Culture of secrecy is weakening

The following article by outgoing Information Commissioner Richard Thomas was published in the Mail on Sunday - it is an interesting summary of how far Freedom of Information has travelled in the last four and a half years, and some of the dangers on the horizon.

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A scene from the film adaptation of George Orwell's '1984'

Biometric identity cards. The Attorney General’s legal advice on the Iraq invasion. MMR vaccine. A database of every child in the country. Street View and Facebook. Nuclear plant safety. Questions about whether we are sleepwalking into a surveillance society. Oh - and MPs’ expenses.

There’s nothing dull about data protection and freedom of information. Protecting personal information and upholding the citizen’s right to know about the activities of a vast public sector cut across virtually every aspect of life.

When I started as the independent Information Commissioner at the end of 2002, I predicted that the role would involve promoting novel and controversial laws that would often be seen as threatening to powerful forces.

I probably underestimated the scale of the challenge. I have certainly had to ruffle a few feathers. But as I stand down after nearly seven years I hope that the Information Commissioner’s Office (ICO), which I have been privileged to lead, has made a real difference.

Our dual role is to bring home the importance of safeguarding personal privacy, while pushing government and the rest of the public sector towards genuine open government.

The aim is to minimise what others know about our private lives and maximise what we know about the activities of government.

When I started, data protection was marginalised and frankly seen as somewhat nerdy. Freedom of information was a subject of interest to the chattering classes and - after years of debate - had not even been implemented.

Both now influence, and sometimes set, news and political agendas on a daily basis. Both have come of age and moved centre-stage.

Data breaches - including the loss of 25million child benefit records in 2007 and 14 NHS data security breaches in the past year - have shown beyond doubt that people really care about how their information is handled.

Money is at stake when bank account details fall into the wrong hands but health records involve particularly sensitive data. My office has had to take action against a number of hospitals and other NHS organisations.

Inquiries and investigations have demonstrated that high-level accountability is key to handling personal information well. It is too important to be left just to compliance officers, lawyers, IT departments and other experts.

Someone at the top has to make sure that all the risks have been addressed. High-level management is needed to make sure that staff are aware that customers, taxpayers, employees, pensioners and service personnel expect their personal information to be properly collected, stored and used. Data lapses risk reputations and bottom lines.

Chief executives are now getting the message and starting to take data protection much more seriously. The threat of a substantial fine by the ICO will also focus minds when this power is finally made available later this year.

I suspect the debate will shift increasingly from security to questions about the accuracy and relevance of the data. What company wants inaccurate records on its customers? What public body can afford to mix up two identities? Will the Court of Appeal agree with me that the police do not need to keep for decades records of isolated and very minor offences committed by upright citizens when in their teens?

As well as accuracy, data minimisation needs to be the watch-phrase - not collecting more than is needed, nor keeping it longer than necessary. Data protection does not stop sensible things being done but it does make organisations think about, and justify, what they are doing.

The Government has been an advocate of creating huge collections of data, often with very good intentions, and of course information can be a valuable asset for law enforcement, public protection and service delivery.

However, it can also quickly turn into a toxic liability if the risks materialise. If things go wrong, real damage can be inflicted on people’s careers, their reputations, their personal relationships, their private lives and their bank balances.

And you do not need to believe in George Orwell’s Big Brother to see that real damage can be inflicted on society at large if government collects too much information about us. This is central to the relationship between State and citizen.

We often have little choice about entrusting the State with our personal records on tax, police, health, education, driving and so on. We need to have trust and confidence that each database is being used for the right purpose. We do not need or want to get paranoid about who knows what about us or otherwise have our freedoms and liberties jeopardised.

I welcome the increased awareness of the dangers that excessive, unrestrained or unscrutinised collection and use of personal information can bring. Benign motives do not eliminate the risks. I said last year that setting up a government database to keep a record of all our emails, phone calls, text messages, web searches and online shopping would have been a step too far for the British way of life.

I welcome the Home Office’s decision to rule out the idea of a single government-run store of communications traffic data. The tensions between security and liberty are undoubtedly delicate but they are healthy and it is essential to secure a balance, with clear boundary lines, informed by full debate.

Openness is, of course, key to public confidence and the Freedom of Information Act introduced the legal right to know. There has been a strong appetite for it - we estimate that nearly half a million requests have been made so far. I am proud that we have nurtured the law to become a permanent fixture and a core part of the fabric of public life.

The recent uproar over MPs’ expenses has cemented the Act’s reputation as a success story.

The surprise is no longer the nature and extent of disclosure of information. What is astonishing is how much was previously kept secret.

Transparency and openness have now become part of the standard political vocabulary. Politicians and commentators compete to hail the benefits of the public’s right to know. It is a defining feature of a modern democracy and a stark reminder that politicians and their officials serve the people, not the other way round. Citizens are entitled to know what is done in their name, with their money.

As well as promoting accountability and public engagement, freedom of information deters corruption and impropriety. It’s no wonder that, many years ago, a famous US judge described openness as the best disinfectant.

The culture of instinctive official secrecy in the UK is weakening but there is still further to go. Everyone in public life can learn from the MPs’ expenses saga. That is why I called last week for more routine disclosure, making information available without waiting to be asked.

Departments need to identify their Crown Jewels, which really must be kept confidential, and publish other material as a matter of course.

Access to information is part of a much wider agenda of social change. Modern communications mean it is easy to discover the facts. Open government is good government and I welcome indications from the Prime Minister that the Freedom of Information law will be extended and the 30-year rule reduced. The proposal to exclude Cabinet papers, not just Cabinet minutes, from disclosure is bound to be more controversial.

On Thursday, the Commons authorities are expected to finally publish wholesale details of MPs’ expenses. This follows my initial ruling ordering disclosure.  

Of course, the media beat the Commons to publication of some of the material, but none of this would be known were it not for the Freedom of Information Act.

Misbehaving judges to remain shielded by secrecy

The Guardian newspaper has lost an Information Tribunal in a case relating to misconduct on behalf of judges. I have reproduced the Guardian article below and this is a link to the Tribunal decision in the case.

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The government and the judiciary can continue to conceal the names of more than 170 misbehaving judges, a freedom of information tribunal has ruled.

The judge heading the tribunal decided that some members of the judiciary who have been sacked or reprimanded for misconduct would suffer “great distress” if details of their misdemeanours were made public.

The judges’ authority in the courtroom would be undermined, and their privacy unjustifiably invaded, if the public were allowed to know how they had been disciplined, according to the tribunal.

The ruling came out in favour of justice secretary, Jack Straw, and the judiciary as they have fought a four-year battle to hide the identities of miscreants.

The three-member tribunal, led by David Marks QC, dismissed a challenge from the Guardian which had argued that the public should know which judges had been disciplined and why.

Straw and Igor Judge, the lord chief justice, are in charge of deciding how to punish judges, members of tribunals, magistrates and coroners if they behave badly in the courtroom. They can also be disciplined if their conduct outside the courtroom “tarnishes the reputation of the judiciary”.

It is known that judges have been admonished for being convicted of drink-driving, falling asleep in a rape trial and viewing porn on their official computers. An immigration judge who had an affair with his Brazilian cleaner and sent her text messages calling her “chilli hot stuff” was rebuked for showing “poor judgment” in hiring her. The cleaner was cleared of blackmailing him.

In their verdict, Marks and the two members of the tribunal said it was not “at all far-fetched to assume” that the courts would be disrupted if the public were allowed to know about judges’ misdemeanours. They cited the example of an unnamed “very senior judge who was reprimanded by the lord chief justice”.

Marks and his colleagues said that if barristers had known about the behaviour which had led to the reprimand, they would have used the information to try and get an adjournment of hearings or “in some cases an application that the judge in question not hear the particular case.

“This clearly has adverse implications for the public and for the administration of justice generally,” they said.

Marks also said judges could also experience “intrusive” and overblown reporting by the media of their misconduct. This could “cause an undermining of authority generally and thus prejudice any further employment prospects of whatever sort in the wake of a reprimand”, they added.

They were “impressed” by the Ministry of Justice’s argument that judges were entitled to a “reasonable expectation of privacy”.

They recognised that disclosure of the data requested by the Guardian would “admittedly … further the interests of transparency and accountability”. However they decided that “enough” information about the “fact and scope” of the reprimands over the past decade had already been made public.

The Ministry of Justice had published information outlining the number of times judges have been disciplined, a description of the system for adjudicating complaints, and broad categories of misconduct committed such as “inappropriate behaviour” and “misuse of judicial status” without giving further details of individual wrongdoing.

Marks rejected the Guardian’s arguments that publication of the misconduct would “enhance public confidence in the administration of justice and that secrecy is more likely to engender resentment, suspicion and contempt than enhance respect”.

The public should know if those who pass judgment on others were being disciplined correctly when they transgressed, the paper said.

The Guardian had also argued that openness would also help to ensure that judges were not persecuted unfairly by ministers.

Following pressure from the Guardian, the Ministry of Justice has pledged to be more open about judges who have been sacked in future.