Tom Steinberg, boss of My Society and former adviser to the Conservative party and last Labour government, has just published a number policy advice papers on his site. They represent five years of advice to ministers and the Conservatives when in opposition. I’m slowly ploughing through them but one of them jumps off the page at me. His valedictory paper recommends beefing up the powers of the ICO. I reproduce it here in full and would welcome your thoughts in the comments section below.
The key vulnerability of the present open government data agenda is the dearth of mechanisms to ensure that valuable data is published not simply at all, but published well enough, and on an ongoing basis.
Ministers have been successful in releasing a range of important datasets, but without continued watchfulness it is almost inevitable that a hard-pressed public services, unfamiliar with cheap automation techniques, will fail to sustain publication.
This is not just a theory – it is an everyday problem well known to most practioners and users of public data. For example, departments ceased publication of hospitality and meeting
data mere months after it was mandated by ministers in the last Government,and under this administration some departments have failed at timely release of further iterations of their £25k spending data, citing process problems.
This falling away of publication happens because releasing data does not sit within departmental priorities like ‘publishing unemployment figures’ or ‘delivering manifesto commitments’ – well known, high priority obligations. A mechanism is required to create such awareness within leaderships where and when it is needed. And it is not simply needed by the public – it is needed by ministers who want to see their wishes carried out on a sustained basis.
It is therefore proposed that the Information Commissioner is granted a new power to address this problem.
The new power would allow the ICO to add datasets to any public body’s Publication Scheme, on behalf of public or ministerial requests to do so.
More specifically, the power would enable the ICO to mandate publication not simply
of a named document, but of a particular dataset, specifying not only the data to be published, but the frequency of publication, the format of the data and even, in exceptional circumstances, the quality of the data.
This power would only be used by the ICO after a new form of public interest test was carried out by the ICO, to determine whether the cost and inconvenience of publishing this
data was outweighed by the value generated by regular public release.
To back up the ICO’s ability to mandate releases, the ICO would be given new powers to impose remedial measures on non-complying public bodies modelled on the Civic Monetary Penalties introduced for breaches of the Data Protection Act. These penalties would both create strong incentives for compliance, as well as bringing serious breaches of good practice in public data handling onto a level playing field with serious breaches of good practice in private data handling.
How this fits within the Right to Data Strategy
The Right to Data Strategy has been missing a clear central piece. The Mandated Data Release proposal is designed to form a hard center around which policies such as data inventories, culture change and the FOIA amendments currently in front of parliament could fit with extra clarity. It marks an escalation path which most public bodies would hope to avoid through close adherence to the voluntary parts of the strategy, and would boost uptake on the non-statutory policies currently in discussion.
This policy proposal is an outline of a tough vision, but the details have not been worked through in detail. The following are the questions which this idea most obviously raises:
- ? What is the process through which the ICO comes to decide that their new power should be used? How do the public and ministers ask for the ICO to deploy this new power on their behalf?
- ? How would the ICO’s statutory role, and resourcing have to change to cope with this new responsibility.
- ? What is the dividing line between FOI appeals and the new process for Mandated Data Release?
- ? What counts as a proportionate but not-excessive remedial action?
- ? How do public bodies cope if the Mandated Release imposes a cost upon them?
- ? Is there a right of appeal?
- ? Is there a cost limit to Mandated Releases?
- ? What are the principles on which Mandates are judged, and what is the judging
process to determine that the public interest is being insufficiently served?