APPENDIX A1
WHERE NEXT FOR FREEDOM OF INFORMATION?
Tue, 31 Aug 2010
An opinion piece from Prof Edward Acton, Vice-Chancellor,
University of East Anglia
The core purpose of the Freedom of Information
Act is profoundly progressive: to tighten collective control over
power. Public access to an organization's thinking is a strong
antidote to corruption, deception and repression. Without it,
there is no reason to think MPs' expenses would have been brought
under control. The Soviet regime could not have lived with it
at all.
Where university research is concerned, the
FOIA forms an important part of the healthy drive for increased
openness. Research Councils and other funders now routinely require
that the data and methodology needed to validate research findings
be made public.
The requirement may absorb time and resource,
but is well worth it. The more fully it is embraced, the more
surely new findings can be subjected to the sceptical scrutiny
on which the progress of academic research depends. And the lower
the risk that certainty will be overplayed or probability underplayed.
But there are dilemmas. If data gathered by
researchers is to be disclosable before they have completed work
on it, issues of commercial and intellectual property become acute.
Take the recent ruling by the Information Commissioner (made under
the FOIA's twin, the Environmental Information Regulation) to
force Queen's University Belfast to hand over painstakingly assembled
Irish Tree Ring data. Are we to find that commercial companies
(located anywhere in the world—our FOIA is wonderfully cosmopolitan)
may secure the release of the unworked data of every UK university?
What about records of conversations among researchers,
their unfinished questioning, musing and thinking aloud? Should
they be available to anyone on demand? The notion that private
reflection has no place in a body subject to the Information Commissioner
has shades of Orwell's 1984.
Following this month's Muir Russell Review of
"Climategate", which dissected the allegations made
against scientists at UEA's Climatic Research Unit (CRU) and concluded
emphatically that "their rigour and honesty is not in doubt",
the President of Universities UK, Steve Smith condemned the subjection
of researchers to intimidation and threats:
"Attempts to create controversy and discredit
researchers in some fields serves only to erode public trust in
our researchers and risks setting back progress in many key areas."
Smith remarks that if Einstein had been subjected
to such challenges when his research was in the formative stage,
his reputation would have been terminally damaged before he got
to the theory of relativity. Or take Darwin. Almost two decades
elapsed between his voyage on HMS Beagle (1840) and publication
of On the Origin of Species (1859). Had he been forced
to release his momentous musings before he was ready, he might
well have been stopped in his tracks like other pioneers of evolutionary
theory.
As e-mail becomes a daily substitute for verbal
exchange, it is intensifying the dilemma. Where research is concerned,
e-mails recreate the best and worst aspects of coffee-room chats:
they are a source of countless intellectual breakthroughs but
characterised, as psychologists point out, by a style that is
often stark, uninhibited and easily misunderstood especially out
of context.
The UK could learn from the US. There the FOI
distinguishes between recorded factual material necessary to validate
research findings, which must be disclosed, and "preliminary
analyses, drafts of scientific papers, plans for future research,
peer reviews [and] communications with colleagues", which
are exempted.
Until the line is soundly drawn and widely understood,
there will be unfortunate side-effects. Any refusal or reluctance
to disclose is easily read, especially by those in the grip of
a conspiracy theory, as sinister. As one commentator on the CRU
affair pointed out: "Like Desdemona's handkerchief, Climategate
offered absolute proof to those maddened by paranoia, but to the
rest of us it remained just a handkerchief."
Smear tactics may matter little in this instance,
given that the remorseless upward trend of global temperatures
is so carefully verified internationally, and that it seems to
become grimly clearer month by month. But it is easy to think
of more virulent belief-systems feeding upon the refusal of an
FOI request, however legitimate the grounds for refusal.
The dilemma over deliberation and consultation
extends beyond research. There is a direct public interest in
preserving the ability to have candid, rapid, multi-person e-mail
discussions to quickly formulate thinking. The risk that all such
e-mails might be forcibly disclosed could have the same chilling
effect on debate as requiring offices and telephones to be bugged
and the tapes released on demand. Because of FOI concerns, civil
servants are apparently reluctant to use e-mail for controversial
internal debate and blue-skies thinking.
If fear of eavesdropping drives consultation
underground, rather as the KGB's listening devices drove Soviet
citizens to discuss weighty matters in the kitchen with the tap
running, the cost is likely to be high. We will be at a disadvantage
as a country in terms of full and frank deliberation, and historians
will deeply regret the impoverishment of the archives.
But these are early days. The Information Commissioner
will no doubt seek balance and clarity. The next step is to take
the Act further and extend its remit over concentrations of power
as yet minimally subject to collective control. We might start
with the press, the commercial giants ... and the banks.
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