Outsourcing Accountability: Privatisation and Freedom of Information

Since it was introduced in 2005, the Freedom of Information Act (FOIA) has helped expose a wide range of scandals. It has uncovered MPs exploiting their taxpayer-funded expenses system, child abuse in Northern Ireland as well as the scale of civilian deaths in the Afghan war. The Act, which is based upon the principle that the public has a “right to know” information contained in government records, has become an important means by which power can be held to account.

But freedom of information as we know it could be under serious threat. In towns and cities across the country, there are rapid, expansive changes taking place. As the government implements the biggest public spending cuts in a generation, many public services are struggling to survive. From Manchester to Devon, libraries, care homes, schools and even hospital wards are faced with a very real prospect of closure. What this means is that, almost inevitably, we are set to see control and ownership of public services being handed over to the private sector on an unprecedented scale.

The FOIA, in its current form, can only be used to gain information from public bodies “wholly funded” by public money, such as the police force or local councils. Private companies not owned by public money, even if they are providing key public services such as care provision, are not bound by the Act. Therefore, as more and more of our services become privatised, freedom of information is likely to diminish.

According to freedom of information campaigner, author and journalist Heather Brooke, this poses a serious problem for the future.

“We’re going to see increasing privatisation of what were public services, and there is a danger that because they’ll be privatised they won’t have the same accountability that they had when they were overseen by public bodies,” she says. “In principle I don’t have a problem with privatisation; my problem is when public money or policymaking or public decisions are outsourced, there’s no way for the public to hold that to account.”

The coalition government expects that as the public sector slowly disappears and the state shrinks, privately owned companies will step in to fill the void. Journalists and citizens will still be able to request information about specific private contracts if they have been paid for by a public body – such as when a council contracts a private company to provide a service – but they cannot make direct FOI requests to the company or ask for information relating to any other matters. The implications of this are potentially huge.

“It is a matter of concern where functions are being removed from public authorities to private contractors,” says Maurice Frankel, director of the long running UK Campaign for Freedom of Information. “A vast range of information is going to be lost from public access.”

Frankel predicts that if the coalition’s plans to privatise elements of the NHS go ahead, GPs will have a right to access only partial information about the performance of contracted private healthcare providers. “If you want to know how many cases of reinfection occurred in the hospital, that’s not going to be covered by the individual GP’s contract,” he says. “The solution is to make the contractors themselves public authorities under the [FOI] Act.“

Across the housing sector, similar changes have already taken place. Private companies are now responsible for building most of the UK’s “affordable homes” – a role that up until the Thatcher era was carried out predominantly by councils using public funds. Often councils will now contract private developers as part of regeneration projects. Consequently, there has been a direct impact on transparency and accountability.

Researching a story on a regeneration project in New Broughton, Salford for Big Issue in the North earlier this year, I encountered firsthand the impact of privatisation on freedom of information. After a significant statistic was quoted to me by a public relations (PR) firm employed by private developer Countryside Properties, I asked to see its origin. Following a lengthy exchange of emails, however, my request was refused. The survey was “confidential and not in the public domain,” I was told. The PR firm would allow me to see snippets of the survey, but not the full thing; they wanted to reveal the favourable statistics, but nothing else.

The government’s plans to create new ‘free schools’ – schools that can be started by businesses, parents, teachers or other groups – have also caused transparency concerns.

Jane Eades, treasurer of campaign group the Anti-Academies Alliance, was refused information about free schools after submitting an FOI request to the Department for Education last year.She believes part of the problem is that a charity called the New Schools Network (NSN) has been set up to help fund free schools. The NSN has received £500,000 from the government, and anyone wishing to set up a school can apply to it for funding. But as it is a charity, it is exempt from the FOIA.

“The Government have been very cunning in the way they have set up the free schools process,” Eades says. “Unless the group [the NSA] publicise what they are doing, there is no local consultation or information. In other words, the whole deal seems to be very secretive.”

Such instances could become commonplace if privatisation is to spread across the public sector. Yet prime minister David Cameron maintains that the coalition government aspires to become “one of the most transparent governments in the world”. In recent weeks, for instance, the government has revealed plans to somewhat strengthen and widen the powers of the FOIA. Under the changes proposed in the new Protection of Freedoms Bill, some organisations previously exempt from freedom of information requests would be included. Bodies performing “functions of a public nature” such as the Association of Chief Police Officers (ACPO) and the Advertising Standards Authority are among those who would be made to adhere to FOI legislation.

Freedom of information campaigners have welcomed these changes; however, although the Freedoms Bill widens the scope of the FOIA, it still fails to address the issue of privatisation. While on the one hand the government is strengthening the ability of citizens to gain information from public bodies, on the other, by privatising public services, they are reducing the amount of information that is freely available. Whether intentionally or not, the coalition is outsourcing accountability.

According to the Ministry of Justice (MoJ), the arm of government responsible for freedom of information policy, the FOIA will soon be reviewed to ensure it remains an effective means by which people hold the government to account. But the speed and scale of the government’s rapidly implemented privatisation agenda seems to have already caught the MoJ off-guard.

When questioned about the potentially regressive impact of privatisation on freedom of information, an MoJ spokesperson responded: “We have to strike a balance between our commitment to increasing transparency and that of reducing the regulatory burden on business. We do not consider it necessary to extend the Act to bodies that provide public services under contract at present.”

Meanwhile, the Information Commissioners Office – the independent authority set up to “uphold information rights in the public interest” – pointed to a statement made by Commissioner Christopher Graham in January.

“It would be perverse if by going for alternative provision of services – privatisation, contracting out, looking at new and imaginative alternative ways of delivering public services – we suddenly found that we are giving important public functions to authorities that are not within the FOI Act and they became less accountable," Graham said in an interview with the Guardian newspaper. “We've got to think through the implications; we can't be so starry-eyed that we can't see the downside. There is a potential for services to become less transparent and less accountable.”

For Brooke, who won a landmark High Court judgement in 2008 forcing the disclosure of MPs expenses, the only real solution is to expand the provisions of the FOIA further. “What I would like to see is a change in the Freedom of Information Act,” she says.

“A better situation would be if it was about the criteria, about how much funding does that organisation receive from the public or are they providing a public service. If they are doing one of those two things then they should fall under the purview of being a public body for the purposes of the FOIA. We’ve definitely got to see some kind of change to the law."

This article appeared originally in Issue No.871 of Big Issue in the North.

Cablegate: Part II

It has now been two weeks since the beginning of Cablegate – the largest leak of classified intelligence in history. In recent days we have seen the organisation responsible, Wikileaks, endure repeated attacks from across the political spectrum. Crude suppression tactics have been mobilised by powerful American politicians in a desperate attempt to remove Wikileaks from the internet; Paypal, Visa, Mastercard and Amazon have all now severed their ties with the organisation after pressure from the US Homeland Security Committee.

On Tuesday, after much speculation, the police finally crossed paths with Wikileaks’ co-founder, Julian Assange. He was arrested in London and jailed – incidentally in the same prison once occupied by Oscar Wilde – pending an extradition trial in relation to sexual offence allegations made against him in Sweden. “Many people believe that this prosecution is politically motivated,” said his lawyer on the steps of Westminster Magistrates Court. “I am sure that justice will out and Mr Assange will be released and vindicated in due course.”

Yet amazingly, as Cablegate enters its third week, we must remember that this flurry of historic high-drama has been caused by the release into the public domain of just 1,344 of 251,287 – approximately 0.5% – of the confidential embassy cables. The worst, it seems fair to say, is yet to come.

It is going to be a long and arduous process. There will be months of scandals, colourful revelations and allegations of every kind imaginable. Concentration and stamina will be required, for there is a strong likelihood that some massive stories could slip under the radar, lost in an information abyss. Only 14 days in, the sheer deluge of cables already appears to be causing the onset of apathy and laziness, particularly among sections of the press.

Earlier this week, for instance, we learned from the cables that on 24 September 2009 Whitehall told America to ignore then Prime Minister Gordon Brown's statement on the UK’s nuclear deterrent, Trident. Brown had planned to scale back Trident, and on 23 September 2009 said in a speech to the UN General Assembly: “If we are serious about the ambition of a nuclear free world we will need statesmanship, not brinkmanship.” This announcement, one of the cables reveals, “caught many in HMG [Her Majesty’s Government] by surprise.” The Americans were subsequently reassured by high-ranking foreign office policy officials, seemingly behind Brown’s back, that there would be “no daylight” between US and UK nuclear policy. “HMG has not formally decided to scale back the deterrent but would only do so if a government defense [sic] review determines,” the officials stressed.

However the Trident revelations, publicised by the Guardian, were not widely covered by the British media – who were instead focused intently on the arrest of Julian Assange and the lurid content of the allegations made against him. Similarly, during the first few days of Cablegate, several newspapers – particularly the tabloids – devoted more coverage to diplomatic name-calling than to the major revelations that British officials not only promised to protect US interests during the Iraq inquiry, but also made a deal with the US to allow the country to keep cluster bombs in the UK despite the ban on the munitions signed by Gordon Brown.

This week we also learned that prior to the general election in March, Conservative party politicians promised behind the scenes to run a “pro-American regime” and made assurances that, if voted into power, they would buy more arms from the US. While the cables have further revealed – as many suspected – that prior to the release of convicted Lockerbie bomber, Abdel Baset al-Megrahi, the UK was under intense pressure from the Libyan government. One cable, dated 24 October 2008, reads: "The Libyans have told HMG flat out that there will be 'enormous repercussions' for the UK-Libya bilateral relationship if Megrahi's early release is not handled properly [...] HMG is also adamant that, despite devolution, London controls foreign policy for the UK, not Edinburgh."

It is at a time like this when journalism should come in to its own. Forget that Vladimir Putin is known in diplomatic circles as “alpha-dog” or Angela Merkel as “Teflon” – there is simply too much at stake here to get distracted by the so-called “tittle-tattle”. As Henry Porter noted in an excellent piece for the Observer, “we have been given a snapshot of the world as it is, rather than the edited account agreed upon by diverse elites”.

Consequently, after having seen a mere 0.5% of the cables so far, we already have clear evidence that suggests members of the British political establishment have engaged in, at the very least, highly undemocratic practice. With clarity the cables confirm that unelected officials, whose faces and names are unknown to the British public, are shaping foreign policy and international relations behind closed doors. Not only this, but these same officials expect and demand the privilege of secrecy in order to do so. This not acceptable in any modern democracy.

But as the first few ripples of Cablegate reverberate through Whitehall, the present coalition government scrambles to “secure its digital borders.” And this will, of course, inevitably lead to greater secrecy and even less transparency in the future. Thus the British media must not fail to harness the moment. The press, web publications and citizen journalists should together use Cablegate to arraign the political establishment, for the good of society and the health of democracy. “You’re going to have so much information about what we do... so use it, exploit it, hold us to account,” said Prime Minister David Cameron in a video posted on YouTube less than a month ago. Now is the time to hold him to his word.

This article originally appeared at: http://www.opendemocracy.net/ourkingdom/ryan-gallagher/wikileaks-use-it-exploit-it-hold-us-to-account

Cablegate

"There is not a crime, there is not a dodge, there is not a trick, there is not a swindle, there is not a vice which does not live by secrecy." – Joseph Pulitzer.

At approximately 6pm on Wednesday, Amazon ousted wikileaks.org from its servers after concerted and aggressive political pressure from America’s Homeland Security Committee. The move came after three solid days of ‘Cablegate’ – the largest intelligence leak in history. 251,287 dispatches from more than 250 US embassies and consulates, to be published slowly but surely in the weeks and months ahead. Among them are allegations of corruption, cover-ups and secret collusion between US and UK officials; dirty tactics exposed on a grand scale. Politicians, diplomats and corporations across the world must now be trembling. Could they be next?

As international reaction testifies, the repercussions of Cablegate are massive. Wikileaks is changing the world without invitation, and the political establishment does not approve. A global witch-hunt for Julian Assange, Wikileaks’ co-founder and figurehead, is now in full swing. Assange should be "hunted" and "executed" say prominent American politicians, who want him extradited and charged under the country’s 1917 Espionage Act, a law introduced to combat socialists and pacifists during the Red Scare. “Obama should put out a contract [to have Assange assassinated] and maybe use a drone or something,” said Professor Tom Flanagan, a former advisor to Canadian Prime Minister Stephen Harper. While in France, the birthplace of the Enlightenment, Wikileaks was described as a “threat to democracy”.

Even David Cameron, a devout convert to the church of “A New Politics”, has strongly condemned Wikileaks for their hand in Cablegate. “We condemn the unauthorised release of classified information," his spokesman said on Monday. “Governments need to be able to operate on a confidential basis when dealing with this kind of information.” Yet it was only 10 months ago, in February, that Cameron stood before an audience and proclaimed his commitment to open government and transparency. “Sunlight is the best disinfectant,” he said at the time.

In February, though, Cameron was not Prime Minister. He was still masquerading as a fresh faced candidate for change – a new alternative to the ugly political past. He could afford to pontificate about wild things like “open government” and “transparency” because there was no way to test him on it. He could tell the public what they wanted to hear, and then backtrack from his position once in government – the oldest trick in the book. His Cablegate position confirms this is indeed what he has done, quite blatantly, on the principle of “transparency”.

So far Cameron’s strategy on Cablegate has been one of avoidance and denial. "We are not going to get drawn into the detail of the documents," said his spokesman. The Prime Minister was instead in Zurich yesterday alongside David Beckham and Prince William, making a failed bid to host the World Cup in 2018. But he cannot evade the encroaching reality of this exposé for much longer. According to the cables released so far, British officials not only promised to protect US interests during the Iraq inquiry, but also made a deal with the US to allow the country to keep cluster bombs in the UK despite the ban on the munitions signed by Gordon Brown. The cluster bombs issue, it is said, was deliberately concealed from parliament and was approved by then Foreign Secretary David Miliband.

Clearly this raises serious questions about what appears to be a festering culture of backroom democracy across the western world, in which Britain is complicit. Diplomatic secrecy, as critics of Wikileaks argue, may well be in some cases entirely justified and necessary – however not if it means nurturing what Assange himself describes as the “corruption of governance".

The central problem, it seems, is that this “corruption of governance” runs so deep. It is embedded within the very DNA of the political class and has been for generations, hence the high-level, across the board political resistance and opposition to the brand of total transparency advocated by Wikileaks.

Yet as politicians and other powerful figures call for the head of Assange, in their haste they have forgotten he is merely the figurehead of the organisation. The human face of Wikileaks, he is bold, brave and deeply principled. His commitment and dedication to truth and justice should be applauded. But they could hang, draw and quarter Assange and Wikileaks would still survive – thrive, even. “You can kill a man but you can't kill an idea,” as the civil rights activist Medgar Evers once said.

And an idea is precisely what Wikileaks has become. It is no longer simply a website – it is a pure expression of democratic ideals, a philosophy realised by the force of technology. The powerful may condemn and attempt to repress Wikileaks and all it represents, but the situation has long since spun far from their control. Facilitated by the internet, a new battleground has been established. All traditions now hang in the balance and all bets are off.

This article appeared originally at: http://www.opendemocracy.net/ourkingdom/ryan-gallagher/wikileaks-truth-is-not-treason