FOI and eyes wide shut: even public servants want to know

By Suelette Dreyfus

Friday August 21, 2015

This is an expanded version of the address that Dr Suelette Dreyfus gave to the ANZSOG annual conference on transparency and engagement in the information age, following an address by Andrew Metcalfe, in Melbourne on August 5, 2015.

This room is full of Australia’s most senior public servants. You make decisions about the lives of ordinary Australian every day. My panel colleague former Commonwealth departmental secretary Andrew Metcalfe made the case for less FOI access in his speech, particularly for the communications between senior executives and a Minister. I am not going to make the case for the same level of FOI access.

I’m going to put the case for more FOI access.

“Is it really OK for the public service to want “to know” – to get to peek – but to ask the public not to do the same?”

Andrew took a straw poll of the almost 300 people in this room. First he asked every audience member to shut their eyes, because what he was asking was sensitive. He wanted a show of hands for how many senior public servants had been asked by a Minister, staff or colleague not to put major policy or administrative issues into writing because they might be FOI’d. I counted a bit over a dozen hands go up in response to his question. Then he asked secondly if anyone ever held back in providing the full range of issues because the materials might go into the public domain. Three people put their hands up. In other words, about one in a hundred.

I would put a different questions in a straw poll: How many of you closed your eyes and kept them closed during the first straw poll?

About a quarter of the public servants in this room put their hands up by my estimate.

That is in many ways more telling than the survey that Andrew has run. Because that says that some 75% of the people in the room did not close their eyes. They watched. They wanted to know.

They want the information, even if the information is supposed to be confidential in order to protect public servants’ identities and views on things.

Which is exactly how the public feels. The public wants to know. That is, after all, why we have FOI in the first place.

Is it really OK for the public service to want “to know” – to get to peek – but to ask the public not to do the same?

It’s an interesting comparison: 1 in a 100 public servants feel FOI impinges on their giving of frank advice versus 75 out of a 100 public servants who want to know so much that they peek despite being asked not to.

If one is a foil to FOI and the other a kind of mandate for it, in a democracy, FOI wins hands down.

Information wants to be free

Let me present two possible worlds to you. The first world is a vision #1, which is the internet as an open international platform for citizen engagement; it’s a public good, a library, an educator, a communications system. It’s about the Khan Academy letting kids from poor backgrounds learn how to code for free. It’s a precious archive of human knowledge and endeavour. In this vision, internet governance is open, transparent, distributed, and committed to universal access and reliability. The citizenry are engaged and networked and informed and alert. The internet becomes an expression of Aristotelian democratic ideals of freedom of expression, and virtual freedom of assembly. There are some elements at the fringe of this expression that are anarchic, libertarian and perhaps a bit Utopian. Without them, we would not know we that we had pushed the frontier hard enough. And in this vision, information wants to be and is, in fact, free. That’s Vision #1, and it’s kind of a vision of Hope. Remember hope.

There’s a Woody Allen joke that goes ‘You know, I feel so much better, now that I’ve given up hope.’ Well, that’s the second possible path.

Vision #2 is a digital world where we evolve to mirror an Information System. That’s where you have economic and democratic agencies morphing into agencies of data management. Corporations and governments assert eminent domain over their data, all their data. Rules will define access and usage privileges and restrictions. Data and information security match military-grade imperatives; all information is classified – top secret, secret or in some cases unclassified. All users are categorized – Authorized, Guests or Access Denied. The security objectives dominate all other objectives – objectives of openness and access. This vision is one that is built on objectives of control.

Those are the two possible visions that we could go towards. And it could be that we’ll end up somewhere between. But I hope our future is much more aligned with the first vision. Information Systems are a good way to organize data, but they’re not a form of democratic, free and open government.

The intrinsic problem is control, which is what much of Information Systems is about, versus balance, which is what healthy democracies are about.

In our community there’s a necessary balance between the rights of the citizen and the powers of the State. This balance has many tools that affect it. One of those tools is FOI. It’s a critical tool in making sure that this balance is kept just right – particularly for the individual citizen.

Can’t stop disruption

So to the question of whether there is too much FOI, I now want to touch on digital disruption.

“Because of a failed matching system, tens of thousands of people were actually denied the most fundamental right a citizen has — the right to vote.”

As McKinsey & Co’s new book “No Ordinary Disruption” points out, society is in a state of flux, and accelerating technological change is one of the reasons. Digital disruptions are everywhere. That’s important, because it means that we need to really think hard about the tools we’re going to be needing to keep this balance of power between the State and the citizen. We need to think not just for today, but also for tomorrow.

Two forces in particular underscore the importance of FOI in the future: First, the advent of Big Data and second, the growth in intelligent systems, which can match patterns and make decisions in an automated fashion.

Big Data makes government very powerful in its relationship with the citizen. This is even more so with the rise of intelligent systems, software that increasingly trawls, matches and analyses that Big Data. And it is moving toward making more decisions once made by human beings. Yet these systems can have quite serious flaws.

We have seen places such as Florida embark on data matching debacles to ‘scrub’ felons and dead people from voter roles. Faulty auto-matching saw more than 90,000 people lose their voting rights who should not have done so. Many were simple name matches. If there was a “Williams” felon, some other “Williams” was excluded. But there were also other flaws. So faulty was the matching that journalists reviewing the blacklists found 8 people were supposedly convicted before they were even born. More than 400 blacklisted people were described by the system as having felon conviction dates in the future. Because of a failed matching system, tens of thousands of people were actually denied the most fundamental right a citizen has in a democracy, the right to vote.

Why is this important? Because this particular case illustrates starkly and in full Technicolor what can go wrong with automated pattern matching. It also shows how easy it is for an individual to face serious individual injustice as a result. And it certainly upset the balance of power I discussed earlier.

The information asymmetry

The amount data used in auto-decision making is only getting larger. There are the biggies, giant data sets such as Medicare and Centrelink, but there are many other examples of data sets the government holds which may have very detailed personal individual information about its citizenry. There’s the Central Movements Alert List (CMAL), holding intelligence data about persons of interest to Australia; that’s more than 22 million records right there. The Biometrics Acquisition Matching System (BAMS) collects, stores and matches biometrics and biographical data. It holds about 3.8 million facial images, and about 115,000 fingerprints. Then there’s warrantless requests for metadata, another data set this time about the citizenry’s private electronic conversations and geo-locational movements based on their mobile phone use. Over the past four years the figures for all of the country would likely have totalled in excess of about a million authorizations. One single authorization request might have a two year’s worth of phone records.

“The warrantless metadata record requests alone exceeded citizens’ finalised FOI requests by a factor of more than ten.”

This information asymmetry is worse because all this information about the citizenry is not just a snapshot. It is becoming cradle-to-grave, from Maternal and Child Health records through Education Department evaluations to Death Certificates. It is, in effect, an Australia Card without the card.

Meanwhile, for those who complain that FOI is too burdensome, lets look at how much FOI action there really is relative to all those millions of citizen records governments is holding about its citizens.

Last year, the Commonwealth Government finalised 27,240 FOI requests.

The most active agency was Department of Immigration and Border Protection – accounting for about 11,854 of them. In second place, the Department of Human Services finalised 4436 FOI requests.

The warrantless metadata record requests alone exceeded citizens’ finalised FOI requests of government by a factor of more than ten. Australia has more than 20 million citizens. And all of the FOI requests we are generating is less than a tenth of the amount of data government is gathering about us on warrantless surveillance alone.

My rough estimate is that the ratio of completed FOI requests to actual client records held by the Commonwealth government is probably conservatively less than one in 10,000. In fact, we don’t know the real number. If someone does know, please do come tell me. My guess is that ratio is actually much smaller.

More cost effective than clearance creep

FOI is an essential tool for the citizen to fix individual injustices in the relationship with the state. I suspect we will see more of these type of injustices in the coming decade as intelligent systems use Big Data to make more of our human decisions. In fact, FOI is particularly well suited as a remedy exactly because it is a deep-dive tool, good for fishing out everything around a particular victim’s case. I suspect this also makes it quite cost effective as a remedy relative to larger system overhauls, in spite of politicians’ periodic public moaning about the costs.

“The ‘Creep’ has become pervasive. Yet imposing security clearance requirements reduces the pool of talent who can apply and erodes meritocracy system of the public sector.”

The rise of the security, surveillance and secrecy State means not only that more data is kept on citizens, but that much of it is behind a veil of secrecy. Information asymmetry between the citizen and the state is growing in this way too. Now there’s also “Tool Asymmetry”. Even if citizens had the same amount of information about the State as it has about them, they wouldn’t have the same powerful tools to be able to delve into and analyse that information. Thus the asymmetry is even greater. The overall impact of this is actually a lessening of the power of the individual citizen in his or her relationship within the State. The balance I spoke of earlier is at serious risk.

This is amplified by “Security Clearance Creep” across the whole of government, where more public servants seemed to be required to have clearances. My best estimation is that the number of Security Assessments and Clearances in total over the past five years could exceed half a million. That would include some visa assessments as well, but it’s still quite a lot. The ‘Creep’ has become pervasive. Yet imposing security clearance requirements reduces the pool of talent who can apply for a job, and it therefore erodes meritocracy system of the public sector. Critically, it also creates a climate – and often an IT structure – of secrecy that is poisonous to FOI.

One contact told me that their unit was moving into a new building, and they were warned that there would only be jobs in the new building for people who had security clearances. It’s chilling.

The paradox of this disruptive digital revolution is that there’s a risk of more data and information, but less democracy. The risk is more surveillance, more restricted information and more criminalization of information activism, whether that’s whistleblowing, the right to dissent, journalism – or the use of FOI for public accountability.

Protection for public servants

All of which leads to the second reason FOI deserves to be dusted off and put back in pride of place on the family mantelpiece: trust.

Various surveys show that citizens’ level of trust in government is not in a good place, with only 53% of taxpayers having a good level of confidence in the top tier of government in one and only 56% of respondents in another. According to survey respondents, trust requires communicating openly, honestly, transparently and frequently. Cutting pieces out of FOI isn’t going to help that trust. FOI is a trust verification mechanism. Expanding FOI, ensuring that it works quickly, removing economic barriers to accessing it – all these might actually go some way to rebuilding that trust. That is after all one reason why FOI was brought in all those years ago- to keep trust with the citizenry.

FOI also provides protection to public servants – a fact that is not lost on some who want to keep it just as it is. One described to me that it was far more often the politicians who had something to lose. This was because the civil servant would be on the record as having provided full and frank independent advice, while the politician “would have followed the instructions of the parade of lobbyists through their office – and they don’t want that coming out.”

The public needs to be able to know that. If some politicians don’t like that coming out, perhaps they should reconsider the way they make decisions.

Either way, the tools that keep that decision making accountable – like FOI – should not only stay embedded in full in our democracy, they should be expanded in scope as part of rebuilding trust levels with the citizenry in the future.

Why did 75% of public servants in the straw poll refused to close their eyes? Because they wanted to know. Not surprisingly, so does the public.

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