Information Commissioner fires warning over changes in public service delivery

Changes in the models of public service delivery must not weaken the ability of citizens to obtain information and hold public authorities to account, the Information Commissioner has warned.

In a speech to mark International Right to Know Day 2011, Christopher Graham also highlighted the importance of disclosing unstructured information such as emails and memos, and launched a consultation on the content of publication schemes that specify the information authorities must publish proactively.

On changes to service delivery, Graham said: “Contracting out and the involvement of new providers from the private sector, charities or the third sector generally must reduce neither the citizen’s right to know nor the accountability of public services.

“Transparency and accountability are supposed to be transforming public services. It would be perverse if the transformation of public services resulted in less transparency and less accountability.”

Speaking more widely, the Information Commissioner said he welcomed the emphasis on greater transparency in public policy and supported the direction of travel. He also said new technologies enabled a bolder approach to the right to know.

But he stressed that the right to know was not just about the proactive publication of datasets and other structured data.

The disclosure of unstructured information – “emails, memos, reports, policy documents” – was also vitally important in delivering accountability and holding public authorities to account, he argued.

“In other words, transparency is not just about what the authorities choose to reveal to citizens; but what citizens have a right to ask to see, and the authorities may have an obligation to publish, depending on the circumstances, however inconvenient that may be.”

The Information Commissioner also highlighted the need to ensure that there was no gap “between the right to know rhetoric and the reality of a ‘don’t tell ‘em’ mentality that all too frequently frustrates the citizen”.

He said: “Public bodies proclaiming pro-active transparency shouldn’t be so coy about revealing what individual citizens may want to know.”

Graham added that organisations promoting accountability needed to be better at processing day-to-day information requests, and that those authorities using Twitter or Facebook to engage with citizens could not complain when citizens use the same new media to submit FOI requests.

On the publication schemes consultation, Graham said: “There’s a key role for the ICO’s statutory publication schemes to play in delivering transparency, even under current, un-enhanced FOI legislation.”

The consultation sets out how the ICO intends to revise its approach to publication schemes in the light of developments in the transparency and open data agenda.

“We will want feedback, not just from public authorities but from members of the public as well,” Graham said. “Our questions will include: What further classes of information or further detail can be included in publication schemes? How should publication schemes evolve in the light of web 2.0? Is our approach of one model scheme and sector based guidance appropriate?”

In relation to local government publication schemes, the ICO plans to have amended guidance in place by the end of the year. “Since the ICO Publication Scheme vehicle is there already, it shouldn’t be necessary to develop additional non-ICO codes, whether advisory or statutory,” the Information Commissioner added. “More codes doesn’t necessarily mean more compliance. And more codes can mean more muddle.”

In his speech Graham also said:

• Just saying that there was a balance to be struck between different rights – the right to know or the right to privacy – does not itself strike the balance. “The decisive factor must always be a sober assessment of the competing interests, both public and private. And these have to be assessed on a case-by-case basis”
• There was certainly a public interest in privacy for individuals as well as in transparency around public information, but privacy should not always be claimed as a barrier to transparency, accountability or open data. The ICO would continue to issue and update guidance about privacy risks to help public bodies make the right decisions, he said. The ICO is also developing a code of practice on anonymisation under s. 51 of the Data Protection Act and will publish broader guidance on key privacy principles that apply to dataset disclosures
• A joined up and consistent approach to the different strands of transparency policy across government was needed. A case could be made for a co-ordinated National Information Policy

The Information Commissioner also considered the progress of the Protection of Freedoms Bill. He said he welcomed the proposals to delete the DNA profile and fingerprints of those who have not been convicted and are of no ongoing interest to the police, but also called for the deletion of the associated information about these people on the Police National Computer.

Graham warned that the additional regulation of CCTV and Automatic Number Plate Recognition, whilst welcome, was “limited in coverage, both sectoral and territorial, in a way that doesn’t reflect how widely this surveillance technology is used – and there are no new sanctions for non compliance”.

The Information Commission said that the Data Protection Act would still apply to images of individuals whatever the sector and wherever in the UK they are held. “It is therefore essential that the proposed Secretary of State’s Code and the new Surveillance Camera Commissioner properly complement the ICO’s existing regulatory regime,” he insisted.

On the provisions relating to criminal vetting, Graham pointed out that there was nothing in the Bill about filtering out old minor convictions from vetting checks. He also called for the practice of ‘enforced subject access’ – where a prospective employer requires applicants to exercise their rights as ‘data subjects’ to access their own data and show the results to the employer – to be made unlawful.

The Information Commissioner also said it was vital that amendments in the Bill that add new rights of access to datasets under the Freedom of Information Act are “clear and straightforward, both to implement and enforce”.

Graham meanwhile signalled his determination that improvements to the arrangements for safeguarding the ICO’s independence should be enacted.

He concluded: “I believe that an active and independent ICO can help make a practical reality of the transparency agenda. Not just supporting the direction of travel, but helping to reach a common goal. Delivering a Right to Know 2.0. The reality, not just the rhetoric. The difference between seeing it through - and seeing through it.”

Philip Hoult