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EU watchdog: Govt bods are seeking 'legal knockouts' to dodge transparency

Increasingly 'legalistic' approach goes against intentions for openness, says ombudsman

By Rebecca Hill, 20 Sep 2017

Public bodies are taking an increasingly “legalistic” approach to disclosing information that doesn’t always support transparency, the European Union’s dodgy management watchdog has said.

In a speech at the International Conference of Information Commissioners, EU ombudsman Emily O’Reilly said that, although a high proportion of public bodies comply with her requests for publication of information, there had been a “subtle shift” in these responses.

O'Reilly, who seeks to tackle maladministration in the bloc, said: "An agreement to disclose more information or content of a document is now often tempered with a statement of self-justification on the part of the institution."

These responses argue that the decision was “right and justified at the time it was taken, even if, given the passage of time, the arguments for non-disclosure have weakened or become irrelevant”.

This, she said, indicates “a more legalistic approach” that “does not actually support transparency as an essential aspect of good governance”.

“Rights entrenched in law have a tendency to be regarded as legal rights to be fought over, rather than fundamental rights to be respected,” the ombudsman said.

O'Reilly argued that looking for “technical legal knockouts” in this way can end up ignoring the public interest that is the point of increasing transparency.

Rather, public authorities should disclose information automatically - “not be checking to see whether they have a legal obligation to publish documents proactively”.

O’Reilly also emphasised that releasing information was about more than just boosting transparency - it also helped to effect policy change and expose dodgy dealings.

This means “ensuring that relevant and accurate information is produced and published in good time for it to be useful,” O’Reilly told the conference.

“The proactive release of relevant and accurate official information should be based on a clear strategy for the creation of such information, anticipating the public interest,” she said.

This might go as far as releasing raw data, she said. Picking the dieselgate scandal as an example, O’Reilly said that if citizens had had access to the raw data on emissions held by the European Commission, “the problem might have been identified far earlier than it was”.

'Available' data doesn't equal accessible data

Her comments echo with those made at a public discussion on big data last night at the British Library in London, where panellists mused on the difference between available and accessible data.

As Charles Boutaud, data journalist at The Bureau of Investigative Journalism, pointed out, if the government publishes a dataset as a file that runs to 11 million rows a month, it won’t be much use to people who only has the skills to use Excel, where a file can support about 1.5 million rows.

“There is so much open data… The problem is that people rarely have the means [to use it],” he said.

He later added that another issue was the difficulty in finding government data, suggesting another desirable skill in the field would be “government website literacy”.

Meanwhile, Bernie Hogan of the Oxford Internet Institute said the main issue was not that people didn’t have the ability to use the data, but that they understood its biases.

He argued that, just because we have masses of open data, it doesn’t mean there are amazing visualisations for each dataset - “oftentimes, it just stays there in a spreadsheet”.

Instead, Hogan called for a focus on helping people understand how data released by public bodies can be biased, for example because different jurisdictions record information in different ways. “That’s not about the technology, per se,” he said. “It’s standard social science - and common sense.”

Hogan added that there also needed to be “more faith in institutions” that help to regulate data and privacy rights.

Similarly, University of Bath academic Joanna Bryson said that, when it came to concerns about how organisations use people’s personal information, it was crucial that regulators use the sanctions available to them.

“We can’t ensure nobody is putting the dots together - but we can ensure that if they behave in the wrong way, we come down on them like a tonne of bricks,” she said.

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