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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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