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Submission to the Independent Commission on Freedom of Information

This is Sense About Science’s submission to the Commission on Freedom of Information. In it we raise concerns that researchers, research bodies, politicians and civil servants have shared with us, about making it harder to get hold of the research that underpins government policy.

It’s clear from our conversations with people who promote transparency on the use of evidence, whether they’re inside government or in civil society, that government hasn’t yet considered how changes to FoI might affect the public’s access to evidence. So if you value transparency on how government commissions, publishes and uses evidence, now is the time to speak up in whatever way you can.

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Dear Lord Burns

Sense About Science is conducting an inquiry, led by the former appeal court judge the Rt. Hon. Sir Stephen Sedley, into concerns that government departments sometimes fail to publish the research they commission for policy promptly and in accordance with their own guidelines. The inquiry will report in Spring 2016, but I want to bring the points below, from initial scoping and evidence, to your attention, in case your commission is not aware of them.

The internal deliberations of public bodies: Should different protections apply to different kinds of information that are currently protected by sections 35 and 36? (Q1)

Removing the public interest test from Sections 35 and 36 suggests a blanket exemption of the deliberations for policy development, which would include related research commissioned by government.  

  • Independent research organisations and funders, such as the Wellcome Trust, are telling us that their rules require open publication of research, including research they undertake in partnership with others such as government. Restrictions on freedom of publication would prevent them entering into these contracts.
  • You might also consider – in light of the public fuss that already occurs when government-commissioned research is withheld and in light of the research community’s support for open science – whether restrictions would make it hard to attract top researchers to government commissions. Our inquiry is already hearing from researchers whose experience of withheld research have made them reticent to work with government again. 
  • You might consider, too, whether it is defensible for government to insist on data sharing in other contexts
  • Researchers and civil servants have shared with us good examples where complex, uncertain and potentially controversial research has been published promptly and in full, and communicated with the public. These show that exemption of research for policy development is unnecessary, and any desire for exemption may be better addressed by improving communication skills and learning across departments to communicate research better. (A matter for our inquiry recommendations rather than yours!)

Your commission should comment on how section 35 and 36 protections would distinguish between strategic advice for policy development and the underlying evidence. It is questionable whether the public interest would ever be served by such a blanket exemption, which would be over-inclusive and would result in government withholding information that could easily be published to improve public discussion.

Protection for information that involves candid assessment of risks (Q3)

It’s important that risks relating to matters of national security and defence are assessed candidly. Arguments that you have heard in favour of increased exemptions from FoI include the possibility of publication creating a chilling effect on this candour.

  • However, researchers involved in Ministry of Defence and other security related agencies have told our inquiry that with carefully managed publication, redacting specific information but publishing the rest, even very sensitive risk analysis on things such as readiness for terror attacks can be communicated without compromising security.
  • As some defence-related information is already in the public domain, or can easily be obtained, tighter exemptions around sensitive information could put government in a ridiculous position of withholding data that are openly available through other channels. Even in the highly sensitive example of FOI requests to release previous versions of a dossier on weapons of mass destruction in Iraq, the Information Tribunal concluded that “the ‘chilling effect’ would have been quite limited, given that the Hutton Report had not only put into the public domain a great deal of information on the subject but had also provided a detailed description of the circumstances in which the Dossier had been prepared, so that the public was in a good position to place the Williams draft into its correct context.”
  • Government departments often find out about the research conducted in other parts of government through its release into the public domain.  

Blanket exemptions on risk assessments relating to the delivery of major government projects would also harm public scrutiny. Such assessments are an essential part of the chain of reasoning behind government decisions, forming part of the case for or against a policy. As the Philips inquiry into the government’s handling of the BSE crisis showed, it is better to communicate candid assessments of risks, even if there is uncertainty, than to cover them up.

Fear of losing control of the way difficult topics are discussed is understandable, and may lie behind the desire to withhold sensitive information. But this risks undermining and trivialising the concept of information that is genuinely sensitive on grounds of national security. Exempting all sensitive information could encourage department personnel to behave as dolts who cannot distinguish between such information and that which they can readily publish without causing harm. An indistinct definition of national security is of no benefit to any party.

Executive veto over the release of information (Q4)

The Commission should clarify how any Ministerial veto would affect the publication of research commissioned by government, with reference to other protocols and the guidelines that cover the publication of government research and with reference to conditions of research contracts, which stipulate that findings should be published promptly and in full. Which arrangements would prevail – contractual agreements, ministerial and civil service codes, or a veto?

I hope your Commission reflects on the need to maintain and strengthen the public’s right to scrutinize the evidence underlying government decisions, as I know do many colleagues in the research community and in government who advocate openness on the use of evidence in public life.

Yours sincerely

 

Tracey Brown

Director, Sense About Science