Accountability in an age of democratic disquiet

By Ken Smith

September 28, 2018

This is an edited extract from the 2018 Solomon Lecture, delivered by Professor Ken Smith, ANZSOG Dean and CEO, in Brisbane on Monday at the Office of the Information Commissioner Queensland to mark International Right to Information Day (September 28).

The full Solomon Lecture, titled Trust, transparency and right to information: accountability in an age of democratic disquiet, is available on the ANZSOG website.

Smith reflects on his time as a bureaucrat in Queensland from mid-1990, in the wake of the 1989 Fitzgerald Inquiry that exposed endemic corruption in Queensland’s government and police and prompting the establishment of FOI laws.

Today, however, as governments again face declining trust, Smith advocates the need to return to the basics of the public sector’s fundamental purpose of ensuring public trust, and the need to always operate in the public interest rather than serve narrower sectional interests. Greater access to information and transparency will create greater legitimacy by ensuring representative democracies and their support institutions provide the space for deliberative and informed community engagement.

“A willingness to listen and deliberate is not something that comes easily. It is easier if it is supported by information rather than simply opinion.”

The below extract specifically deals with FOI regimes, government data and how they strength democracy.

Post-Fitzgerald, it is vitally important to remain vigilant

A culture of secrecy and a desire for non-disclosure are still commonplace across many areas of politics and the bureaucracy. It is vital that those who value a strong and effective liberal
democracy advocate for transparency being firmly on the side of the public interest. We need to understand our relative position as public officers within the community as elites and ensure that
government is not perceived as being of the elites, by the elites, and for the elites.

Arguments remain about transparency and right to information as if it is counter to good public administration.

Simplistic notions that FOI regimes are leading to a diminution of the public service’s capacity to give the three “F’s”—free, frank and fearless advice—are in my opinion overstated. Public service
advocates of this position (of whom there are many) posit that advice given by the public service could embarrass the minister or government if made public and therefore significantly affect the
productiveness and trust relationship between the public service and the political class.

Putting it perhaps overly simplistically, I would contend that this could happen for 2 broad reasons.

Firstly, the public service advice is not based on evidence, and is wrong or not nuanced to enable consideration of all workable options. Alternatively, the advice embarrasses the minister and the
government because it doesn’t align with its own world view to meet its own sectional interests, irrespective of the evidence presented.

In both cases there is a strong case for transparency. There is an incentive in the former to always provide the highest quality evidentiary advice, and in the latter to fully and explicitly explain a decision or position if an alternative decision is made to ensure it is legitimately and consistently in the public interest.

Of course, one might hope today’s threats to fair and ethical public administration are not so endemic, so entrenched, so egregious, as they were in the days covered by the Fitzgerald Inquiry.

But if we simply assume this is the case, if we let a transparent and accountable system fall into disrepair, we will be complicit in the unethical outcomes that inevitably follow.

In their 2008 review of the Queensland FOI Act, opened with a challenge to parliament, the executive and the public service. While they wrote with Fitzgerald front of mind, they were troubled too by more recent cultural failings in access to information:

“History in Queensland, as in many other jurisdictions, has proven unambiguously that there is little point legislating access to information if there is no ongoing political will to support its effects.

“The corresponding public sector cultural responses in administration of FOI inevitably move to crush the original promise of open government and, with it,

The battle for transparency is not won through one inquiry, or one piece of legislation. It is one that needs to be fought every day.

New technology, the rise of data and the role of media

I want to now move to comment on the importance of information transparency in the broader context of how governments decide what information they share with citizens.

We can’t have that discussion without recognising the huge changes in technology and the way we produce and share data.

More than half of the data developed by humanity, has been produced since the start of 2017. The challenge is that much of this data isn’t of use—it doesn’t have an evidentiary base.

And yet, from a commercial perspective data is seen as the new oil—the core of the business model of some of the most profitable global companies like Facebook and Google.

Governments collect and store huge amounts of data—both through initiatives like the Census and also as part of their routine activities of service delivery.

So what do we do with that data? How do governments use it to create public value?

The release of government information has always involved a calculation of costs versus benefits.

Under FOI regimes the costs, in terms of time and resources and potential loss of reputation if damaging information is released, are largely borne by governments.

The benefits are largely borne by the general public, through greater transparency, and quicker exposure of government failures.

Despite some pockets of fine reporting, media organisations do not have the capacity to join the dots and run sustained campaigns against systemic failure, unethical or corrupt conduct.

In Australia, as in any developed liberal democracy the media is an important part of the checks and balances that keep the system accountable and as some have positioned themselves to ‘keep the bastards honest’

The current fragmentation and concentration (ironically at the same time) of the media landscape, the collapse of advertising support for the business model of mainstream private media companies and the relentless campaigns against public broadcasting, both internationally and here, should disturb anyone concerned about the quality of government and independent critique to ensure we can collectively speak truth to power.

There is, however, some light on the horizon as new funding models are seeing a resurgence of quality mastheads and journalism.

See for example the resurgence of The New York Times, The Washington Post in the US and The Guardian here. Attempts at nobbling public broadcasters have also met with significant resistance, particularly in the UK and here. Hopefully we will reach a tipping point where there will be a reaction to so-called journalists more interested in being political players (you all know who I mean, across every media form) than in independently pursuing the truth to support broader rather than narrower sectional interests.

The response of governments should be to make it easier for players in the new media landscape to get accurate, relevant and timely information, not to obfuscate for their own partisan interests.

This asymmetry between cost and benefit means that as well as strong RTI laws, we need a culture within governments that understands the bigger picture—that the flow of information to the public is essential for scrutiny, accountability and the maintenance of trust in government.

Once we make that cultural shift—away from secrecy and towards transparency—another question arises.

Why limit our provision of information to access request regimes? What are the other opportunities to give taxpayers fuller access to the information they have paid for?

The rapid changes in technology mean that data can be collated, stored, reproduced and shared far more quickly, cheaply and easily than in the analogue era.

I think we all understand that the costs involved in sharing information are lower. What we find harder to imagine are the huge potential benefits that can flow form data sharing while protecting the privacy of individuals and households. This is particularly a challenge in our disjointed Federation.

Open data in action

New York University academic, and previous Obama administration advisor on open government, Professor Beth Noveck writes about the value of ‘open data’ as a counterpoint and complement to FOI legislation. She says that:

“FOIA is an inherently adversarial tactic focused on prying secrets out of government. Open data is not… [It] instead attracts collaboration by knowledgeable and passionate members of the public, who augment the manpower and skills often lacking in under-resourced public institutions.

FOIA tends to highlight the worst of government by demonstrating how public officials have tried to hide misdeeds. It emphasises malfeasance, invariably shaping public perception of government… by contrast, the open data legal framework may be advancing participatory democracy.”

What does she mean by open data? Here are four examples of open data in action, two involving government and two the private sector.

In the USA, several states have begun collecting information about doctors’ patterns of prescribing opioid pain medication, in an effort to tackle the prescription drug epidemic.

This information is now made public and, by transparently showing doctors their own practices in comparison to those of their peers, open data has changed the way that less responsible prescribers act. In Arizona, a pilot program has seen participating counties cut prescription rates by 10 per cent and overdoses by 4 per cent.

In Oakland, a pilot program has given citizens with first aid skills access to real time data and alerts on heart attacks or medical emergencies in their area, so they can act as first responders while paramedics arrive.

Collaborative use of open data, of course, is not limited to government.

During the Jakarta floods, Twitter donated its data to the University of Wollongong which used it to create real time map of flood conditions allowing residents to develop their own escape plans.

In the Ivory Coast and in Senegal, Orange Telecom anonymised customer call data and handed it to researchers who used the data to predict how waterborne parasites and diseases travel.

Both are great examples of potential public private data partnerships. Noveck also outlines how private data assisted governments in Europe in tracking refugees real time, rather than reliance on border checks and controls alone.

Of course, private companies are not going to hand over all their data, because it is not in their commercial interest.

But governments which are acting in the public interest need to consider how they might regulate private companies accessing huge amounts of valuable private data which can be used for a valid public purpose. Governments similarly need to unleash the data sets they hold for the broader public purpose and the private sectors.

We need to combine the innovation and flexibility of private data holders, with the traditional emphasis on public value of the public sector.

Technology has given us a new avenue to deliver major increases in public value.

In the Australian federal system, state and local governments and the communities they serve will benefit from data collected by federal departments and vice versa.

Innovative use of data may allow governments to compete and give us better insights into which levels of government are best placed to perform specific functions.

Any supporter of true federalism, and I am definitely one of them, would applaud this.

In Australia, we have been latecomers to open data – but this is changing.

Some of the key recommendations of the Productivity Commission’s final report on Availability and Use of Data, released in March last year have already been implemented. As well, Australia’s First Open Government National Action Plan 2016-18 which “commits” to the international initiative for reforms that “promote transparency, empower citizens, fight corruption and harness new technologies to strengthen governance” could be a key catalyst too.

We have national legislation to remove barriers to data sharing and integration across major public interest data sets and create trusted user access, as well as a complementary legislated concept of a new general Right for Consumers to exercise joint control in the sharing and use of their data.

The Chair of the Productivity Commission Peter Harris said at an ANZSOG/AIHW Conference on Big Data, that these recommendations were some of the most important he had been involved with.

He said that not only had the federal government fallen behind the private sector in its use of data, it was being outrun by the states.

While privacy is important, he describes it as “just one facet of the diamond called data”, and that “polishing only that one facet will not reveal the full value of the 21st century’s great new renewable resource.”

We need to take into account individual privacy concerns, and balance those with public benefits.

But shifting our focus to the opportunities provided by big data and treating government data as a national asset which should be managed in the interest of all Australians, should help us strike that balance.

ANZSOG, as it name implies also works across the ditch. New Zealand continues to rank the highest of all jurisdictions in a range of measures on trust and transparency (no. 1 of 180 countries, according to Transparency International; Australia is 13th). Last week, the NZ government announced that Cabinet Papers would be released after 30 business days, unless there are specific reasons not to do so, for documents lodged after 1 January 2019. Puts our 20 or 30 years into perspective.

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