Posts Tagged ‘opendata’
Regularly Scheduled FOI Requests as a None Too Subtle Regular OpenData Release Request? And Some Notes on Extending FOI
A piece of contextualisation in an interview piece with Green MP Caroline Lucas in Saturday’s Guardian (I didn’t do this because I thought it was fun) jumped out at me as I read it: More than 50 energy company employees have been seconded to the government free of charge, and dozens of them to the department of energy and climate change.
How about the gov.uk site?
(I don’t know what’s going in the fight between GDS and the data.gov.uk folk ito getting central gov #opendata info discoverable on the web, but the http://www.gov.uk domain seems to be winning out, not least because for departments who’re in that empire, that’s where any data that eventually linked to from data.gov.uk will actually be published?)
So – it seems folk have been FOIing this sort of information, but it doesn’t look as if this sort of information is being published according to a regular schedule under an #opendata transparency agenda.
Anyone would thing that the UK government wasn’t in favour of a little bit of light being shone on lobbying activity…
I guess I could put a request in to the ODUG (Open Data User Group) for this data to be released as open data, but my hunch is it’s not really the sort of thing they’re interested in (I get the feeling they’re not about open data for transparency, but (perhaps unfairly…?!) see them more as a lobbying group (ODUG membership) for companies who can afford to buy data but who would rather the tax payer pays for its collection and the government then gifts it to them).
More direct would be to find a way of automating FOI requests using something like WhatDoTheyKnow that would fire off an FOI request to each central government department once a month asking for that previous months’ list of secondments into and out of that department in the preceding month (or in the month one or two months preceding that month if they need a monthly salary payment cycle or two for that data to become available).
Of course, it does seem a bit unfair that each government department should have to cover the costs of these requests, but as it stands I can’t make an FOI request of companies that choose to engage in this sort of presumably public service.
Making private companies offering public services under contract subject to FOI does seem to be on the agenda again though, after being knocked back around this time last year?:
An extension to the scope of the FOI Act was proposed a few weeks ago in the Public Bill Committee debate of the morning of Tuesday 18 March 2014 on the Criminal Justice & Courts Bill, columns 186-193:
Dan Jarvis: I beg to move amendment 37, in clause 6, page 6, line 29, at end insert—
‘(1A) The Code of Practice must include a requirement that a person carrying out electronic monitoring who is not a public authority as defined by section 3 of the Freedom of Information Act 2000 shall provide information in respect of the carrying out of electronic monitoring in the same manner as if they were such a public authority.’.
The Chair: With this it will be convenient to discuss amendment 38, in schedule 4, page 73, line 25, at end insert—
‘(1A) Where the Secretary of State enters into a contract with another person under paragraph 1(1), and that person is not a public authority for the purposes of section 3 of the Freedom of Information Act 2000, that person shall be designated by the Secretary of State as a public authority for the purposes of that section in relation to that contract.’.
I remind the Committee that this group is about freedom of information provisions as they apply to aspects of the Bill. Members will have the opportunity to debate the detail of secure colleges later.
Dan Jarvis: I serve notice that, unless sufficient assurances are received, we intend to put the amendments to a vote. [ Interruption. ] Dramatic! I sensed for a moment that there was a higher authority raising a concern about these amendments, but I shall plough on regardless, confident in the knowledge that they are true and right.
Anyone who knows the story of Jajo the rabbit will understand what I am about to say. For those members of the Committee who do not know, Jajo was the pet rabbit successfully registered as a court translator and then booked in for shifts following the Ministry of
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Justice’s outsourcing of language service contracts. Jajo’s short-lived translation career says less about his talent and much more about the importance of ensuring that public contracts delivered by private providers are properly managed.
As was touched on, Ministers now have to manage another fall-out. Two private providers of electronic monitoring overcharged the taxpayer by millions of pounds for tagging offenders who had died or moved abroad, or who were already back in prison. That underlines the case for the amendments.
Both amendments would seek to bring non-public providers of public services contracted out under the Bill within the scope of the Freedom of Information Act. Amendment 37 relates to clause 6 and the code of practice that would be issued by the Secretary of State on the processing of data related to electronic monitoring. It would require anyone carrying out monitoring related to the clauses to comply with FOI requests in the same way as public bodies do. Amendment 38 relates to schedule 4 and the arrangements for contracting out secure colleges, which are detailed in part 2. It would require anyone contracted to provide a secure college to comply with freedom of information in the same way. Both our proposals are worthy of consideration by the Committee.
We all know that the landscape of how public services are delivered is changing. The Government spend £187 billion on goods and services with third parties each year, about half of which is estimated to be on contracting out services. About half of all spending on public services now ends up in private providers’ hands and more and more private providers are bidding to take on the responsibility and financial rewards that come with large-scale public contracts. As outsourcing is stepped up, more and more information about public services and public money is being pulled out of the public domain. That presents a particular challenge that we must tackle.
As the Information Commissioner told the Justice Committee last year,
“if more and more services are delivered by alternative providers who are not public authorities, how do we get accountability?”
The rewards that third parties stand to gain need to go hand in hand with the duties of transparency and information sharing. The public should be able to ask about how, and how well, the service they are paying for is being run.
The Freedom of Information Act does provide for supply-chain companies to be considered to be holding information on behalf of a public authority. In practice, however, contracted providers in the justice sector are not subject to anywhere near the same transparency requirements as publicly-run services. Private prisons, for example, are not subject to FOI in the same way as public prisons and the experience of G4S, Serco and others will have influenced many other companies not to be as forthcoming as they might have been. That is why we need to build freedom of information into the contracts that the Government make with third parties.
The Committee will be aware that such an approach was recommended by the Public Accounts Committee in its excellent report published last week. It made the
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point that many Departments are not providing information on how those contracts work on the grounds of commercial confidentiality. The public will not accept that excuse for much longer.
Let me conclude my remarks by offering the Committee a final quote. Someone once said:
“Information is power. It lets people hold the powerful to account”
and it should be used by them to hold their
“public services to account”.
I agree with the Prime Minister. Two years ago, he spoke about
“the power of transparency”
“why we need more of it.”
He also spoke of leading
“the most transparent Government ever.”
Labour has pledged that the next Labour Government will deal with the issue by bringing companies providing public contracts into the scope of FOI legislation.
Freedom of information can be uncomfortable. It can shed light on difficult issues and be problematic for Government Ministers, but that is the point. The Committee has the opportunity today to improve the Bill and to get a head start.
Dr Huppert: I will not detain the Committee. I share the concern about the lack of FOI for private organisations providing public services. My colleagues and I have expressed concerns about that for many years, and the previous Government were not very good at accepting that. It is good news that the Labour party may undo that error.
Mr Slaughter: Can the hon. Gentleman say what steps he and the coalition have taken to extend FOI in the past four years?
Dr Huppert: Not as many as I would like, but we have seen progress in some areas; we did not see any at all when the hon. Gentleman was a Minister. I hope we will see the correct drive. I share the concern that we need transparency when public services are delivered by private companies. They must not be shielded. I look forward to hearing what the Minister has to say, because he has commented on such issues before.
It is important that the matter should be dealt with on a global scale. I think the shadow Minister would agree that the case is broader. I hope to hear from the Minister that there will be more work to look at how the issue can be addressed more generally, rather than just in a specific case. That would probably require amendment of the Freedom of Information Act. That is probably the best way to resolve the issue, rather than tacking it on to this area, but I absolutely share the concerns. I hope we can see more transparency, both from the Government—we are seeing that—and from the private sector as it performs public functions.
Yasmin Qureshi: The Justice Committee, of which I am a member, looked into the Freedom of Information Act and how it has been operating since it was passed many years ago. We spoke to different groups of people,
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representatives of councils and local authorities, the Information Commissioner and pressure groups. Generally, the view was that the Freedom of Information Act has been a force for good. The thing that people mentioned time and again was the fact that it applies only to public authorities and has a narrow remit in private companies. A lot of concern was expressed about that.
As my hon. Friend the Member for Barnsley Central said, just under £200 billion is being spent by the Government for private companies to carry out public work. The number of outsourcings could increase, especially in the criminal justice system. In the probation service there will be contracting out and privatisation, as well as changes in the criminal justice system in relation to legal aid and suchlike. We have concerns about the criminal justice system and the number of companies that will be carrying out work that the state normally does. It is an important issue.
Will the Minister give us an undertaking for whenever Government money is given to carry out work on behalf of the Government? Local authorities and Government Departments have to provide information, and it should be the same for private companies. At the moment, as the shadow Minister mentioned, the agencies providing some of the public work give some information, but it is not enough.
It is often hard to get information from private companies. It is important for the country that we know where public money is being spent and how private companies respond to such things. We can have party political banter, but freedom of information was introduced many years ago and has been working well. Freedom of information needs to be extended in light of the new circumstances. I ask for a clear commitment from the Government that they will encapsulate that in the Bill. They now have that opportunity; the Labour party has said that, if it was in government, it would certainly do so. The lacunae and the gaps would be addressed by the amendment, which would make it clear exactly how the regime applies. [Interruption.]
The Chair: I apologise for the background noise. We are looking into the cause.
Jeremy Wright: Thank you, Mr Crausby. I hope Jajo the rabbit is not responsible.
As the hon. Member for Barnsley Central said, amendment 37 seeks to introduce a requirement as to the contents of the code of practice that the Secretary of State will issue under proposed new section 62B of the Criminal Justice and Court Services Act 2000, which is to be introduced through clause 6. The Secretary of State would have to include provisions in the code of practice requiring providers of outsourced electronic monitoring services to make information available in the same manner as if they were subject to the provisions of the Freedom of Information Act. The aim of the amendment seems essentially to extend the Act to providers of electronic monitoring not already subject to its provisions.
Amendment 38 has the same basic intention in that it seeks to extend the Freedom of Information Act to providers of secure colleges that have entered a contract with the Secretary of State to do so under schedule 4. The approach differs, however, because amendment 38
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would extend the Act directly, whereas amendment 37 seeks to extend its obligations through code of practice guidance.
In other words, both amendments would require private providers not currently subject to the Freedom of Information Act to make information available both in response to FOI requests and proactively through publication schemes. Section 5 of the Act already provides a power to extend the Act’s provisions to contractors providing public services. For reasons I will try to outline, the Government do not currently propose to adopt that approach and are adopting an alternative method to ensure transparency. I am aware, however, of the long-standing and serious concerns raised on the position under the Act of private providers of public services. It might help the hon. Member for Hammersmith to know that the Government are committed to, and have taken steps to extend, the Act. More than 100 additional organisations have been included since 2010, and we are considering other ways in which its scope may be widened.
The issue of outsourced public services was considered in some detail during post-legislative scrutiny of the Freedom of Information Act by the Select Committee on Justice in 2012. I do not know whether the hon. Member for Bolton South East was a member of the Committee of that time, but the Committee rightly issued a reminder that
“the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers’ money”.
The Committee recommended the use of contractual provisions, rather than the formal extension of the Act, to ensure that transparency and accountability are maintained. In particular, the Committee said:
“We believe that contracts provide a more practical basis for applying…outsourced services than partial designation of commercial companies under section 5 of the Act”.
The Committee also feels that
“the use of contractual terms to protect the right to access information is currently working relatively well.”
The Government’s approach is consistent with that recommended by the Justice Committee.
In addition to information being made available proactively, the Government are taking steps to issue a revised code of practice under section 45 of the Freedom of Information Act to promote transparency on outsourced public services in response to FOI requests. The code of practice will be issued later this year and will promote and encourage the use and enforcement of contractual obligations to ensure that private bodies not subject to the Act provide appropriate assistance where information about outsourced public services is requested from bodies that are subject to the Act.
The Government recognise that only a small amount of information held by private providers is currently often formally subject to the Act. Our code of practice will encourage public authorities to go further, to interpret their freedom of information obligation broadly and to release more information on a voluntary basis, where it would be in the public interest to do so. In the event of non-compliance, it will also be possible for the Information Commissioner to issue and publish a practice recommendation setting out steps that, in his view, the public authority should take to promote conformity with the guidance.
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Mr Slaughter: I seem to remember taking part in the Westminster Hall debate arising out of the Justice Committee’s deliberation and I do not think that it was very happy with the approach that the Government are taking, particularly where they are seeking to restrict freedom of information further. Does the hon. Gentleman accept on the basis of what he has just said that this will not be a level playing field and that the same requirements that apply to public bodies will not apply to private organisations undertaking an effectively identical role? Does he accept that, whatever the merits of his scheme, it does not to far enough and does not address the comments of my hon. Friend the Member for Barnsley Central?
Jeremy Wright: The hon. Gentleman will recognise that the organisations we are talking about extending the provisions of the Act to cover vary hugely in size and level of resources. The concern is to draw the appropriate balance between giving correct access to information and not imposing intolerable burdens on organisations, particularly smaller ones. That is the balance that has to be struck. We are looking at ways in which we can continue to make public authorities responsible for supplying information but ensure that it comes from the place where it originated, which may be those other organisations.
Mr Slaughter: That is a different argument and one that is often tried. It was tried in relation to universities and to the smaller district councils much beloved of the hon. Member for Bromley and Chislehurst. There are already limitations within the Act. There are safeguards for organisations in terms of the amount of time and cost. Why are they not sufficient?
Jeremy Wright: As I said, there is a balance to be struck. We attempt to strike that balance correctly with our proposals. If I can explain what we want to do a little more fully, perhaps the hon. Gentleman will be reassured—although frankly I doubt it. There is an opportunity for us to look at the issue in a sensible way with the code of practice. Applying our forthcoming code of practice guidance across the public sector will ensure that transparency and response to freedom of information requests will be maintained in a consistent way. This is preferable—I agree with my hon. Friend the Member for Cambridge—to the more piecemeal approach promoted by amendments 37 and 38.
The success of our own code of practice will be monitored by the Ministry of Justice and the Information Commissioner. We were clear in our response to post-legislative scrutiny of the Freedom of Information Act that, should this approach yield insufficient dividends, we will consider what other steps are necessary. In summary, we are committed to ensuring transparency in relation to all outsourced public services, including electronic monitoring and secure colleges. We are taking steps to ensure that through the code of practice to be issued later this year. On that basis, I invite the hon. Gentleman to withdraw his amendment.
Yasmin Qureshi: The Minister referred to the Select Committee on Justice and its recommendations. As you know, without going into the detail of that discussion, Select Committee recommendations sometimes tend to
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be compromises. At the time, three issues were in the mind of the Select Committee. First, it did not realise that a legislative opportunity would come so soon in which to put the measure in a more codified way with a clearer legal obligation. Secondly, there was quite a lot of discussion about private companies.
The Select Committee accepted that the Freedom of Information Act should not apply to purely private companies carrying out purely private work; it was not really arguing against that. However, here we have an opportunity to codify once and for all in legislation the provision that the FOIA should apply whenever public money is paid to a private company to carry out work. That would be a fairly straightforward provision. I do not see why we need to go down the complicated route of using a code of practice, putting in a specific provision in a new contract each time something happens. Why can we not just have a general provision that applies to every situation?
Jeremy Wright: I was a member of the Justice Committee before the hon. Lady was, so I understand her point that recommendations of the Select Committee are a matter of discussion and compromise. However, they are made on a cross-party basis, and paid all the more attention to for that reason. I quoted directly from the Select Committee’s conclusions in what I said earlier.
On the hon. Lady’s other point, this may be an earlier legislative opportunity than the Select Committee anticipated, but of course, it is only an opportunity in relation to specific policies. Again, I rather agree with the point made earlier by my hon. Friend the Member for Cambridge: there is an argument for addressing the issue, not on a piecemeal basis, but more comprehensively.
The hon. Lady’s final point is that the approach that we have set out—using a code of practice—is inadequate and that a statutory approach should be introduced by amending primary legislation. An initial approach of using a code of practice is a sensible one. She will recognise that amendment 37, tabled by the hon. Member for Barnsley Central, deals with a requirement in a code of practice, not primary legislation. Amendment 38 is different, but in relation to electronic monitoring, on which a number of concerns have been expressed, the hon. Gentleman’s chosen vehicle is a code of practice. The code of practice approach appears to be welcomed by both sides of the Committee.
Dan Jarvis: I have listened carefully to the Minister’s response. Clearly, we will want to look carefully at the detail of what he has said about a code of practice.
I agree with my hon. Friend the Member for Bolton South-East that the Committee has an opportunity this morning to make progress on redefining the freedom of information. I have heard the Minister’s response to that point, but the reality is that the move would be popular with the public.
There is no doubt that the landscape in which public services are delivered is changing. The Opposition have pledged to reform freedom of information if we are in government from 2015. I am mindful of the Prime Minister’s comments, which I quoted earlier. He said:
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“Information is power. It lets people hold the powerful to account”,
and it should be used by them to hold their public services to account.
Mike Kane: Does my hon. Friend agree that, as the contracting out of public services expands, the public’s right to information shrinks?
Dan Jarvis: I agree absolutely. There is a degree of inevitability that we will see change in the area. The debate is about how we do it, and it is important that we have that debate. We have tabled the amendments partly so that we can take the opportunity to debate such issues.
Mr Slaughter: There is another point here, which is that the Ministry of Justice is particularly vulnerable on the issue. We have had the privatisation of the probation service and the scandals regarding tagging. We will come to later in the Bill to proposals about the externalisation of the collection of fines and other matters. First, that is going on wholesale in the Department, and secondly, it is defective in many aspects. It is particularly relevant that the Minister should accept that the proposals in the Bill are not sufficient.
Dan Jarvis: My hon. Friend is right. In the context of the delivery of public services within the Ministry of Justice remit, this is a particularly relevant, timely and important issue. It has been incredibly useful to have the opportunity to debate it owing to the tabling of the amendments.
I mentioned that I was mindful of the Prime Minister’s comments, and I am mindful of the fact that the Justice Secretary has also indicated a desire to reform freedom of information. Given that there is a general acknowledgment that the status quo is not acceptable and despite what the Minister has said in response to our amendment, I will press it to a vote.
The amendment was defeated.
An hour or so later, the government took this line:
Freedom of Information Act
23. Lindsay Roy (Glenrothes) (Lab): What plans he has to bring forward legislative proposals to expand the scope of the Freedom of Information Act 2000.
The Minister of State, Ministry of Justice (Simon Hughes): There has been good progress in extending the implementation of the Freedom of Information Act because the coalition Government pledged to extend its scope to provide greater transparency. We extended it in 2010 to academies, in 2011 to the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service, and last year to 100 companies wholly owned by more than one public authority. The next item on the agenda is to do with Network Rail, and we are awaiting a view from the Department for Transport as to whether it thinks it would be appropriate for that to be implemented this year.
Lindsay Roy: What benefits have accrued to the Government and citizens from the implementation of the Act, and when does the Minister plan to extend its scope further?
Simon Hughes: We intend to extend it further as soon as is practical. One specific issue that I hope will be of interest to the hon. Gentleman—as it is to colleagues of his, including those who have come to see me about it—is that we intend to publish a revised code of practice to make sure that private companies that carry out public functions have freedom of information requirements in their contracts and go further than that. We hope that that will be in place by the end of this year.
Mr Mark Harper (Forest of Dean) (Con): There is one area where the Minister should perhaps look at narrowing the scope of the Act, because my understanding is that requests can be made by anybody anywhere on the face of the earth; they do not have to be British citizens. It is not the role of the British Government to be a taxpayer-funded research service for anyone on the globe. May I suggest that he narrow the scope to those for whom the Government work—citizens of our country?
Simon Hughes: I well understand my hon. Friend’s point. There will be two consultations this year: first, on precisely such issues about the scope of the current legislation to make sure that it is not abused while we retain freedom of information as a principle of Government; and secondly, on extending it to other areas where we have not gone so far.
Dr Huppert:I read out the quote from someone who has made the position clear when it comes to private companies carrying out public functions. Indeed, the code of practice has exactly the wording used in amendment 11, which the hon. Gentleman supported when we debated it on Tuesday. I do not want to take up too much of the Chairman’s kindness to discuss an issue that was rejected at that point, but it is happening as we wanted.
The matter was also touched upon a couple of days later in a Public Bill Committee on the Criminal Justice and Courts Bill (Official Report, Thursday 20 March 2014, 257-259) where accountability around public contracts delivered by private provides was being discussed:
Mr Slaughter: Absolutely not. I hope that the hon. Gentleman has read the article about Jago the rabbit that my hon. Friend the Member for Barnsley Central (Dan Jarvis) and I wrote for The Independent yesterday [It’s time we extended Freedom of Information to public services run by private companies – just ask Jago the Rabbit], which dealt with what should be done, which is to bring these companies within the ambit of FOI, and what the Minister of State did—with his usual skill, shall we say?—at Justice questions on Tuesday. He implied that that was what was going to happen, whereas in fact he was doing nothing more than putting round the line that the Cabinet Office has already indicated.
If I am wrong about that, I will give way in a moment and the hon. Gentleman can come back to me, but my understanding is that the Government—both parts of it, as long as they are just about coalescing—are of the view that the contracts that are drawn up should include this notional transparency. That is to say that they will encourage public authorities to encourage private companies to put clauses into contracts that will expose as much as possible, within the realms of commercial confidentiality. So the contracts will be open, with publication on websites and so forth of as much information about the contract as the two parties think fit. What we will not have is a duty on those private companies—in so far as they are carrying out public functions—to comply with the terms of the Freedom of Information Act, as would be the case in the public sector.
I accept that they are two sides of the same coin. On the one hand, of course it is a good idea that the information is made available voluntarily, but if it is not—either because the company does not choose to do so or because the contract is not drafted sufficiently well to ensure that it must—the citizen must have the right, through FOI, to require that information to be made available. As far as I am concerned, that is not what was said on Tuesday. I know that there is consultation going on, but if it is the intention of the Government—at least the Liberal Democrat part of the Government—to follow the line taken by my right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Lord Chancellor, which he has repeated often in recent months, and require all those private companies performing public functions to come within the requirements of the Freedom of the Information Act, I would be pleased if the hon. Gentleman said so now.
Mr Slaughter:I take from that comment that even the hon. Gentleman does not understand what the Minister of State, Ministry of Justice, the right hon. Member for Bermondsey and Old Southwark, says, so opaque is it. If nobody, including the Minister, is going to answer my question, the answer will no doubt come out in the wash on a later occasion. However, it seems to me that that is not what is being promised. If it were, the Minister would be jumping up and claiming credit for it, but he is not. Therefore, I assume that that is not the case.
The significance of that is that those four companies about which I have just raised doubts—G4S, Serco, Capita, and we can safely add Atos—all told the Public Accounts Committee that they were prepared to accept the measures that the Committee proposed. It therefore appears that the main barrier to greater transparency lies within Government.
That is where we are. Even the companies that want to put themselves and the interests of their shareholders first are more keen on transparency and on answering the legitimate questions that are being asked by everyone— from ourselves to the chief inspector of prisons—than this Government are.
I say that because if we are to take this further leap down that path, it is only right that the Government do not just challenge, as the Minister has said, acknowledged frauds, but look at the entire performance behaviour, as well as the number of available companies that could step into the breach and deal with these matters.
What we must conclude from the conjunction of clauses 17 and 18 is that, first, the Government are prepared to take this leap in the dark, in terms of the reconfiguration of the youth estate and, secondly, that they are prepared to leave that entirely in the hands of the people who failed so many times in so many contracts, not least in running parts of the adult prison service.
For more on some of the specifics, see the House of Commons Public Accounts Committee report on “Contracting out public services to the private sector”, which for example recommended “that the Cabinet Office should explore how the FOI regime could be extended to cover contracts with private providers, including the scope for an FOI provision to be included in standard contract terms; that neither the Cabinet Office nor departments should routinely use commercial confidentiality as a reason for withholding information about contracts with private providers; [and that] The Cabinet Office should set out a plan for departments to publish routinely standard information on their contracts with private providers”.
There’s also a couple of related private members bills floating around at the moment – Grahame Morris’ empty Freedom of Information (Private Healthcare Companies) Bill 2013-14 “to amend the Freedom of Information Act 2000 to apply to private healthcare companies”, and Caroline Lucas’ Public Services (Ownership and User Involvement) Bill 2013-14 “to put in place mechanisms to increase the accountability, transparency and public control of public services, including those operated by private companies”. The latter >a href=”http://www.publications.parliament.uk/pa/bills/cbill/2013-2014/0160/cbill_2013-20140160_en_2.htm#l1g5″>proposes:
(1) Where a relevant authority starts the process of procurement for a public services contract, it must make available to the public details of all bids received prior to the conclusion of the procurement exercise.
(2) Where a relevant authority enters into a public services contract, details of that contract shall be made available to the public within 28 days of the procurement decision.
6 Freedom of information
(1) The Secretary of State must designate as a public authority, pursuant to section 5(1)(b) of the Freedom of Information Act 2000, companies or other bodies which enter into a public services contract.
(2) “Public services contract” has the meaning contained within section 8 of this Act.
(3) The Secretary of State shall maintain a list of companies designated under section 6(1) of this Act.
(4) Requests under the Freedom of Information Act 2000 in respect of such companies or bodies can only be made in respect of information relevant to the provision of a public services contract.
(5) The Secretary of State must designate as a public authority, pursuant to section 5(1)(b) of the Freedom of Information Act 2000, any utility company subject to regulation by regulatory authorities as defined in section 8.
Finally, on the accountability and transparency thing, there’s a consultation on at the moment regrading “smaller authorities with an annual turnover not exceeding £25,000, including parish councils, [who] will be exempt from routine external audit” but instead will be subject to a transparency code (Draft transparency code for parish councils – consultation).
Related: Spending & Receipts Transparency as a Consequence of Accepting Public Money? If you accept public money for contracts that would otherwise be provided by a public service you should be subject to the same levels of FOI and transparency reporting. Why should public services have to factor this in to their bids for running a service when private companies don’t?
One of the things I’ve been pondering lately is the asymmetry that exists between the information disclosures that public bodies are obliged to make compared to private ones. My gut feeling is that the public bodies may be placed at a disadvantage by these obligations compared to the private companies, though I guess I need to find some specific examples of this. (Cost may be one; having to release data that can be used by competitors in a procurement exercise may be another; if you have any good examples, please post them in the comments…)
To start with, let’s see how the field is currently set in the area of “transparency” (at least, in a spending sense).
Central government spend over £25k
The obligation on NHS bodies to publish spending data on transactions over £25,000 appears to come via HM Treasury reporting guidance on Transparency – Publication of spend over £25,000 (9th September, 2010), which was released in support of a Prime Ministerial letter of 31st May 2010 to Secretaries of State:
2.1.1 This guidance applies to all parts of central government as defined by the Office for National Statistics, including departments, non‐ministerial departments, agencies, NDPBs, Trading Funds and NHS bodies. There are a limited number of exceptions to the requirement to publish. The Intelligence Agencies are completely exempt from this requirement. The following are also not subject to this requirement:
• Financial and non‐financial public corporations
• Parliamentary bodies
• Devolved Administrations
2.1.2 However it is recommended that these bodies adopt this guidance as best practice. Separate guidance is being prepared for local authorities.
2.1.3 Where an organisation comprises both a central government body and a public corporation (e.g. the BBC), this requirement applies to the part of the organisation that is classed as part of central government. The requirement does not apply to that part of the organisation that is a public corporation.
I’m not sure what power obliges these parts of government to conform to this guidance, or the requirement to publish spending data for transactions of £25,000?
A further letter – published on 7 July 2011 – added further obligations across a range of central government departments, as well as on the NHS.
(For information on Transparency in Procurement and Contracting see this supplier factsheet.)
Local authority spend over £500
By contrast, local authorities seem to be obliged to release spending data as a result of the publication of a Code of Recommended Practice for Local Authorities on Data Transparency (29 September 2011) (via) which was “issued by the Secretary of State for Communities and Local Government in exercise of his powers under section 2 of the Local Government, Planning and Land Act 1980 to issue a Code of Recommended Practice (The Code) as to the publication of information by local authorities about the discharge of their functions and other matters which he considers to be related”, where “local authority” means:
- a county council
- a district council
- a parish council which has gross annual income or expenditure (whichever
is the higher) of at least £200,000
- a London borough council
- the Common Council of the City of London in its capacity as a local authority
or police authority
- the Council of the Isles of Scilly
- a National Park authority for a National Park in England
- the Broads Authority 5
- the Greater London Authority so far as it exercises its functions through the
- the London Fire and Emergency Planning Authority
- Transport for London
- the London Development Agency
- a fire and rescue authority (constituted by a scheme under section 2 of the
Fire and Rescue Services Act 2004 or a scheme to which section 4 of that
Act applies, and a metropolitan county fire and rescue authority)
- a police authority, meaning:
(a) a police authority established under section 3 of the Police Act 1996
(b) the Metropolitan Police Authority
- a joint authority established by Part IV of the Local Government Act 1985
(fire and rescue services and transport)
- joint waste authorities, i.e. an authority established for an area in England by
an order under section 207 of the Local Government and Public Involvement
in Health Act 2007
- an economic prosperity board established under section 88 of the Local
Democracy, Economic Development and Construction Act 2009
- a combined authority established under section 103 of that Act
- waste disposal authorities, i.e. an authority established under section 10 of
the Local Government Act 1985
- an Integrated Transport Authority for an integrated transport area in England
The policy area associated with releasing local spending data is this one: Policy – Making local councils more transparent and accountable to local people
Writing in the Observer (“Open government? Don’t make me laugh”, September 29th, 2013), columnist Nick Cohen wrote:
Public services have always moved from daylight into darkness when private managers take them over. Ever since Labour passed the Freedom of Information Act in 2000, MPs, journalists, bloggers, academics, campaign groups and concerned citizens have been able to examine a prison, say, or medical service up to the moment of privatisation when the possibility of scrutiny vanished.
Sadiq Khan, Labour’s justice spokesman, grasped the need to extend freedom of information to cover the private recipients of public money…
As it is the job of parliament to hold the executive to account, Khan set a test for G4S. He asked for details of its restraint techniques. The company replied that it could not respond to freedom of information requests. The Ministry of Justice would, even though G4S trained the guards and knew what they did while the ministry did not,
The cloak of secrecy may soon be draped over the public sector as well. The Campaign for Freedom of Information is alarmed – to put it mildly – that ministers are talking about making it all too easy for civil servants to refuse to disclose information that the public needs to know – and once had a right to know.
The keenness with which the coalition is protecting commercial interests explains a ministerial manoeuvre that baffled me at the time. When libel reform came before parliament, I, along with everyone else, assumed that the private contractors moving into the NHS, prison service and just about every other service would not be allowed to sue their critics for libel. Under the far-from-liberal existing law, public authorities could not sue because in a democracy voters were free to speak their minds about the providers of public services even if what they said was not in the best possible taste. Indeed, as taxpayers and as the recipients of services, we had a dual justification for saying what we wanted without the threat that crushing financial penalties would bully us into silence.
In the new market-orientated order the coalition was so keen to embrace, any restriction on robust debate would be unfair as well as undemocratic. A failure to allow free speech would mean that businesses and charities could say what they liked about a local authority bidding for a service, but the local authority could not respond in kind for fear of a writ. The Conservatives would not give an inch. In the name of libel reform, they insisted that the freedom to argue in the public square must be restricted and gave private interests an exemption from criticism they denied to public services.
Whatever your feelings about public services and the extent to which private companies could or should be able to deliver them, it seems to me that the different transparency regulations are simply not fair. Public bodies receive public money, so you may argue that it is only right that they should disclose how they spend it. But when the spend with another organisation is so large that it is essentially devolving a significant part of a public body’s budget for spending by a private company, then that private body should be transparent about the way in which it further spends or otherwise allocates the money.
At the moment, transparency in the UK tries to make it possible for use to see who public bodies give money to. If one public body, A, spends with another public body, B, we can also derive information about the receipts that body B has from other public bodies, such as A. If A spends with private company C, we know that A has spent with C but not how C further disburses the funds. If C purchases a service from public body B (which could be a police authority, for example), we don’t know that C spent the public money with B, nor do we know (from the non-existent recipient column of C’s non-existent transparency spending data) that public body B received public money from public body A via private company C.
There is an asymmetry in the way we have sight of public spend when it passes through private hands.
The solution? How about we require private companies that obtain substantial receipts from public bodies (say, over £25k in a single payment) to account for their spend associated with contract in the matter of payments over £500. If the £25k/£500 limits are too onerous (government inflicting red tape on private enterprise, then how about £250k/£10k breakdown. As to the red tape: the public bodies have to dal with it and they are increasingly competing for the same pot of money with the private companies. Come on, chaps, play fair…
The Other Problem – Centralised Receipts
As well as the loss of oversight into how public money is being spent, there is a secondary problem when it comes to tracking the extent to which bodies both public and private receive public money: how do we find how much public money in total a particular private company has received?
On the one hand, we can easily generate reports that show the total amount of public money spent by public body A with private company C by looking at their spending data. (This may be complicated that different companies within a larger group (eg separate recipients C Services Ltd and C Operations Ltd may both be part of C Ltd) all receive separate payments from the body, but as we get more information about beneficial corporate interests we can start to piece together that piece of the jigsaw.)
On the other, to see all public money receipts by a particular company, we need to collate spend data from every public body and then aggregate all the spend with a particular company to get an idea of how much public money it has received, and in what spending areas, from the public sector. (For an early example of this, see Sketching Substantial Council Spending Flows to Serco Using OpenlyLocal Aggregated Spending Data.)
The solution? How about we require private corporate recipients to disclose all public money they have received as part of the deal associated with receiving that public money (a deal that public bodies have to accede to). Again, we may wish to put a threshold on this, even one that has some sort of symmetry associated with it compared to the spending requirements: say, disclosure of £500+ receipts from local government and £25k+ receipts from government departments and other associated bodies.
PS I note a recent Open Letter to the PM from UK civil society organisations that makes a related request:
2. ENABLE PUBLIC SCRUTINY OF ALL ORGANISATIONS IN RECEIPT OF PUBLIC MONEY,
by opening up public sector contracts and extending transparency standards and legislation. Endorse and implement a system of ‘Open Contracting’, ensuring public disclosure and monitoring of contracting from procurement to the close of projects, and amend the Freedom of Information Act so that all information held by a contractor in connection with a public service contract is brought within its scope.
Ah, yes… Information asymmetry around FOI requests. Do you know of any companies who operate parking meters on behalf of a local council? I’d like to see if I could get this sort of data from them…
PPS see also the House of Commons Public Administration Committee, who took evidence on Statistics and open data on October 8th, 2013.
I note a pre-announced intention from the Justice Data Lab that they will publish “[t]ailored reports pertaining to the re-offending outcomes of services or interventions delivered by organisations who have requested information through the Justice Data Lab. Each report will be an Official Statistic.
If you haven’t been keeping up, the Justice data lab is a currently free, one year pilot scheme (started April 2013) in which “a small team from Analytical Services within the Ministry of Justice (the Justice Data Lab team) will support organisations that provide offender services by allowing them easy access to aggregate re-offending data specific to the group of people they have worked with” [User Journey].
Here’s how the user journey doc describes the process…
…and the methodology:
which is also described in the pre-announcement doc as follows:
Participating organisations supply the Justice Data Lab with details of the offenders who they have worked with, and information about the services they have provided. As standard the Justice Data Lab will supply aggregate one year proven re-offending rates for that group, and that of a matched control group of similar offenders. The re-offending rates for the organisation’s group and the matched control group will be compared using statistical testing to assess the impact of the organisation’s work on reducing re-offending. The results will then be returned to the organisation in a clear and easy to understand format, with explanations of the key metrics, and any caveats and limitations necessary for interpretation of the results.
The pre-announcement suggests that participating organisations will not only receive a copy of the report, but so will the public… The rationale:
The Justice Data Lab pilot is free at the point of service, paid for through the Ministry of Justice budget. The Ministry of Justice therefore has a duty to act transparently and openly about the outcomes of this initiative. It is anticipated that by making this information available in the public domain, organisations that work with offenders will have a greater evidence base about what works to rehabilitate offenders, and ultimately cut crime.
(Nice to see the MoJ believes in transparency. Shame that doesn’t go as far as timely spending data transparency, but I guess we can’t have it all…)
I think it’s worth taking notice of this pre-announcement for few reasons:
- are such data release mechanisms the result of lobbying pressure? Other government departments have datalabs, such as the HMRC datalab. HMRC recently ran a consultation on the release of VAT registration information as opendata, although concerns have been raised that this may just be a shortcut way of releasing company VAT registration data to credit rating agencies and their ilk…?, so it seems as if they are looking at what data they may be able to open up, and how, maybe in response to lobbying requests from corporate players who don’t want to have to (pay to) collect the data themselves…? Who might have lobbied the MoJ for the results of MoJ datalab requests to be opened up as public data, I wonder?
- are the results gameable, or might they be used as a tool to “attack” a group that is the basis of a research request? For example, can third parties request that the MoJ datalab runs an analysis on the effectiveness of a programme carried out by another party, such as, I dunno, G4S?
- the ESRC is in the process of a multi-stage funding round that will establish a range of research data centres. The first round, to establish a series of Administrative Data Research Centres has now closed (who won?!) and the second – for Business and Local Government Data Research Centres – is currently open. (Phase three will focus on “Third Sector data and social media data”…wtf?!) To what extent might any of the funded research data centres require that summaries of analyses run using datasets they control access to are released as public open data?
Just by the by, I note here the RCUK Common Principles on Data Policy:
Publicly funded research data are a public good, produced in the public interest, which should be made openly available with as few restrictions as possible in a timely and responsible manner that does not harm intellectual property.
Institutional and project specific data management policies and plans should be in accordance with relevant standards and community best practice. Data with acknowledged long-term value should be preserved and remain accessible and usable for future research.
To enable research data to be discoverable and effectively re-used by others, sufficient metadata should be recorded and made openly available to enable other researchers to understand the research and re-use potential of the data. Published results should always include information on how to access the supporting data.
RCUK recognises that there are legal, ethical and commercial constraints on release of research data. To ensure that the research process is not damaged by inappropriate release of data, research organisation policies and practices should ensure that these are considered at all stages in the research process.
To ensure that research teams get appropriate recognition for the effort involved in collecting and analysing data, those who undertake Research Council funded work may be entitled to a limited period of privileged use of the data they have collected to enable them to publish the results of their research. The length of this period varies by research discipline and, where appropriate, is discussed further in the published policies of individual Research Councils.
In order to recognise the intellectual contributions of researchers who generate, preserve and share key research datasets, all users of research data should acknowledge the sources of their data and abide by the terms and conditions under which they are accessed.
It is appropriate to use public funds to support the management and sharing of publicly-funded research data. To maximise the research benefit which can be gained from limited budgets, the mechanisms for these activities should be both efficient and cost-effective in the use of public funds.
A few more bits and pieces around the possible distribution and application of open public data (that is, openly licensed data released by public bodies):
- Bills before Parliament – Education (Information Sharing) Bill 2013-14: although this is a private member’s bill, explanatory notes have been prepared by prepared by the Department for Education. The bill allows for “student information of a prescribed description” to be made available to a “prescribed person” or “a person falling within a prescribed category”. If the bill goes through, keeping tabs on these prescriptions will be key to seeing how this might play out.
As mentioned in my Rambling Round-Up of Some Recent #OpenData Notices from August, the HMRC is consulting on opening up access to VAT records. And through the post this week, I received a letter from the NHS regarding the sharing of data within the NHS via Summary Care Records, although this appears to be more to do with data sharing within the NHS on a case-by-case basis, rather than sharing of bulk datasets for analysis/research and/or business development. So outbreaks of planned sharing are appearing all over the place. I’m not sure what the best way of tracking such initiatives is though?
I haven’t really been tracking private members’ bills either (except the Supermarket Pricing Information Bill 2012-13 that never went anywhere!), and I’m not really sure what they signal, but some of them do make me a bit twitchy. Like the currently proposed Collection of Nationality Data Bill that will “require the collection and publication of information relating to the nationality of those in receipt of benefits and of those to whom national insurance numbers are issued.” Or the Face Coverings (Prohibition) Bill 2013-14, whereby “a person wearing a garment or other object intended by the wearer as its primary purpose to obscure the face in a public place shall be guilty of an offence.” As discussions regarding privacy and anonymity on the web ebb and flow, it’s interesting to see how they’re tracked “IRL”. If a space is public, do you have any right to privacy or anonymity?
- ESRC Pre-call: Business and Local Government Data Research Centres – Big Data Network Phase 2:
The ESRCs Big Data Network will support the development of a network of innovative investments which will strengthen the UKs competitive advantage in Big Data. The core aim of this network is to facilitate access to different types of data and thereby stimulate innovative research and develop new methods to undertake that research. This network has been divided into three phases.
- Phase 1 of the Big Data Network the ESRC has invested in the development of the Administrative Data Research Network (ADRN) which will provide access to de-identified administrative data collected by government departments for research use
- Phase 2, which is the focus of this pre-announcement, will focus primarily on business data and local government data
- Phase 3, further details of which will be released in the Autumn, will focus primarily on third sector data and social media data
- Progress continues on the smart meter roll out program, with huge chunks of money being lined up for a few lucky companies (Government Selects Favourites For The Smart Meter Roll-Out). See also the Energy and Climate Change Select Committee inquiry – “Smart meter roll-out” and their Smart meter roll out report. Whilst the drivers are presumably supposedly related more efficient energy management, there are plenty of surveillance opportunities arising! Whilst not public data, as such, the availability (and sharing with data aggregators) of smart meter data does form part of the government’s #midata programme (around which the current strategy appears to be “the less said the better”…)
- Maybe of interest to hardcore openspending data geeks, Local Audit and Accountability Bill 2013-14 has made its way from the Lords into the Commons. Schedule 9 introduces regulations around data matching, described as “an exercise involving the comparison of sets of data to determine how far they match (including the identification of any patterns and trends)”, although “data matching exercise[s] may not be used to identify patterns and trends in an individual’s characteristics or behaviour which suggest nothing more than the individual’s potential to commit fraud in the future”. A code of practice is also required. The power “is exercisable for the purpose of assisting in the prevention and detection of fraud” although the schedule may be amended in order to assist: “a) in the prevention and detection of crime (other than fraud), (b) in the apprehension and prosecution of offenders, and (c) in the recovery of debt owing to public bodies”.
Schedule 11 covers the Disclosure of Information. Where an auditor obtains information from a public body “[a] local auditor, or a person acting on the auditor’s behalf, may also disclose information to which this Schedule applies except where the disclosure would, or would be likely to, prejudice the effective performance of a function imposed or conferred on the auditor by or under an enactment”. I’m not sure to what extent such information might be requestable from the local auditor though?
I have to admit, I’m losing track of all these data and information related laws. And I guess I should also admit that I don’t really understand what any of them actually mean, either…!;-)
When faced with a car parking charge of £1.90 and a “no change” ticket machine, how much do we actually end up paying?
A recent report on English Local Authority Parking Finances by the RAC Foundation reviews the surpluses made by local councils when comparing the revenue they generate from local parking and traffic enforcement notice charges and the costs associated with providing those services. Across all the English councils, it seems to amount to £412 million for the most recently reported on period, the financial year 2011-2012. From the reported figures, income of £1,371 million is generated with costs of £806 million and a surplus of £565 million, a gross margin of 41.2%.
Presumably in an attempt to make a better story for unwary journalists making back of the envelope percentage calculations, the report describes how councils “collect around £1.4 billion [rounding up from £1,371 million] from parking tickets, permits and penalties, spend around £0.8 billion [rounding down, slightly, from £806 million] and make a surplus of £0.6 billion [rounding up from £565 million]“. The gross margin calculation using these numbers is 0.6/1.4 * 100% = 42.86%, which we might typically round up to 43%, compared to the proper rounding of the original amount, which would be 41%.
41% is still a great rate of return, of course! But is it fair? In written evidence to the current House of Commons Transport Select Committee on local authority parking enforcement, the RAC Foundation noted that “There is evidence that official guidance to TMA 2004 [Operational Guidance to Local Authorities: Parking Policy and Enforcement] on parking charges is not strictly adhered to, and that councils set parking charges with the likelihood of them realising a surplus. It should be clear to all local authorities that they have no legal powers to set parking charges at a higher level than that needed to achieve the objective of relieving or preventing congestion of traffic.”
Referring to the guidance itself, we see that setting the price of parking is something of a dark art that can use consumer psychology to influence behaviour in support of a particular transport policy.
4.8 When setting charges, authorities should consider the following factors:
- parking charges can help to curb unnecessary car use where there is adequate public transport or walking or cycling are realistic alternatives, for example, in town centres;
- charges can reflect the value of kerb-space, encouraging all but short-term parking to take place in nearby off-street car parks where available. This implies a hierarchy of charges within a local authority area, so that charges at a prime parking space in a busy town centre would normally be higher than those either at nearby off-street car parks or at designated places in more distant residential areas. Such hierarchies should be as simple as practicable and applied consistently so that charge levels are readily understandable and acceptable to both regular and occasional users;
- charges should be set at levels that encourage compliance with parking restrictions. If charges are set too high they could encourage drivers to risk non-compliance or to park in unsuitable areas, possibly in contravention of parking restrictions. In certain cases they could encourage motorists to park in a neighbouring local authority area which may not have the capacity to handle
the extra vehicles. In commercial districts this may have a negative impact on business in the area; and
- if on-street charges are set too low, they could attract higher levels of traffic than are desirable. They could discourage the use of off-street car parks and cause the demand for parking spaces to exceed supply, so that drivers have to spend longer finding a vacant space.
Balancing these policy objectives against claims that the level of surplus being generated is unfair is something that each council needs to justify to its own constituents. When making such a justification, it would seem likely that representation could be made on several different levels – by considering overall revenues, costs and surpluses; by looking at the occupancy volumes or rates for different car parking spaces; or at the level of actual car parking tariffs (that is, how much it costs to park for an hour in a particular location).
Most of us feel the pain at the everyday level, of course, when it actually comes to actually finding and paying for car parking. But are we paying more than we need to, nudged into contributing to additional surpluses over and above what a quick calculation based on parking volumes and tariffs (that is, charges for parking) might suggest is the “planned” surplus? I thought I’d put my data sleuth hat on to try and find out how much extra money could be made by not providing change…
Take my local council, for example, on the Isle of Wight. The main civic car park in the charming harbour town of Yarmouth has a range of ticket prices, including a £1.90 rate for stays between one and two hours, and a £3.40 rate for durations between two and four hours. The two ticket machines are both cash based and don’t offer change. Many retailers know that pricing goods at £something.99 helps encourage sales, although how psychological pricing tricks like this actually work is still open to debate. (For more on the psychology of pricing, see the OFT commissioned report on Pricing Practices: Their Effects on Consumer Behaviour and Welfare.) In a “no change” payment setting, might we use related psychological tricks in association with the value of our coinage (1p, 2p, 5p, 10p, 20p, 50p, £1) to apparently set one price, which we must defend, whilst on average expecting the payment of a larger amount? That is, might we choose a £1.90 price point in the expectation that we might actually make £2 on many of the transactions?
Using data acquired via a Freedom of Information request, I asked the Isle of Wight council for the number of tickets issued within each price band for the Yarmouth town car park during 2012/13, along with the revenue generated by each of the two ticket machines. Using this information, we can calculate how much additional revenue is generated for each price band based on overpayments:
In the grander scheme of things, this doesn’t amount to a huge sum of money (the total overpayments come to £2272.15, or 1.7% of the total revenue), though it must be remembered that this refers to just a single car park in a single local council area.
If we look at the raw data that details the actual payment made for each ticket issued by the ticket machines at the £1.90 tariff level, we can see how many people actually overpay:
Actual Payment (£) Count 1.9 10237 1.95 19 2 7734 2.05 6 2.1 16 2.15 1 2.2 16 2.3 7 2.35 1 2.4 22 2.5 39 2.55 1 2.6 7 2.7 7 2.75 1 2.8 2 2.9 11 2.95 1 3 134 3.05 2 3.1 3 3.2 18 3.3 10 3.35 3
Of the 18,298 tickets issued at the £1.90 level for the Yarmouth town car park during financial year 2012/13, it would appear that over 40% of the tickets issued generated £2 in revenue, presumably because drivers didn’t have the exact change to hand.
Whilst it would be easy enough to exclaim “We can only guess at how much money extra money English councils raise in this way”, that’s not strictly true. We could find out exactly by making FOI requests to them all…
Investigations such as this often raise more questions than they answer. For example: what parking tariff bands does your local council use? How much overpayment are you “happy” to make for your car parking ticket? If there were increases in charges from an amount such as £1.40 to £1.60, what might that have done for actual revenues raised within that price band? If you start exploring this topic in your local area, please let me know via the comments:-)
PS see also this Telegraph article on Academic finds link between parking tickets and wardens’ overtime.
With my growing unease about just what the agenda driving open government/public data is, I think I’m going to have to find some time away to walk the dog lots, and mull over what pieces might be part of the jigsaw, as well as having a go at trying to put some of them together…
Near the top of the list is a concern about information asymmetry and how open data may be used by private concerns to provide a one-off advantage for them when it comes to poaching services from the public sector. How so? My gut reaction thinking is this: if, as part of the procurement process, the private sector can use open public data to help it secure a contract in competition with a public sector provider, then when contracts come to renewal the public sector may know less when it comes to bid than the private sector company was able to learn when it first tendered. The question here is: does open public data put private sector companies in an advantage when it comes to bidding for public service contracts against an encumbent public provider compared to a public body bidding to recapture a service from an encumbent private provider, given that the private provider may not be required to open up information (for example, through FOI requests, transparency or public reporting obligations) in the same way that a public body is.
Another take on a similar theme is the extent to which there may be a loss of transparency when a service goes from a public to a private provider. If we think there is some benefit to be had from transparency in general terms, then private providers of public services should have the same openness requirements placed on them as the public body. If private companies can claim revealing information is against their commercial interest, can public bodies make the same claims on exactly the same terms under FOI exemption rules, for example (eg MoJ Freedom of information guidance: Exemptions guidance – Section 43: Commercial interests).
Taking the NHS as a case example, here are a few things on my reading list:
- Monitor report from March 2013 on A fair playing field for the benefit of NHS patients [actual report]. For example, the report identified the following distortions:
1. Participation distortions. Some providers are directly or indirectly excluded from offering their services to NHS patients for reasons other than quality or efficiency. Restrictions on participation disadvantage providers seeking to expand into new services or new areas, regardless of whether the providers are public, charitable or private. Participation distortions disadvantage nonincumbent providers of every type.
2. Cost distortions. Some types of provider face externally imposed costs that do not fall on other providers. On balance, cost distortions mostly disadvantage charitable and private health care providers compared to public providers.
3. Flexibility distortions. Some providers’ ability to adapt their services to the changing needs of patients and commissioners is constrained by factors outside their control. These flexibility distortions mostly disadvantage public sector providers compared to other types.
I’m not sure to what extent, if any, the report reviews distortions and asymmetries arising from open data issues.
A search of the report for mentions of FOI turns up:
Historically, public providers have faced higher levels of scrutiny than other providers, including requests for information under the Freedom of Information Act. This degree of scrutiny can improve accountability to patients and promote good practice. Freedom of Information requirements have been extended through the standard NHS contract to private and charitable providers. However, it is not clear that this is operating effectively as yet, and other aspects of transparency do not apply across all types of provider.
29. The Government and commissioners should ensure that transparency, including Freedom of Information requirements, is implemented across all types of provider of NHS services on a consistent basis.
As I said, it’s on the reading list…
- A terrifying post on the Computer Weekly/Public Sector IT blog – NHS watchdog commandeers data in bid to stimulate privatization and an earlier one on the naive take on hospital mortality data: Data regime makes merciless start on NHS privatization. Are there any reports or strategy documents from the Care Quality Commission (CQC) I need to add to my reading list?
- Something academic… such as this piece from the Proceedings of the 21st European Conference on Information Systems on The Generative Mechanisms of Open Government Data, much of which I suspect is summarised by these two figures taken (without permission) from the the paper:
- Opening up data (particularly data held by public bodies) around private companies is another area I can quite get my head round, particularly when it comes to comparing information about the machinations of private companies as compared to public bodies. To what extent should companies that are public and limited liability have data that is held by them by public bodies be openly available, for example? Maybe related to this is a currently open BIS consultation: Company ownership: transparency and trust discussion paper as well as the HMRC consultationon Sharing and publishing data for public benefit (press release) that I linked to from yesterday’s Rambling Round-Up of Some Recent #OpenData Notices. (OpenCorporate’s Chris Taggart posts some interesting thoughts on the sheen given to the proposed release of VAT registration data to credit agencies that the consultation is in part based around: Open tax data, or just VAT ‘open wash’.) A recent edition of File on 4 (h/t @onthewight) on charity based tax fraud – Faith, Hope and… Tax Avoidance – also got me wondering further about what information is openly available about charities’ activities (eg A Quick Peek at Some Charities Data…)?
- One to dig for… via Lexology, a post on Freedom of information in the private sector? which claims that “The Confederation of British Industry (“CBI“) has revealed that it is developing ‘transparency guidelines’ that will apply to private companies that provide services to the NHS.” Have these appeared yet, even in draft or consultation form?
A few other things on my to-do list in this area: map out the lobbiests and board/panel members around open data; use disclosure logs to search for companies putting in FOI requests in different sectors; see who’s pitching ideas in to ODUG; map out who’s funding NGOs and activities in the opendata space.
Sigh… no time…;-)
PS Not sure if there is a full paper version of this…? Bates, J. 2013, Information policy in the crises of neoliberalism: the case of Open Government Data in the UK at International Association of Media and Communications Researchers Conference, Dublin, June 2013: “Whilst open data releases by the UK government have received substantial support within UK civil society, often being interpreted as a creative and innovative response to a range of social issues, and, for some, a radical challenge to key components of neoliberal capitalism, this paper argues that deeper analysis of the OGD initiative suggests that it is being shaped by the UK government and corporate interests in an attempt to leverage a distinctly neoliberal agenda. The adoption and development of the OGD agenda as core to the policy response adopted by the UK Government to conditions of political economic crisis, suggests that information policy is being implemented as a key, yet often opaque, element of the neoliberal policy toolbox.” See also an earlier paper, “This is what modern deregulation looks like”: Co-optation and contestation in the shaping of the UK’s Open Government Data Initiative (“whilst OGD [Open Government Data] might potentially support modes of transparent and democratic governance, the current ‘transparency agenda’ should be recognised as an initiative that also aims to enable the marketisation of public services, and this is something that is not readily apparent to the general observer.”) and a statement of Jo Bates current research project in the are: The politics of Open Government Data in the UK
It’s been some time since I (b)logged recent reports and announcements relating to the ongoing evolution of the open data thang in the UK, so here’s a quick round-up of some of the things I have floating in my open tabs…
- Secretary of State’s Code of Practice (datasets) on the discharge of public authorities’ functions under Part 1 of the Freedom of Information Act – I guess this is the big one, the latest code of practice relating to the release of datasets under FOI. (Owen Boswarva has also compared it to the consulted upon draft.) The ICO give a quick overview as well as a specialist guidance on Datasets (FOI sections 11, 19 & 45). A sceptic might say it looks like FOIable bodies have also been given the wherewithal to set up their own data trading funds, enabled by The Freedom of Information (Release of Datasets for Re-use) (Fees) Regulations 2013. In passing, this looks like a handy place to catch up on FOI round-ups.
- Via Out-Law, HMRC consults on plans to release anonymised tax datasets, I notice that HMRC has a new consultation out: Sharing and publishing data for public benefit. Apparently, [t]his consultation brings forward three options:
- wider sharing of aggregated and anonymised tax data, for example, for the purposes of research or policy development;
- release of basic non-financial VAT registration data as public data; and
- sharing more detailed VAT registration data on a more restricted and controlled basis for specific purposes, such as credit referencing.
At first glance, section 2.4 read to me like the hatchets are out on the NHS and the marshalling of resources to drive its privatisation continues ever onwards. From the consultation, I noticed that a Tax Sector Transparency Board was set up at the end of last year, which brings the number of sector transparency/data boards to about 437, I think? (Try searching for site:gov.uk inurl:sector-transparency-board.)
In passing, I also note this response to an FOI request from 2010 in relation to accessing company VAT number data:
I believe that disclosure of a complete list of VAT numbers currently in use would be likely to prejudice the prevention or detection of crime and the assessment or collection of VAT. I have reached this conclusion as I believe that the requested information could be used by opportunistic individuals and fraudsters to hijack genuine VAT numbers in order to fraudulently present themselves to HMRC, to other traders or to prospective customers as VAT registered. VAT is charged when a VAT-registered business sells to either another business or to a non-business customer. When VAT-registered businesses buy goods or services they can generally reclaim the VAT they have paid. If fraudsters are able to charge or reclaim VAT when they are not entitled to do so, then this will result in loss to the Public Purse and to members of the public who fall victim to such fraud.
Section 31 is a qualified exemption which means that, if it applies, I must consider whether it is the public interest to override the exemption and release the information. I have very carefully considered this but have decided that on balance it is not in the public interest to release this information.
- The ICO is also in consulting mode, running a Consultation on the “Conducting privacy impact assessments” code of practice. The consultation isn’t posted on page with a sensible URL though, it’s linked via the “current consultations” page, so if you’re reading this a month or two after the time of writing, you’ll probably need to look in the closed consultations area of the site. Go figure…
- I had a little play with FOI myself recently. G4S was in the news again in a minor scandal about overcharging the Ministry of Justice on tagging contracts. I thought I’d have a peek at the MoJ spending data with respect to G4S, but they’ve been slipping in their transparency duties, so I felt obliged to FOI the spending data. No reply as yet – and I’m not sure if the data has gone up via their transparency pages yet, either?
- I’ve recently started picking up on the creation of research panels and government department data labs. For example, the HMRC datalab and the more recent Justice data lab, which looks like an interesting resource for charities and other agencies working in the justice sector who need to demonstrate impact… HEFCE are also trying to open up access, sort of, to student survey data by means of the National Student Survey research panel. I suspect that the NHS (and the DfE, eg via the National Pupil Database) have data access initiatives, as well as data linkage services? For example, the Linked Hospital Episode Statistics and Mental Health Minimum Data Set. In the academic health research area, see also the Expert Advisory Group on Data Access.
- A handful of recent reports on how open data is perceived and being used: from Sciencewise, a June 2013 report on Public views on open data; from the Department for Work and Pensions (DWP), a couple of brief reports on “how DWP uses transparency and open data to improve public services and accountability”. Alternatively, for a few thousand dollars, you can get a Forrester Research report on Getting The Most Out Of Open Data. One of the opendata “success” stories I heard championed most recently was by Sir Nigel Shadbolt at the Guardian Activate Summit. Apparently, the release of spending data has resulted in the “success” of private companies selling procurement advice based on an analysis of the data back to the public bodies, though I don’t think any specifics were mentioned. Are there any papers out there looking at how open data is being used to drive privatisation and destroy public services, I wonder?
- More research centre initiatives, from another report that I missed when it came out in December 2012 – The UK Administrative Data Research Network: Improving Access for Research and Policy. It would be interesting to see how the models proposed in this report compare to the structures used by the government datalabs?
And finally, an even older report I’d not picked up on before. From the Audit Commission in March 2010, a discussion paper: The Truth is Out There – Transparency in an Information Age. I keep meaning to do a history of UK open government data over the last few years, so checkpoints like this are interesting when it comes to logging the hopes and aspirations, as well as the claims that were being made in support of developing policy, from back in the day. Also on the to do list is post about how I’m increasing uncomfortable with the whole open data thing, and what motivations are actually driving it at the policy (and lobbiest) level…
How can stats and data publishers, from NGOs and (inter)national statistics agencies to scientific researchers, publish their data in a way that supports its analysis directly, as well as in combination with other datasets?
Here’s one approach I learned about from Michael Kao of the UN Food and Agriculture Organisation statistics division, FAOStat.
At first glimpse, the FAOStat website offers a rich website that supports data downloads, previews and simple analysis tools around a wide variety of international food related datasets:
One problem with having so many controls and fields available is that it can be hard to know where (or how) to get started – a bit like the problem of being presented with an empty SPARQL query box…
It would be quite handy to be able to set – and save with meaningful labels – preference sets about the countries you’re interested in so you don’t have to keep keep scrolling through long country lists looking for the countries you want to generate reports for? (Support for “standard” groupings of countries might also be useful?) Being able to share URLs to predefined reports might also be handy? But this would possibly make the site even more complex to use!
One easier way of working with FAOStat data, particularly if you access the FAO datasets regularly, might be to take a programmatic route using the FAOStat R package. Making datasets available in ways that bring that data directly into a desktop analysis environment where they can be worked on without requiring cleaning or other forms of tidying up (which is often the case when data is made available via Excel spreadsheets or CSV files) is a trend I hope we see more of. (That is not to say that data shouldn’t also be published in “generic” document formats…). If you are using a reproducible research strategy, queries to original datasources provide implicit, self-describing metadata about the data source and the query used to return a particular dataset, metadata that is all to easy to lose, or otherwise detach from a dataset when working with downloaded files.
I haven’t had chance to play with this package yet – it’s still in testing anyway, I think? – but it looks quite handy at a first glance (I need to do a proper review…). As well as providing a way of running data grab queries over theFAO FAOSTAT and World Bank WDI APIs, it seems to provide support for “linkage”. As the draft vignette suggests, “Merge is a typical data manipulation step in daily work yet a non-trivial exercise especially when working with different data sources. The built in mergeSYB function enables one to merge data from different sources as long as the country coding system is identiﬁed. … Data from any source with [a] classiﬁcation [supported by the package] can be supplied to mergeSYB in order to obtain a single merged data. (sic)“. Supported formats currently include: United Nations M49 country standard [UN_CODE]; FAO country code scheme [FAOST_CODE]; FAO Global Administrative Unit Layers (GAUL) [ADM0_CODE]; ISO 3166-1 alpha-2 [ISO2_CODE]; ISO 3166-1 alpha-2 (World Bank) [ISO2_WB_CODE]; ISO 3166-1 alpha-3 [ISO3_CODE]; ISO 3166-1 alpha-3 (World Bank) [ISO3_WB_CODE].
By releasing an “official” R package to access the FAOStat API, it occurs to me that this makes it much easier to start building sector specific Shiny applications around particular datasets? I wonder whether the FAOstat folk have considered whether there is a possibility of developing a small Shiny app or custom client ecosystem around their data, even if it just takes the form of a curated set of gists that can be downloaded directly into RStudio, for example, using runGist?
I don’t know whether the Eurostat EC Statistics database has an associated R package too? (If so, it could be quite interesting trying to tie them together?! I do note, however, that Eurostat data is available for download (though I haven’t read the terms/license conditions…).
I also note that a Linked Data/SPARQL way in to Eurostat data appears to be available? Eurostat Linked Data.
[Man flu, hence the brevity of the post... skulks back off to sick bed...]
PS BY the by, I notice that the NHS are experimenting with making some data releases available via Google Public Data Explorer [scroll down...]
PPS See also this package – Smarter Poland – which provides an API to the Eurostat database.
On June 28th, 2012, the open data policy white paper Unleashing the Potential was published by the Cabinet Office. In the section on “Opening Up Access to Research”, one particular paragraph runs as follows:
2.66 To further develop government policy on access to research, we are also establishing a Research Transparency Sector Board, chaired by the Minister for Universities and Science, which will consider ways in which transparency in the area of research can be a driver for innovation. Recognising that research data is different to other PSI [Public Sector Information, presumably? - ed.], the Board will consider how to implement transparency measures relating to research in a manner which protects the integrity of the research and associated intellectual property, while ensuring access to research for those SME entrepreneurs vital for driving growth. This will help to realise the full benefits for society as a whole. The Research Transparency Sector Board will consist of government departments, funding agencies and representatives from universities and other stakeholders, and among the first of its tasks will be to consider how to act on the recommendations of the Royal Society report.
The announcement of the board (referred to as the Research Sector Transparency Board – which makes more sense…) was welcomed by the Royal Society in a guest blog post on the data.gov.uk website dated 27th June 2012 (the day before the embargo lifted? I’m not sure when the blog post actually became public): An intelligently open enterprise.
The minutes of a Regular meeting of the ICO Higher Education sector panel on FOI and DP (24.09.2012) dated 16/10/12 notes the following:
Research data caused much concern. VA reminded delegates that she does need input from Research Councils and BIS in this area, as stated in the draft DD [HE definition document]. Definitions of “publicly funded” and “key outputs” may need clarification. It was noted that the Engineering and Physical Sciences Research Panel had to produce this type of data to an agreed timetable by 2015. It was also mentioned that the Open Data White Paper announced the formation of a new Research Sector Transparency Board and it was suggested that HEI research data could be linked to that format – it is not yet ready for use but might be worth noting in the new DD that this is a future aim.
Correspondence from House of Lords European Union Select Committee includes a letter from David Willetts MP dated 25 October 2012 that refers to his anticipated chairing of the Board:
On the question of Open Access (OA), I was pleased to note your expressed support for Open Data (OD) for which the UK is again identified as a good example. We have made excellent progress through the Finch Report on expanded access to research publications and the Government’s response to it. OD is at a relatively early stage. Some initiatives are already in train under Government’s Transparency Agenda, as detailed in the Cabinet Office White Paper, Open Data: Unleashing the Potential. This includes establishment of the Research Sector Transparency Board, which I shall be chairing. The Board will want to examine the complex issues around increasing the sharing of research data. The Research Councils’ published Open Access policy makes appropriate reference to research data, and the recent Royal Society report has informed the discussion, but work is needed on deciding further measures and implementing these appropriately, with the right terms and conditions and timing for disclosure.
We cannot be complacent and we will want to consider how best to monitor the take-up of Gold OA both here in the UK and overseas. The HEFCE-funded Joint Infrastructure Systems Committee (JISC), OAIG, and the Research Innovation Network (RIN) are already active in monitoring OA trends generally. HEFCE also envisages a possible role for JISC in monitoring the effectiveness – and effects – of Government OA policy. I expect that the Research Sector Transparency Board will also take an interest in OA policy implementation.
The 2012 BIS Annual Innovation Report from November 2012 referred to the announcement of the Board, making me wonder how many other Annual Reports celebrate the announcement of vapour
10.3 Open data and transparency
We have continued to work to harness the potential and collaborative opportunities offered by wider use of open data.
In June 2012 the Government announced in its Open Data White Paper that we would set up a Research Sector Transparency Board. The Board will consider how transparency in research can be a driver for innovation and discovery while furthering the UK’s recognised excellence in science. It will advise Government transparency issues relating to the national research effort, and improved access for small and medium businesses to the research base. Amongst its first tasks will be to consider and address the recommendations of the Royal Society report, Science as an Open Enterprise, into the sharing and disclosing of research data.
We also established the Administrative Data Taskforce, in December 2011. It will publish proposals for new mechanisms and collaborative agreements to enable and promote the wider use of administrative data for research and policy purposes, before the end of the year.
(I’m not sure I’d picked up on the Administrative Data Taskforce before? It reported in December 2012: The UK Administrative Data Research Network: Improving Access for Research and Policy. This report looks like it could be worth reading – a quick skim reveals several sections on legal and ethical issues related to linking administrative data to other dataset.)
A Hansard reported Written Answer to the House of Lords from 12 Dec 2012 (Column WA241) from The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Marland) on questions referring to open access to research data records:
Any further opening up of access to data, in the context of the wider open data agenda, would be the subject of future discussions with the research councils and other parties including the Data Strategy Board and representative university bodies. These policy issues would also be considered as appropriate by the Research Sector Transparency Board which is chaired by David Willetts. There are no proposals to change the research councils’ policy on access to data at this time.
The Russell Group response to the House of Lords Science and Technology Committee’s inquiry on open access publishing, dated 24 January 2013, makes the following reference to the board:
1.3 The Russell Group has been monitoring the development of open access (OA) policy for some time. We followed the ‘Finch Review’ and Royal Society work on science as an open enterprise with interest and the Russell Group is now represented on the Research Sector Transparency Board which will be covering OA, open data and other issues over the coming year. We have recently had a number of meetings with Research Councils UK (RCUK) to discuss implementation of OA policy.
This suggests that membership of the board has been decided upon, at least partially?
A HEFCE letter on Open access and submissions to the REF post-2014 dated 25/2/13 refers to the board in the following terms:
25. With the Research Councils and the Research Transparency Sector Board, we are giving consideration to the issues involved in increasing access to research data. We are committed to working in dialogue with the sector to develop fair and balanced mechanisms to achieve this aim.
Again, this suggests that the Board has been convened.
So I wonder:
- What is tha actual name of the board – Research Transparency Sector Board or Research Sector Transparency Board ;-)? (Other sectors have Transparency Boards….)
- What is the membership of the board and has it convened yet?
- What are the terms of reference for the board?
- If it has convened, where are the minutes?
By the by, I note the emergence of the Research Councils UK – Gateway to Research, which provides a single point of access to “[k]ey data from the seven UK Research Councils in one location.”
This site appears to collate information about research grants, grantees, and publications by grant, across the Research Councils (I’m not sure if an #opendata dump is available though, which would mean I don’t need to scrape across all the sites using Scraperwiki any more?!;-)
PS it seems a tweet about the first meeting appeared whilst I was writing this post:
First meeting of the Research Sector Transparency Board today and all agree that open data are a public good – but that issue is complicated
— adam tickell (@adamtickell) February 26, 2013
No linkage that I can see yet, though?
A couple of weeks ago, I gave a presentation to the WebScience students at the University of Southampton on the topic of open data, using it as an opportunity to rehearse a view of open data based on the premise that it starts out closed. In much the same way that Darwin’s Theory of Evolution by Natural Selection is based on a major presupposition, specifically a theory of inheritance and the existence of processes that support reproduction with minor variation, so too does much of our thinking about open data derive from the presupposed fact that many of the freedoms we associate with the use of open data in legal terms arise from license conditions that the “owner” of the data awards to us.
Viewing data in this light, we might start by considering what constitutes “closed” data and how it comes to be so, before identifying the means by which freedoms are granted and the data is opened up. (Sometimes it can also be easier to consider what you can’t do than what you can, especially when answers to questions such as “so what can you actually do with open data?” attract the (rather meaningless) response: “anything”. We can then contrast what you can do in terms of freedom complementary to what you can’t…)
So how can data be “closed”?
One lens I particularly like for considering constraints that are placed on actions and actors, particularly in the digital world (although we can apply the model elsewhere) I first saw described by Lawrence Lessig in Code and Other Laws of Cyberspace: What Things Regulate: A Dot’s Life.
Here’s the dot and the forces that constrain its behaviour:
So we see, for example, the force of law, social norms, the market (that is, economic forces) and architecture, that is the “digital physical” way the world is implemented. (Architecture may of course be designed in order to enforce particular laws, but it is likely that other “natural laws” will arise as a result of any particular architecture or system implementation.)
Without too much thought, we might identify some constraints around data and its use under each of these separate lenses. For example:
- Law: copyright and database right grant the creator of a dataset certain protective rights over that data; data protection laws (and other “privacy laws”) limit access to, or disclosure of, data that contains personal information, as well as restricting the use of that data for purposes disclosed at the time it was collected. The UK Data Protection Act also underwrites the right of individuals to claim additional limits on data use, for example the rights “to object to processing that is likely to cause or is causing damage or distress to prevent processing for direct marketing; to object to decisions being taken by automated means” (ICO Guide to the DPA, Principle 6 – The rights of individuals).
- Norms: social mores, behaviour and taboos limit the ways in which we might use data, even if that use is not constrained by legal, economic or technical concerns. For example, applications that invite people to “burgle my house” based on analysing social network data to discover when they are likely to be away from home and what sorts of valuable product might be on the premises are generally not welcomed. Norms of behaviour and everyday workpractice also mean that much data is not published when theere are no real reasons why it couldn’t be.
- Market: in the simplest case, charging for access to data places a constraint on who can gain access to the data even in advance of trying to make use of it. If we extend “market” to cover other financial constraints, there may be a cost associated with preparing data so that it can be openly released.
- Architecture: technical constraints can restrict what you can do with data. Digital rights management (DRM) uses encryption to render data streams unusable to all but the intended client, but more prosaically, document formats such as PDF or the “release” of data charts are flat image files makes it difficult for the end user to manipulate as data any data resources contained in those documents.
Laws can also be used to grant freedoms where freedoms are otherwise restricted. For example:
- the Freedom of Information Act (FOI) provides a mechanism for requesting copies of datasets from public bodies; in addition, the Environmental Information Regulations “provide public access to environmental information held by public authorities”.
- the laws around copyright relax certain copyright constraints for the purposes of criticism and review, reporting, research, teaching (IPO – Permitted uses of copyright works);
- in the UK, the Data Protection Act provides for “a right of access to a copy of the information comprised in their personal data” (ICO Guide to the DPA, Principle 6).
- in the UK, the Data Protection Act regulates what can be done legitimately with “personal” data. However, other pieces of legislation relax confidentiality requirements when it comes to sharing data for research purposes. For example:
- the NHS Act s. 251 Control of patient information; for example, the Secretary of State for Health may “make regulations to set aside the common law duty of confidentiality for medical purposes where it is not possible to use anonymised information and where seeking individual consent is not practicable” (discussion). Note that they are changes afoot regarding s. 251…
- The Secretary of State for Education has specific powers to share pupil data from the National Pupil database (NPD) “with named bodies and third parties who require access to the data to undertake research into the educational achievements of pupils”. The NPD “tracks a pupil’s progress through schools and colleges in the state sector, using pupil census and exam information. Individual pupil level attainment data is also included (where available) for pupils in non-maintained and independent schools” (access arrangements).
- the Enterprise and Regulatory Reform Bill currently making its way through Parliament legislates around the Supply of Customer Data (the “#midata” clauses) which is intended to open up access to customer transaction data from suppliers of energy, financial services and mobile phones “(a) to a customer, at the customer’s request; (b) to a person who is authorised by a customer to receive the data, at the customer’s request or, if the regulations so provide, at the authorised person’s request.” Although proclaimed as a way of opening up individual rights to access this data, the effect will more likely see third parties enticing individuals to authorise the release to the third party of the individual first party’s personal transaction data held by a second party (for example, #Midata Is Intended to Benefit Whom, Exactly?). (So you’ll presumably legally be able to grant Facebook access to your mobile phone records… Or Facebook will find a way of getting you to release that data to them without you realising you granted them that permission;-)
Contracts (which I guess fall somewhere between norms and laws from the dot’s perspective (I need to read that section of Lessig’s book again!) can also be used by rights holders to grant freedoms over the data they hold the rights for. For example, the Creative Commons licensing framework provides a copyright holder with a set of tools for relaxing some of the rights afforded to them by copyright when they license the work accordingly.
Note that “I am not a lawyer”, so my understanding of all this is pretty hazy;-) I also wonder how the various pieces of legislation interact, and whether there are cracks and possible inconsistencies between them? If there are pieces of legislation around the regulation and use of data that I’m missing, please post links in the comments below, and I’ll try and do a more thorough round up in a follow on post.