You are likely familiar with the Freedom of Information and Freedom of Information (Scotland) Acts, both of which came into force on 1 January, 2005. The Acts confer on the public a general right to make requests for information from public bodies. They also set out publication schedules, which require public bodies to make certain types of information proactively available.
FOI legislation is considered important because it is said to increase government transparency and accountability. It is said to contribute to a reduction in government secrecy and corruption.
Furthermore, access to information is often considered to be essential to support freedom of speech, and therefore is considered an essential feature of democratic society. As any information professional knows, access to information is crucial for individual and collective decision-making.
As the Acts only apply to public bodies, my research concerns the question of what happens when public services are outsourced to the private sector. Over 630,000 public sector jobs have been lost since 2010, and outsourcing has been presented as a way to alleviate the pressures caused by cuts to frontline services. Approximately 14% of UK public services are now outsourced, and this number is set to increase. So whilst outsourcing is hardly new, the scale and pace at which it now occurs is significant.
The impact of outsourcing on access to information under FOI has been identified as a challenge. It is cause for concern for both FOI supporters and the Scottish and UK Information Commissioners. It has also recently attracted more attention from politicians, including Graeme Morris and Caroline Lucas, who both introduced private members’ bills late last year and early this year, calling for the Acts to be extended to include private or voluntary companies performing public services.
Other suggestions that have been put forward include introducing contractual provisions that would require the contractors to be transparent in operations. In March Justice Minister Simon Hughes announced that a consultation on this would be taking part this year. A large part of my research is going to involve examining the various legal mechanisms that have been suggested with the goal of determining which would be most effective in protecting access to information.
At the moment my work focuses on examining the conceptual underpinnings of the FOI regime. This involves critically examining the concepts of transparency, accountability, and participation. These are the three most commonly cited objections of FOI legislation in the UK and elsewhere, but their meanings are often vague, fluid, and highly context-dependent.
Part of exploring these concepts involves looking at the rapid diffusion of FOI legislation in recent years. In 1990, only 13 countries had FOI legislation in place, but there has been an ‘explosion’ since then and now over 90 countries have legislation, with more under consideration. This is often attributed to the ‘third wave of democratisation’ and the need for accountable and transparent governance in the new democracies. I am examining this more closely in order to understand how this actually developed and how this fits in with some of the dominative narratives surrounding FOI.
It also involves looking at the various justifications that have been put forth for FOI legislation. For example, is access to government-held information a fundamental human right, or is it a tool that the public can use to ensure that taxpayer money is spent wisely? Or is it both? And do these different justifications have different implications for a potential legal solution?
One of the most challenging aspects of my research is that there is so much currently developing with regards to FOI and private contractors. I have already mentioned the private members’ bills and the consultation. There was also a recent legal judgment in the case of Kennedy v. Information Commissioner that appears to acknowledge a common law right of access to information apart from FOI. This can make it difficult to keep up with the latest developments, but it also means that the potential for research impact is greater.
I have to confess that prior to this workshop, I had not given much conscious thought to my research impact. That isn’t to say that I hadn’t thought about it at all, but I figured that the legislative and policy implications of my topic are rather obvious. I am now more aware of the different types of research impact and the different ways in which I can (potentially) communicate my research. In fact, I had already been taking steps to engage with different stakeholders, even though I had not thought of it in that way.
For example, since beginning my PhD last October, I have been attending conferences aimed at both practitioners and academics, and I plan to present a poster on my research at IFLA this summer. I have also been engaging with politicians and FOI campaigners on social media, and I have written about my preliminary research for blogs aimed at a wider audience.
I have also realised that even though I have not yet begun collecting data on the empirical part of my research, the work I have been doing on the conceptual foundation of FOI has the potential to shape discussion over the purpose and potential of FOI. For example, I am finding that some of the concepts underpinning the FOI movement – transparency, accountability, and participation – have not always been clearly defined or have been taken for granted. Therefore, I am aiming to learn more about how these concepts have been constructed and how they relate to FOI.
This conceptual work is important because FOI lacks a clear conceptual or theoretical framework. In fact, there are multiple theories as to what the FOI legislation is actually meant to achieve, not to mention the rather high expectations held by FOI supporters or the negative anecdotes offered by critics. This has resulted in conceptual confusion surrounding FOI, and now that researchers are trying to evaluate the impact of FOI legislation, there is a demonstrated need for conceptual clarity.
In the future, I plan to look more closely at the various legal mechanisms that have been suggested or could be introduced in order to preserve access to information when public services are outsourced. I will be using a comparative approach to see how similar challenges have been addressed in the United States and in continental Europe.
My research could potentially have an impact on public policy, particularly as it is contributing to the small but growing body of literature on empirical research on FOI. There is currently a great deal of political and public interest surrounding the extension of FOI responsibilities to the private sector, and my work could potentially contribute to that debate.
However, I would like to offer a caveat. As I mentioned, I have begun my research by critically examining some of the commonly-held assumptions of my topic. This is customary practice for doctoral researchers. For example, the view that access to information is a fundamental human right is widely held by many FOI supporters, but it has actually only recently been constructed as a human rights issue. Up until the 1990s, FOI was introduced as a way to control the administrative state.
Therefore, I question whether the impact of my research will have unintended or unforeseen consequences. What happens if my results contradict the policies or practices of certain stakeholders? Is there a potential danger in engaging too closely with stakeholders who have different aims? How can we all work together? How can I balance my academic work with public engagement and policy work?
Or perhaps my reservations have more to do with the fact that I have traditionally thought of ‘research impact’ as referring to research that has an immediate application, either for commercial or societal benefit. I need to become more comfortable with research that potentially challenges beliefs that are held by the public and by myself.
Concluding slide. Concluding thoughts, overrun, and credits.
Erin Ferguson: University of Strathclyde
Erin C. Ferguson, University of Strathclyde School of Law