responding to access requests. It is rightly said that access delayed is access denied.
I have recently issued decision notices against the London Borough of Kensington and Chelsea for failing to comply with the FOI deadline to provide information relating to the Grenfell fire.
Reporting publicly on timeliness has proved to be a powerful tool for improving timely disclosure of information. And public authorities have used their poor grades to push successfully for more resources where the demand has outstripped supply. I intend to examine closely how my Office might, in a targeted way, assess the timeliness of public authorities in responding to requests. (I note here the Burns Commission’s useful recommendation that certain public authorities should be required to publish statistics about their FOI compliance. Central government already does so.)
Related to this, I am giving serious consideration to other ways in which my Office might be more pro-active in ensuring compliance with the law. We respond to complaints, but from a systemic perspective, I believe that own-motion compliance investigations can be a valuable adjunct to our complaints work. As an example, as Information and Privacy Commissioner for British Columbia I conducted an audit of the City of Vancouver’s compliance with its legislated duty to assist access applicants. The audit led to changes in the City’s handling of FOI requests and guided other public bodies in British Columbia. The European Ombudsman, Emily O’Reilly, has undertaken work of this kind and I believe that institution-specific audits or reviews will be of similar benefit in the UK.
The UK government has been a world leader in open data. There is no doubt about that. But I also believe that the time has come for a fresh look at the program. As government programs shift, and as technologies change—including through the rise of modern data analytics—I believe we need to consider whether the quality and utility of our open data sets are as rich as they might be. Datasets must also be findable and up to date. There is a lot of information out there on government’s open data platform, but more information is not necessarily better. Better information is best. Open data was flavour of the month a few years ago but some initiatives have waned – we need to ensure we have sustainable, strategic plans. I intend to assess how my Office might usefully contribute to improvements in open data offerings as we move forward. As an example, we will consider how public authorities might best assess which data should be open, through self-assessment of their holdings and through engagement with users.
Access impact assessments
There’s a need to assess information systems at the design stage for their impact on the right to information. By now, it is routine for data controllers and processors to undertake privacy impact assessments at the design stage for systems and programs. This should also be the case for the access impact of new systems and initiatives. I intend to consider how our information rights strategy can best promote and support this emerging best practice.
A key feature of any successful FOI, or data protection, scheme is the contribution made by civil society, by advocacy groups. We in the UK are fortunate to have many skilled and dedicated organisations in both areas, too many for me to name here. Since becoming Information Commissioner in mid-2016, I have devoted considerable effort to establishing respectful and appropriately collegial working relationships with civil society groups. I will continue this work, and my Office’s strategy will include methods to ensure this work succeeds. This is especially important on the policy front, although I also believe that civil society can make a significant contribution to our compliance work.
I mentioned earlier that many dozens of countries around the world have adopted FOI laws. They all have oversight agencies of one kind or another.
Although we have a conference bi-annually, and communicate informally, we need more organised way in which to collaborate on best practices and learn from our colleagues’ experiences. The ICO is working to establish a secretariat function to support the International Conference of Information Commissioners, provide expertise and advice for new authorities, and promote policy work on matters of international concern.
FOI is an important pillar of democratic accountability. It gives citizens the opportunity to be engaged and informed. And that’s the kind of world I want to live in.
There is a clear community of interest among practitioners, regulators and the public in these areas. My sincere hope is that, as we look ahead at the massive technological and political changes on our doorstep, we can come together as information professionals to serve the public interest with passion and excellence.
Legal reform is necessary but, I must stress this again, it will not work in isolation. There must also be improvements in the way organisations approach information rights issues and there must be a shift in our culture to demand those rights.
If administration of FOI is Everest, I’d say we are at base camp. We’ve already come a long way but we’re stopping to recharge before the final push to the summit.
Information Commissioners can’t do it alone. We need a consolidated strategy created through strong relationships – We need to work together, drawing on each other’s strengths to conquer the seemingly insurmountable.
Thank you for being here this evening. I would be happy to take your questions, although I am very aware that a drinks reception awaits us.