Linking data and AI literacy at each stage of the data pipeline

[Summary: extended notes from an unConference session]

At the recent data literacy focussed Open Government Partnership unConference day (ably facilitated by my fellow Stroudie Dirk Slater)  I acted as host for a break-out discussion on ‘Artificial Intelligence and Data Literacy’, building on the ‘Algorithms and AI’ chapter I contributed to The State of Open Data book.

In that chapter, I offer the recommendation that machine learning should be addressed within wider open data literacy building.  However, it was only through the unConference discussions that we found a promising approach to take that recommendation forward: encouraging a critical look at how AI might be applied at each stage of the School of Data ‘Data Pipeline’.

The Data Pipeline, which features in the Data Literacy chapter of The State of Open Data, describes seven stages for woking with data, from defining the problem to be addressed, through to finding and getting hold of relevant data, verifying and cleaning it, and analysing data and presenting findings.

Figure 2: The School of Data’s data pipeline. Source: https://schoolofdata.org/methodology/
Figure: The School of Data’s data pipeline. Source: https://schoolofdata.org/methodology/

 

Often, AI is described as a tool for data analysis (any this was the mental framework many unConference session participants started with). Yet, in practice, AI tools might play a role at each stage of the data pipeline, and exploring these different applications of AI could support a more critical understanding of the affordances, and limitations, of AI.

The following rough worked example looks at how this could be applied in practice, using an imagined case study to illustrate the opportunities to build AI literacy along the data pipeline.

(Note: although I’ll use machine-learning and AI broadly interchangeably in this blog post, as I outline in the State of Open Data Chapter, AI is a  broader concept than machine-learning.)

Worked example

Imagine a human rights organisation, using a media-monitoring service to identify emerging trends that they should investigate. The monitoring service flags a spike in gender based violence, encouraging them to seek out more detailed data. Their research locates a mix of social media posts, crowdsourced data from a harassment mapping platform, and official statistics collected in different regions across the country. They bring this data together, and seek to check it’s accuracy, before producing an analysis and visually impactful report.

As we unpack this (fictional) example, we can consider how algorithms and machine-learning are, or could be, applied at each stage – and we can use that to consider the strengths and weaknesses of machine-learning approaches, building data and AI literacy.

  • Define – The patterns that first give rise to a hunch or topic to investigate may have been identified by an algorithmic model.  How does this fit with, or challenge, the perception of staff or community members? If there is a mis-match – is this because the model is able to spot a pattern than humans were not able to see (+1 for the AI)? Or could it be because the model is relying on input data that reflects certain bias (e.g. media may under-report certain stories, or certain stories may be over-reported because of certain cognitive biases amongst reporters)?

  • Find – Search engine algorithms may be applying machine-learning approaches to identify and rank results. Machine-translation tools, that could be used to search for data described in other languages, are also an example of really well established AI. Consider the accuracy of search engines and machine-translation: they are remarkable tools, but we also recognise that they are nowhere near 100% reliable. We still generally rely on a human to sift through the results they give.

  • Get – One of the most common, and powerful, applications of machine-learning, is in turning information into data: taking unstructured content, and adding structure through classification or data extraction. For example, image classification algorithms can be trained to convert complex imagery into a dataset of terms or descriptions; entity extraction and sentiment analysis tools can be used to pick out place names, event descriptions and a judgement on whether the event described is good or bad, from free text tweets, and data extraction algorithms can (in some cases) offer a much faster and cheaper way to transcribe thousands of documents than having humans do the work by hand. AI can, ultimately, change what counts as structured data or not.  However, that doesn’t mean that you can get all the data you need using AI tools. Sometimes, particularly where well-defined categorical data is needed, getting data may require creation of new reporting tools, definitions and data standards.

  • Verify – School of Data describe the verification step like this: “We got our hands in the data, but that doesn’t mean it’s the data we need. We have to check out if details are valid, such as the meta-data, the methodology of collection, if we know who organised the dataset and it’s a credible source.” In the context of AI-extracted data, this offers an opportunity to talk about training data and test data, and to think about the impact that tuning tolerances to false-positives or false-negatives might have on the analysis that will be carried out. It also offers an opportunity to think about the impact that different biases in the data might have on any models built to analyse it.

  • Clean – When bringing together data from multiple sources, there may be all sorts of errors and outliers to address. Machine-learning tools may prove particularly useful for de-duplication of data, or spotting possible outliers. Data cleaning to prepare data for a machine-learning based analysis may also involve simplifying a complex dataset into a smaller number of variables and categories. Working through this process can help build an understanding of the ways in which, before a model is applied, certain important decisions have already been made.

  • Analyse – Often, data analysis takes the form of simple descriptive charts, graphs and maps. But, when AI tools are added to the mix, analysis might involve building predictive models, able, for example, to suggest areas of a county that might see future hot-spots of violence, or that create interactive tools that can be used to perform ongoing monitoring of social media reports. However, it’s important in adding AI to the analysis toolbox, not to skip entirely over other statistical methods: and instead to think about the relative strengths and weaknesses of a machine-learning model as against some other form of statistical model. One of the key issues to consider in algorithmic analysis is the ’n’ required: that is, the sample size needed to train a model, or to get accurate results. It’s striking that many machine-learning techniques required a far larger dataset that can be easily supplied outside big corporate contexts. A second issue that can be considered in looking at analysis is how ‘explainable’ a model is: does the machine-learning method applied allow an exploration of the connections between input and output? Or is it only a black box.

  • Present – Where the output of conventional data analysis might be a graph or a chart describing a trend, the output of a machine-learning model may be a prediction. Where a summary of data might be static, a model could be used to create interactive content that responds to user input in some way. Thinking carefully about the presentation of the products of machine-learning based analysis could support a deeper understanding of the ways in which such outputs could or should be used to inform action.

The bullets above give just some (quickly drafted and incomplete) examples of how the data pipeline can be used to explore AI-literacy alongside data literacy. Hopefully, however, this acts as enough of a proof-of-concept to suggest this might warrant further development work.

The benefit of teaching AI literacy through open data

I also argue in The State of Open Data that:

AI approaches often rely on centralising big datasets and seeking to personalise services through the application of black-box algorithms. Open data approaches can offer an important counter-narrative to this, focusing on both big and small data and enabling collective responses to social and developmental challenges.

Operating well in a datified world requires citizens to have a critical appreciation of a wide variety of ways in which data is created, analysed and used – and the ability to judge which tool is appropriate to which context.  By introducing AI approaches as one part of the wider data toolbox, it’s possible to build this kind of literacy in ways that are not possible in training or capacity building efforts focussed on AI alone.

The politics of misdirection? Open government ≠ technology.

[Summary: An extended write-up of a tweet-length critique]

The Open Government Partnership (OGP) Summit is, on many levels, an inspiring event. Civil society and government in dialogue together on substantive initiatives to improve governance, address civic engagement, and push forward transparency and accountability reforms. I’ve had the privilege, through various projects, to be a civil society participant in each of the 6 summits in Brasilia, London, Mexico, Paris, Tbilisi and now Ottawa. I have a lot of respect for the OGP Support Unit team, and the many government and civil society participants who work to make OGP a meaningful forum and mechanism for change. And I recognise that the substance of a summit is often found in the smaller sessions, rather than the set-piece plenaries. But, the summit’s opening plenary offered a powerful example of the way in which a continued embrace of a tech-goggles approach at OGP, and weaknesses in the design of the partnership and it’s events, misdirect attention, and leave some of the biggest open government challenges unresolved.

Trudeau’s Tech Goggles?

We need to call out the techno-elitism, and political misdirection, that mean  the Prime Minister of Canada can spend the opening plenary in an interview that focussed more on regulation of Facebook, than on regulation of the money flowing into politics; and more time answering questions about his Netflix watching, than discussing the fact that millions of people still lack the connectivity, social capital or civic space to engage in any meaningful form of democratic decision making. Whilst (new-)media inevitably plays a role in shaping patterns of populism, a narrow focus on the regulation of online platforms directs attention away from the ways in which economic forces, transportation policy, and a relentless functionalist focus on ‘efficient’ public services, without recognising their vital role in producing social-solidarity,  has contributed to the social dislocation in which populism (and fascism) finds root.

Of course, the regulation of large technology firms matters, but it’s ultimately an implementation detail that some come as part of wider reforms to our democratic systems. The OGP should not be seeking to become the Internet Governance Forum (and if it does want to talk tech regulation, then it should start by learning lessons from the IGFs successes and failures), but should instead be looking deeper at the root causes of closing civic space, and of the upswing of populist, non-participatory, and non-inclusive politics.

Beyond the ballot box?

The first edition of the OGP’s Global Report is sub-titled ‘Democracy Beyond the Ballot Box and opens with the claim that:

…authoritarianism is on the rise again. The current wave is different–it is more gradual and less direct than in past eras. Today, challenges to democracy come less frequently from vote theft or military coups; they come from persistent threats to activists and journalists, the media, and the rule of law.

The threats to democracy are coming from outside of the electoral process and our response must be found there too. Both the problem and the solution lie “beyond the ballot box.”

There appears to be a non-sequitur here. That votes are not being stolen through physical coercion, does not mean that we should immediately move our focus beyond electoral processes. Much like the Internet adage that ‘censorship is damage, route around it, there can be a tendency in Open Government circles to treat the messy politics of governing as a fundamentally broken part of government, and to try and create alternative systems of participation or engagement that seek to be ‘beyond politics’. Yet, if new systems of participation come to have meaningful influence, what reason do we have to think they won’t become subject to the legitimate and illegitimate pressures that lead to deadlock or ‘inefficiency’ in our existing institutions? And as I know from local experience, citizen scrutiny of procurement or public sending from outside government can only get us so far without political representatives willing to use and defend they constitutional powers of scrutiny.

I’m more and more convinced that to fight back against closing civic space and authoritarian government, we cannot work around the edges: but need to think more deeply about about how we work to get capable and ethical politicians elected: held in check by functioning party systems, and engaging in fair electoral competition overseen by robust electoral institutions. We need to go back to the ballot box, rather than beyond it. Otherwise we are simply ceding ground to the forces who have progressively learnt to manipulate elections, without needing to directly buy votes.

Globally leaders, locally laggards?

The opening plenary also featured UK Government Minister John Penrose MP. But, rather than making even passing mention of the UK’s OGP National Action Plan, launched just one day before, Mr Penrose talked about UK support for global beneficial ownership transparency. Now: it is absolutely great that that ideas of beneficial ownership transparency are gaining pace through the OGP process.

But, there is a design flaw in a multi-stakeholder partnership where a national politician of a member country is able to take the stage without any response from civil society. And where there is no space for questions on the fact that the UK government has delayed the extension of public beneficial ownership registries to UK Overseas Territories until at least 2023. The misdirection, and #OpenWashing at work here needs to be addressed head on: demanding honest reflections from a government minister on the legislative and constitutional challenges of extending beneficial ownership transparency to tax havens and secrecy jurisdictions.

As long as politicians and presenters are not challenged when framing reforms as simple (and cheap) technological fixes, we will cease to learn about and discuss the deeper legal reforms needed, and the work needed on implementation. As our State of Open Data session on Friday explored: data and standards must be the means not the ends, and more public scepticism about techno-determinist presentations would be well warranted.

Back, however, to event design. Although when hosted in London, the OGP Summit offered UK civil society at least, an action-forcing moment to push forward substantive National Action Plan commitments, the continued disappearance of performative spaces in which governments account for their NAPs, or  different stakeholders from a countries multi-stakeholder group share the stage, means that (wealthy, and northern) governments are put in control of the spin.

Grounds for hope?

It’s clear that very many of us understand that open government ≠ technology, at least if (irony noted) likes and RTs on the below give a clue. 

But we need to hone our critical instincts to apply that understanding to more of the discussions in fora like OGP. And if, as the Canadian Co-Chair argued in closing, “OGP is developing a new forms of multilateralism”, civil society needs to be much more assertive in taking control of the institutional and event design of OGP Summits, to avoid this being simply a useful annual networking shin-dig. The closing plenary also included calls to take seriously threats to civic space: but how can we make sure we’re not just saying this from the stage in the closing, but that the institutional design ensures there are mechanisms for civil society to push forward action on this issue. 

In looking to the future of OGP, we should consider how civil society spends some time taking technology off the table. Let it emerge as an implementation detail, but perhaps let’s see where we get when we don’t let techo-discussions lead?

The lamentable State of Open Government in the UK

Yesterday the UK Government published, a year late, it’s most recent Open Government Partnership National Action Plan. It would be fair to say that civil society expectations for the plan were low, but when you look beyond the fine words to the detail of the targets set, the plan appears to  limbo under even the lowest of expectations.

For example, although the Ministerial foreword acknowledges that “The National Action Plan is set against the backdrop of innovative technology being harnessed to erode public trust in state institutions, subverting and undermining democracy, and enabling the irresponsible use of personal information.”, the furthest the plan goes in relation to these issues is a weak commitment to “maintain an open dialogue with data users and civil society to support the development of the Government’s National Data Strategy.” This commitment has supposedly been ‘ongoing’ since September 2018, yet try as I might to find any public documentation of how the government is engaging around the data strategy – I’m drawing a blank. Not to mention that there is absolutely zilch here about actually tackling the ways in which we see democracy being subverted, not only through use of technology, but also through government’s own failures to respond to concerns about the management of elections or to bring forward serious measures to tackle the illegal flow of money into party and referendum campaigning. For work on open government to be meaningful we have to take off the tech-goggles, and address the very real governance  and compliance challenges harming democracy in the UK. This plan singularly fails at that challenge.

In short, this is a plan with nothing new; with very few measurable targets that can be used to hold government to account; and with a renewed conflation of open data and open government.

Commitment 3 on Open Policy Making, to “Deliver at least 4 Open Policy Making demonstrator projects” have suspicious echoes of the 2013 commitment 16 to run “at least five ‘test and demonstrate projects’ across different policy areas.”. If central government has truly “led by example” on “increasingly citizen participation” as the introduction to this plan claims, then it seems all we are every going to get are ad-hoc examples. Evidence of any systemic action to promote engagement is entirely absent.  The recent backsliding on public engagement in the UK vividly underscored by the fact that commitment 8 includes responding by November 2019 to a 2016 consultation. Agile, iterative and open government this is not.

Commitment 6 on an ‘Innovation in Democracy Programme involves token funding to allow a few local authority areas to pilot ‘Area Democracy Forums’, based on a citizens assembly models – at the same time that the government refuses to support any sort of participatory citizen dialogue to deal with pressing issue of both Brexit and Climate Change. The contract to deliver this work has already been tendered in any case, and the only targets in the plan relate to ‘pilots delivered’ and ‘evaluation’. Meaningful targets that might track how far progress has been made in actually giving citizens power over decisions making are notably absent.

The most substantive targets can be found under commitments 4 and 5 on Open Contracting and Natural Resource Transparency (full disclosure: most of the Open Contracting targets come from draft content I wrote when a member of the UK Open Contracting Steering Group). If Government actually follows through on the commitment to “Report regularly on publication of contract documents, and extent of redactions.”, and this reporting leads to better compliance with the policy requirements to disclose contracts, there may even be something approaching transformative here. But, the plan suggests such a commitment to quarterly reporting should have been in place since the start of the year, and I’ve not yet tracked down any such report. 

Overall these commitments are about house-keeping: moving forward a little on the compliance with policy requirements that should have been met long ago. By contrast, the one draft commitment that could have substantively moved forward Open Contracting in the UK, by shifting emphasis to the local level where there is greatest scope to connect contracting and citizen engagement, is the one commitment conspicuously dropped from the final National Action Plan.  Similarly, whilst the plan does provide space for some marginal improvements in grants data (Commitment 1), this is simply a continuation of existing commitments.

I recognise that civil servants have had to work long and hard to get even this limited NAP through government given the continued breakdown normal Westminster operations. However, as I look back to the critique we wrote of the first UK OGP NAP back in 2012, it seems to me that we’re back where we started or even worse: with a government narrative that equates open government and open data, and a National Action Plan that repackages existing work without any substantive progress or ambition. And we have to consider when something so weak is actually worse than nothing at all.

I resigned my place on the UK Open Government Network Steering Group last summer: partly due to my own capacity, but also because of frustration at stalled progress, and the co-option of civil society into a process where, instead of speaking boldly about the major issues facing our public sphere, the focus has been put on marginal pilots or small changes to how data is published. It’s not that those things are unimportant in and of themselves: but if we let them define what open government is about – well, then we have lost what open government should have been about.

And even we do allow the OGP to have a substantial emphasis on open data, where the UK government continues to claim leadership, the real picture is not so rosy. I’ll quote from Rufus Pollock and Danny Lämmerhirt’s analysis of the UK in their chapter for the State of Open Data:

“Open data lost most of its momentum in late 2015 as government attention turned to the Brexit referendum and later to Brexit negotiations. Many open data advisory bodies ceased to exist or merged with others. For example, the Public Sector Transparency Board became part of the Data Steering Group in November 2015, and the Open Data User Group discontinued its activities entirely in 2015. There have also been political attempts to limit the Freedom of Information Act (FOIA) based on the argument that opening up government data would be an adequate substitute. There are still issues around publishing land ownership information across all regions, and some valuable datasets have been transferred out of government ownership avoiding publication, such as the Postal Address File that was sold off during the privatisation of the Royal Mail.”

The UK dropped in the Open Data Barometer rankings in 2017 (the latest data we have), and one of the key commitments from the last National Action Plan to “develop a common data standard for reporting election results in the UK” and improve crucial data on elections results had ‘limited’ progress according to the IRM, demonstrating a poor recent track record from the UK on opening up new datasets where it matters.

So where from here?

I generally prefer my blogging (and engagement) to be constructive. But I’m hoping that sometimes, the most constructive thing to do, is to call out the problems, even when I can’t see a way to solutions. Right now, it feels to me as though the starting point must be to recognise:

  • The UK Government is failing to live up to the Open Government Declaration.
  • UK Civil Society has failed to use the latest OGP NAP process to secure any meaningful progress on the major open government issues of the day.
  • The Global OGP process is doing very little to spur on UK action.

It’s time for us to face up to these challenges, and work out where we head from here. 

Javelin Park Episode 5: Return of the ICO

[Summary: The Information Commissioner’s Office has upheld an appeal against continued redaction of key financial information about the Javelin Park Incinerator Public Private Partnership (PPP) project in Gloucestershire]

The Story So Far

I’ve written before about controversy over the contract for Javelin Park, a waste incinerator project worth at least £0.5bn and being constructed just outside Stroud as part of a 25-year Public Private Partnership deal. There’s a short history at the bottom of this article, which breaks off in 2015 when the Information Commissioners’ Office last ruled against Gloucestershire County Council (GCC) and told them to release an unredacted copy of the PPP contract. GCC appealed that decision, but were finally told by the Information Tribunal in 2017 to publish the contract: which they did. Sort of. Because in the papers released, we found out about a 2015 renegotiation that had taken place, meaning that we still don’t know how much local taxpayers are on the hook for, nor how the charging model affects potential recycling rates, or incentives to burn plastics.

In June last year, through FOI, I got a heavily redacted copy of a report considering the value for money of this renegotiated contract, but blacking out all the key figures. This week the Information Commissioner upheld my appeal against the redactions, ruling that GCC have 35 days to provide un-redacted information. They may still make their own appeal against this, but the ICO decision makes very clear that the reasoning from the 2017 Information Tribunal ruling holds firm when it comes to the public interest in knowing salient details of original and renegotiated contracts.

The Story Right Now

For the last two weeks, Gloucestershire resident Sid Saunders has been on hunger strike outside the county’s Shire Hall to call for the release of the full revised contract between Gloucestershire County Council and Urbaser Balfour Beatty. This is, to my knowledge, unprecedented. It demonstrates the strength of feeling over the project, and the crucial importance of transparency around contracts in securing public accountability.

GCC are already weeks overdue responding to the most recent FOI/EIR request for the latest contract text, and continue to stonewall requests for even basic details, repeating discredited soundbites about potential savings that rely on outdated assumptions about comparisons and high waste flows.

On Wednesday, Sid and other local activists staged a dignified silent protest at the meeting of GCC Cabinet, where public and councillor questions on an air quality agenda item had unconstitutionally been excluded.

Tomorrow we’ll be heading to Gloucester in support of Sid’s continued campaign for information, and for action to bring accountability to this mega-project.

It’s against this backdrop that I wanted to draw out some of the key elements of the ICO’s decision notice, and observations on GCC responses to FOI and EIR requests.

Unpacking the decision notice

The decision notice has not yet been published on the ICO website, but I’ve posted a copy here and will update the link once the ICO version is online.

The delays can’t stay

It is notable that every request for information relating to Javelin Park has been met with very delayed replies, exceeding the statutory limits set down in the Freedom of Information Act (FOIA), and the stricter Environmental Information Regulations (EIR).

The decision notice states that the “council failed to comply with the requirements of Regulation 5(2) and Regulation 14(2)” which set strict time limits on the provision of information, and the grounds for which an authority can take extra time to respond.

Yet, we’re seeing in the latest requests, that GCC suggest that they will need until the end of June (which falls, curiously, just days after the next full meeting of the County Council) to work out what they can release. I suspect consistent breaches of the regulations on timeliness are not likely to be looked on favourably by the ICO in any future appeals.

The information tribunal principles stand

The Commissioners decision notice draws heavily on the earlier Information Tribunal ruling that noted that, whilst there are commercial interests of the Authority, and UBB at play, there are significant public interests in transparency, and:

“In the end it is the electorate which must hold the Council as a whole to account and the electorate are more able to do that properly if relevant information is available to all”

The decision note makes clear that the reasoning applies to revisions to the contract:

Even with the disclosures ordered by the Tribunal from the contract the Commissioner considers that it is impossible for the public to be fully aware of the overall value for money of the project in the long term if it is unable to analyse the full figures regarding costs and price estimates which the council was working from at the time of the revised project plan.

going on to say:

The report therefore provides more current, relevant figures which the council used to evaluate and inform its decisions regarding the contract and it will presumably be used as a basis for its future negotiations over pricing and costs. Currently these figures are not publicly available, and therefore the public as a whole cannot create an overall picture as to whether the EfW development provides value for money under the revised agreement.

As the World Bank PPP Disclosure Framework makes clear, amendment and revisions to a contract are as important as the contract itself, and should be proactively published. Not laboriously dragged out of an authority through repeated trips to information tribunals.

Prices come from markets, not from secrets

A consistent theme in the GCCs case for keeping heavy redactions in the contract is that disclosure of information might affect the price they get for selling electricity generated at the plant. However, the decision notice puts the point succinctly:

Whilst she [the Commissioner] also accepts that if these figures are published third parties might take account of them during negotiations, the main issue will be the market value of electricity at the time that negotiations are taking place.

As I recall from first year economics lectures (or perhaps even GCSE business studies…): markets function better with more perfect information. The energy market is competitive, and there is no reason to think that selective secrecy will distort the market or secure the authority a better deal.

(It is worth noting that the same reasoning, hiding information to ‘get a better deal’ seems to be driving the non-disclosure of details of the £53m of land the authority plan to dispose of – again raising major questions about exactly whose interests are being served by a culture of secrecy?).

Not everything is open

The ICO decision notice is nuanced. It does find some areas where, with the commercial interest of the private party invoked, public interest is not strong enough to lead to disclosure. The Commissioner states:

These include issues such as interest and debt rates and operating costs of UBB which do not directly affect the overall value for money to the public, but which are commercially sensitive to UBB.

This makes some sense. As this decision notice relates to a consultants report on Value for Money, rather than the contract with the public authority, it is possible for there to be figures that do not warrant wider disclosure. However, following the precedent set by the Information Tribunal, the same reasoning would only apply to parts of a contract if they had been agreed in advance to be commercially confidential. As Judge Shanks found, only a limited part of the agreement between UBB and GCC was covered by such terms. Any redactions GCC now want to apply to a revised agreement should start only from consulting contract Schedule 23 on agreed commercial confidential information.

Where next?

GCC have either 28 days to appeal the decision notice, or 35 days to provide the requested information. The document in question is only a 29 page report, with a small number of redactions to remove, so it certainly should not take that long.

Last time GCC appealed to a Tribunal in the case of the 2013 Javelin Park Contract they spent upwards of £400,000 of taxpayers money on lawyers*, only to be told to release the majority of the text. Given the ICO Decision Notice makes clear it is relying on the reasoning of the Tribunal, a new appeal to the tribunal would seem unlikely to succeed.

However, we do now have to wait and see what GCC do, and whether we’ll get to know what the renegotiated contract prices were in 2015. Of course, this doesn’t tell us whether or not there has been further renegotiation, and for that we have to continue to push for proactive transparency and a clear open contracting policy at GCC that will make transparency the norm, rather than something committed local citizens have to fight for through self-sacrificing direct action.

*Based on public spending data payments from Residential Waste Project to Eversheds.

Publishing with purpose? Reflections on designing with standards and locating user engagement

[Summary: Thinking aloud about open data and data standards as governance tools]

There are interesting shifts in the narratives of open data taking place right now.

Earlier this year, the Open Data Charter launched their new stategy: “Publishing with purpose”, situating it as a move on from the ‘raw data now’ days where governments have taken an open data initaitive to mean just publishing easy-to-open datasets online, and linking to them from data catalogues.

The Open Contracting Partnership, which has encouraged governments to purposely prioritise publication of procurement data for a number of years now, has increasingly been exploring questions of how to design interventions so that they can most effectively move from publication to use. The idea enters here that we should be spending more time with governments focussing on their use cases for data disclosure.

The shifts are welcome: and move closer to understanding open data as strategy. However, there are also risks at play, and we need to take a critical look at the way these approaches could or should play out.

In this post, I introduce a few initial thoughts, though recognising these are as yet underdeveloped. This post is heavily influenced by a recent conversation convened by Alan Hudson of Global Integrity at the OpenGovHub, where we looked at the interaction of ‘(governance) measurement, data, standards, use and impact ‘.

(1) Whose purpose?

The call for ‘raw data now‘ was not without purpose: but it was about the purpose of particular groups of actors: not least semantic web reseachers looking for a large corpus of data to test their methods on. This call configured open data towards the needs and preferences of a particular set of (technical) actors, based on the theory that they would then act as intermediaries, creating a range of products and platforms that would serve the purpose of other groups. That theory hasn’t delivered in practice, with lots of datasets languishing unused, and governments puzzled as to why the promised flowering of re-use has not occurred.

Purpose itself then needs unpacking. Just as early research into the open data agenda questioned how different actors interests may have been co-opted or subverted – we need to keep the question of ‘whose purpose’ central to the publish-with-purpose debate.

(2) Designing around users

Sunlight Foundation recently published a write-up of their engagement with Glendale, Arizona on open data for public procurement. They describe a process that started with a purpose (“get better bids on contract opportunities”), and then engaged with vendors to discuss and test out datasets that were useful to them. The resulting recommendations emphasise particular data elements that could be prioritised by the city administration.

Would Glendale have the same list of required fields if they had started asking citizens about better contract delivery? Or if they had worked with government officials to explore the problems they face when identifying how well a vendor will deliver? For example, the Glendale report doesn’t mention including supplier information and identifiers: central to many contract analysis or anti-corruption use cases.

If we see ‘data as infrastructure’, then we need to consider the appropriate design methods for user engagement. My general sense is that we’re currently applying user centred design methods that were developed to deliver consumer products to questions of public infrastructure: and that this has some risks. Infrastructures differ from applications in their iterability, durability, embeddedness and reach. Premature optimisation for particular data users needs may make it much harder to reach the needs of other users in future.

I also have the concern (though, I should note, not in any way based on the Glendale case) that user-centred design done badly, can be worse than user-centred design done not at all. User engagement and research is a profession with it’s own deep skill set, just as work on technical architecture is, even if it looks at first glance easier to pick up and replicate. Learning from the successes, and failures, of integrating user-centred design approaches into bureacratic contexts and government incentives structures need to be taken seriously. A lot of this is about mapping the moments and mechanisms for user engagement (and remembering that whilst it might help the design process to talk ‘user’ rather than ‘citizen’, sometimes decisions of purpose should be made at the level of the citizenry, not their user stand-ins).

(3) International standards, local adoption

(Open) data standards are a tool for data infrastructure building. They can represent a wide range of user needs to a data publisher, embedding requirement distilled from broad research, and can support interoperabiliy of data between publishers – unlocking cross-cutting use-cases and creating the economic conditions for a marketplace of solutions that build on data. (They can, of course, also do none of these things: acting as interventions to configure data to the needs of a particular small user group).

But in seeking to be generally usable, standard are generally not tailored to particular combinations of local capacity and need. (This pairing is important: if resource and capacity were no object, and each of the requirements of a standard were relevant to at least one user need, then there would be a case to just implement the complete standard. This resource unconstrained world is not one we often find ourselves in.)

How then do we secure the benefits of standards whilst adopting a sequenced publication of data given the resources available in a given context? This isn’t a solved problem: but in the mix are issues of measurement, indicators and incentive structures, as well as designing some degree of implementation levels and flexibility into standards themselves. Validation tools, guidance and templated processes all help too in helping make sure data can deliver both the direct outcomes that might motivate an implementer, whilst not cutting off indirect or alternative outcomes that have wider social value.

(I’m aware that I write this from a position of influence over a number of different data standards. So I have to also introspect on whether I’m just optimising for my own interests in placing the focus on standard design. I’m certainly concerned with the need to develop a clearer articulation of the interaction of policy and technical artefacts in this element of standard setting and implementation, in order to invite both more critique, and more creative problem solving, from a wider community. This somewhat densely written blog post clearly does not get there yet.)

Some preliminary conclusions

In thinking about open data as strategy, we can’t set rules for the relative influence that ‘global’ or ‘local’ factors should have in any decision making. However, the following propositions might act as starting point for decision making at different stages of an open data intervention:

  • Purpose should govern the choice of dataset to focus on
  • Standards should be the primary guide to the design of the datasets
  • User engagement should influence engagement activities ‘on top of’ published data to secure prioritised outcomes
  • New user needs should feed into standard extension and development
  • User engagement should shape the initiatives built on top of data

Some open questions

  • Are there existing theoretical frameworks that could help make more sense of this space?
  • Which metaphors and stories could make this more tangible?
  • Does it matter?

Shaping open government in the UK: call for steering committee nominations

[Summary: Looking for great candidates to drive progress on Open Government in the UK through the UK Civil Society OGP Steering Committee and Multi-stakeholder Forum. Nomination deadline: 16th April]

Nominations are now open for civil society members of the UK Open Government Partnership (OGP) Multi-stakeholder Forum. It’s a key time for open government in the UK, as we look to maintain momentum and push forward new reforms, within a wider national and global environment where open, participatory and effective governance is increasingly under threat.

If you are, or you know someone, passionate about open government reforms and with the capacity to drive change, please consider making a nomination. Self nominations are welcome, and membership of the Open Government Civil Society Network (the only pre-condition for nomination) is open to anyone who supports the principles of the network.

Shaping open government

The UK is currently preparing it’s fourth Open Government National Action Plan. In previous plans we’ve pursued and made progress on issues like beneficial ownership transparency (in the news this week as campaigners seek more data on offshore ownership of London property in the context of debates on illicit Russian money invested here), open contracting (equally topical as the Carrillion Crisis, and debates over passport printing unfold), and open policy making.

Yesterday, members of the current Civil Society Network Steering Committee and other guests were hosted at the Speakers House in Parliament to hear an update from Dr Ben Worthy, the independent reviewer of UK progress. The event underscored the importance of active civil society engagement to put issues on the open government agenda, and the unique opportunity offered by the OGP process to accelerate reforms and support deep dialogue between government and civil society. Ben also challenged those assembled to think about the ‘signature reforms’, engagement experiments and high profile interventions that the next National Action Plan should support, and to look to engage more with Parliament to secure parliamentary scrutiny of transparency and open government policy.

One of the ways in the UK OGP Civil Society Network we’ve been preparing to meet these challenges is by updating the Terms of Reference for the Civil Society Network Steering Group so that it is ready to act as the civil society half of a standing Multi-stakeholder Forum on Open Government in the UK. This will meet regularly with government, including with Ministers with Open Government responsibility, to secure and monitor open government commitments.

To bring on board a wider set of skills and experience, we’ve also increased the number of places on the Steering Committee, creating five spaces now up for election through an open process that also seeks to secure a good gender balance, and representation of both civil society organisations and independent citizens. I’m personally keen to see us use this opportunity to bring new skills and experience onboard for the Steering Committee and Multi-stakeholder Forum, including people with experience of working on reforms within government (though current government officials working on open gov policy are not eligible to apply), specialists in civic participation, and experts on right to information issues.

Responsibilities of Steering Group members include:

  • Engaging with the relevant Minister and civil servants with responsibility for the OGP
  • Participating in the Multistakeholder Forum between government and civil society
  • Speaking on behalf of the Open Government Network
  • Supporting and overseeing the work of the Network Coordinator and ensuring the smooth running of the OGN

and to date it’s been a committment of 3 – 15 hours a month (depending on the stage of the National Action Plan process) with a regular Steering Committee call and periodic meetings (usually in London, though we’ve been trying to move around the country whenever possible) with government officials and other members of the civil society network. The nomination form is here if you are interested – and even if you’re not interested in a role on the Steering Committee right now, do join the network via it’s open mailing list for other opportunities to get involved.

As a current Steering Committee member, I’d be happy to answer any questions (@timdavies) about the process and the potential here to take forward open government reforms in the UK, and as part of the 70+ country strong global OGP network.

Where next for Open Contracting in the UK?

[Summary: reflections and ideas building on conversations at the OGP National Action Plan workshop in Bristol yesterday with ideas about a fund for scoping studies, strengthening the ICO role around contract disclosure, and better national Management Information (and a continuation of this blog’s ‘Open Contracting’ season: I promise I’ll write about some other things soon!]

Open Contracting has been a theme in the last two UK Open Government Partnership National Action Plans. In 2013 Commitment 12 said:

*The UK government endorses the principles of open contracting. We will build on the existing foundation of transparency in procurement and contracting and, in consultation with civil society organisations and other stakeholders, we will look at ways to enhance the scope, breadth and usability of published contractual data. *

In 2016, the Open Contracting moved up to slot number 5, with a commitment to:

…implement the Open Contracting Data Standard (OCDS) in the Crown Commercial Service’s operations by October 2016; [and to] begin applying this approach to major infrastructure projects, starting with High Speed Two, and rolling out OCDS across government thereafter.

As we head towards the next National Action Plan in 2018, it’s time to focus on local implementation. Whilst government policies on procurement, and even on asset disposals (e.g. selling off government land), provide clear guidance on transparency and publication of data and documents (including full contract text), local implementation is sorely lacking.

The day after Carillion’s collapse it was only possible to locate less than 30 of the 400+ government contracts with Carillion through the national Contracts Finder dataset. And none had the text of contracts attached. Local authorities continue to invoke ‘commercial confidentiality’ as a blanket reason to keep procurement or asset sale information secret, increasing corruption risks, and undermining opportunities to promote value for money, local economic development and strategic procurement across the public sector.

When policy is good, but implementation is poor, what levers are there? At the recent Bristol workshop we explored a range of opportunities. In general, approaches fall into a few different categories:

  • Improving enforcement. There are few consequences right now for a government agency that is not following procurement guidance. Although local government is prone to resist new or strengthened requirements that come without funding, there may be opportunities to strengthen regulators, or increase the consequences of non-compliance. However, this often needs to rely on:

  • Better monitoring. It’s only when we can see which authorities are failing in their procurement transparency obligations, or when we can identify leading and lagging agencies when it comes to use of pre-procurement dialogues for public and supplier engagement, that targeted enforcement of key practices becomes possible. Monitoring alone can sometimes create incentives for improved practice.

  • Making it easier. Confusion over the meaning of commercial confidentiality may be preventing good practice. Guidance from government, or better design of software tools, can all help streamline the process of complying. Government may have a role in setting the standards for procurement software, as well as the data standards for publishing transparency procurement information.

  • Show the benefits. The irony of low compliance with procurement best practices on transparency is, well, that best practice is often better. It brings savings, and better services. A programme to demonstrate this has a lot of value.

So, what could this look like in terms of concrete commitments:

  • Scoping study support fund. Open Contracting has the potential to be win-win-win: efficiency for government, accountability to citizens, and opportunities for local businesses. But building multi-stakeholder support for new initiatives, and setting priorities for local action needs an understanding of the the current situation. Where are the biggest blocks to opening up information on procurement? Are the challenges policy or process? Where will leadership for change come from? How can different stakeholders work together to generate, share and use data and information – and to design better procurement processes? These are all questions that can be answered through a scoping study.

    Development Gateway, HIVOS and the Open Contracting Partnership have well-tested scoping study methods that have been used around the world to support national-level Open Contracting initiatives. Adapting this method for city or regional use, and providing kick-start funding to help local partnerships come together, assess their situation, and plan for change, could be a very effective way to catalyse a move from open contracting policy to local, relevant and high-impact practice.

    With just £100k investment, Central government could support studies in 10 or more areas.

  • Improved national metrics. As part of implementation of the last NAP commitment, the Contracts Finder platform now has a (very) basic statistics page, providing an overview of which public authorities are publishing their contracts. With the underlying open data, it’s possible to compute a few more metrics, exploring the kind of contracts different agencies are publishing information on, or assessing gaps between tender and award. However, central government could go a lot further in providing Business Intelligence dashboards on top of the data in Contracts Finder, and publishing much more accessible reports on policy compliance. The OpenTender.eu project demonstrate some of what can be done with the analysis of collated procurement data, calculating a range of indicators.

  • Empowering the Information Commissioner’s Office. The ICO has a key role in enforcing the public right to information, yet has a substantial backlog of cases, many including FOI requests relating to contracts. Support for the ICO to develop further guidance, monitor compliance and take enforcement activities against authorities who are hiding behind bogus commercial confidentiality arguments, could shift the balance from the current ‘closed by default’ position when it comes to the contract details that matter, to proper implementation of the open-by-default policy.

  • Extending FOI for contractors. Although the idea that the Freedom of Information Act should apply to any provider of public services, regardless of whether they are public of private sector, is one that has been put forward, and knocked back, in previous National Action Planning processes, it remains as relevant as ever. In light of the recent Carillion Collapse, and with outsourcing arrangements looking increasingly shaky, the public right to know about delivery of public services clearly needs re-asserting more strongly.

  • Improved model contract clauses. Earlier rounds of the OGP NAP have secured model contract clauses for national government contracts, focussing on provision of performance information. Revisiting the question of model clauses, but with a focus on local government, and on further requirements around transparency of delivery, would offer a parallel route to increase transparency of local service delivery, creating a contractual right to information, pursued alongside efforts to extend the legal right through FOI.

A mix of the commitments above would combine different levers: enforcement, incentives and oversight – with a chance to truly build effective open contracting. Within the wider UK landscape, for the OGP process to remain credible, we will need to see some serious and ambitious commitments, and open contracting is a key area where these could be made.

(Hat-tip to @carla_denyer for the framing of how to motivate government action used in the above, and to all at the Bristol @openGovUK workshop who discussed Open Contracting.)

UK open contracting: good policy & maturing platform – it’s time to invest in implementation

[Summary: relecting on national open contracting progress in the UK]

Last week the Prime Minister issued a letter reminding central government departments of their transparency responsibilities and providing updated guidance on the information that should be disclosed and how. Amongst the guidance, is a revised note on “Publication of Central Government Tenders and Contracts” which provides a good snapshot of the current position for national government contracting (and which is also framed as useful guidance for Local Authorities considering their responsibilities under the local government transparency code).

The note covers:

  • The legislative requirement to publish most opportunities and awards over £10,000 via the Contracts Finder platform;
  • The policy committment of central government to see all tender documents, and contract texts attached to those notices on Contracts Finder;
  • Guidance on all the documents that go to make up the contract (and so that should be attached to Contracts Finder)
  • Re-iteration of the limitations to redaction of contract documents;
  • Recommendations on transparency clauses to include in new contracts, to have clear agreement with suppliers over information that will be public.

As contracting transparency policy goes: this is good stuff. We’re not yet at the stage in the UK of having the kind of integrated public financial management systems that give us transparency from planning to final payment, nor are their the kind of lock-in measures such as checking a contract has been published before any invoices against it are paid. But it does provide a clear foundation to build on.

The platform that backs up this policy, Contracts Finder, has also seen some good progress recently. With hundreds of tender and award notices posted every week, it continues to provide good structured data in the Open Contracting Data Standard through an open API. In the last few weeks, the data has also started to capture company registration numbers for suppliers – a really important key to linking up contracting and company ownership information, and to better understanding patterns of public sector contracting. The steady progress of Contracts Finder as a national platform (with a number of features also now added to help capture sub-contracting processes too) makes it absolutely key to monitoring and improving implementation of the policies described above.

There are still some challenges for the platform: data quality (and document availability) for many of the records in Contracts Finder relies upon the features of e-Procurement systems used by departments or local authorities to manage their contracting processes. If these systems don’t encourage inclusion of company identifiers, or contracting documents, we may struggle to reach full policy compliance and the best data quality. Ongoing improvements to the APIs for data entry, and to the tools for monitoring data quality, could certainly help here, as would increased engagement with e-procurement system vendors to get them to bake open contracting into their platforms, as Chris Smith has called for.

However, as we head in 2018, whilst we have to keep working on policy and platforms – the real focus needs to be on implementation: monitoring and motivating each department or public agency to be sure they are not only seeing transparency in procurement as a tick-box compliance excercise, but instead making sure it is embraced as a core part of accountable and open government. To date, Open Contracting in the UK has been the work of a relatively small network of dedicated officials, activists and entrepreneurs. If the vibe at OC Global last month was anything to go by, 2018 may well be the year it moves into the mainstream.

Disclosure/notes

I’m a member of the UK Open Contracting Steering Group, working under Commitment 5 of the UK OGP plan and I work for Open Data Services Co-op as one of the Open Contracting Data Standard helpdesk team.

On the journey: five reflections from #ocglobal17 (Open Contracting Global)

At it’s heart, open contracting is a simple idea: whenever public money and resources are at stake through a contracting processes, transparency and participation should be the norm.

Yet, as the Open Contracting Global Summit (#ocglobal17) in Amsterdam this week has demonstrated, it’s also an idea that brings together a very wide community. Reflecting on conversations from the week, I’ve tried here to capture five key reflections on where we are at, and where we might be heading:

(1) It’s not just procurement

Although the open contracting emphasis is often on the way governments buy goods and services, there are many other contracts where public resources are at stake: from licenses and concessions, to Public Private Partnership deals and grant agreements.

These each have different dynamics, and different approaches might be needed to open up each kind of process.

The Open Contracting Data Standard (OCDS) is primarily designed around procurement processes, although at OCGlobal we gave the first public preview of the OCDS for PPPs profile, that extends the OCDS data model to provide a structured way of recording in-depth disclosures for Public Private Partnership deals.

(2) It’s not just JSON

Thanks to Article 19, the corridoors at OCGlobal had been turned into a ‘gallery of redaction’. Copies of contracting documents obtained through FOI requests provided tantalising hints of government and private sector deals: yet with all the key facts blacked out. These stood as a reminder of how many times the public are kept in the dark over contracts

Neither documents, nor data, on their own will answer all the question citizens or companies might have about contracting. Not will they automatically spark the kinds of participation, scrutiny and engagement that are the essential complement of transparency.

Although publication of standardised data might be the most concrete manifestation of open contracting, it’s problematic to conflate transparency or open contracting with use of the OCDS JSON schema. Indeed, the 5-star model published as part of the guidance for OCDS 1.0 highlights that governments can taken their first steps towards open contracting data by publishing any contracting information on the web, stepping up to machine-readability and standarised data as capacity allows.

Any other approach risks making the perfect into the enemy of the good: preventing publication until data is perfect.

The challenge ahead is in designing and refining the incentive structures that make sure open contracting efforts do not stop at getting a few documents online, or some fields in a JSON dataset – but instead that over time they broadens and deepen both disclosure, and effective use of the information that has been made available.

(3) It’s an iterative journey

There’s a much refreshed implementation section on the Open Contracting website, curating a range of guidance and tools to help put open contracting ideas into practice. The framing of a linear ‘seven steps’ journey towards open contracting is replaced with a ‘hopscotch’ presentation of the steps involved: with interlocking cycles of development and use.

This feels much closer to the reality I’ve experienced supporting open contracting implementations, which involve a dance back and forward between a vision for disclosure, and the reality of getting data and documents published from legacy systems, transparency features added to systems that are in development, or policies and practice changed to support greater citizen engagement in the contracting process.

There was a lot of talk at OC Global about e-procurement systems as the ideal source of open contracting data: yet for many countries, effective e-procurement deployments are a long way off, and so it’s important to keep in mind different ways tools like OCDS can be used:

  • Based-on – OCDS can provide a guide for reviewing and reflecting on current levels of disclosure, and for turning unstructured information into data to analyse. This is the approach pioneered by projects like Budeshi, who started out transcribing documents to data to demonstrate the value that a more data-driven approach could have to procurement monitoring.

  • Bolt-on – OCDS can be used as the target format when exporting data from existing contracting data systems. These might be reporting systems that capture regular monitoring returns on the contracting process, or transactional systems through which procurement is run. Here, the process of mapping existing data to OCDS can often reveal data quality issues in the source systems – and with the right feedback loops, this can lead to not only data publication, but also changes to improve data in future.

  • Built-in – OCDS can be used to inform the design of new systems – providing common shared data models, and a community where extended modelling of data can be discussed. However, it’s important to remember that building new systems is not just about data structures – it’s also about user experience, and right now, the OCDS doesn’t address this.

To my mind, OCDS provide a structured framework that should support use in all these different ways. As we iterate on the standard itself, it’s important we don’t undermine this flexibility – but that instead we use it to establish common ground on which publishers and users can debate issues of data quality. With the standard, those debates should be actionable: but it’s not up the standard itself to settle them.

(4) Contracting is core: but it doesn’t start or end there

Contracting is just one of the government processes that affects how resources are allocated and used. Before contracting starts, budgets are often set, or wide-reaching procurement plans established. During contract implementation, payment processes kick-in. And for the private companies involved in public contracts, there are all sorts of interlocking processes of registration, financing and taxation.

From an architectural perspective it’s important for us to understand the boundaries of the open contracting process, and how it can link up with other processes. For example, whilst OCDS can capture budget information as part of a contracting process (e.g. the amount of budget allocated to that process), it starts stretching the data model to represent a budget process nested within a contracting process.

As one of the break-out groups looking at budget, contract and spend integration noted, the key to joining up data is not putting everything in the same dataset or system, but comes from establishing business processes that ensure common identifiers are used to join up the systems that manage parallel processes.

There’s a lot of work to do before we have easy interoperability between different parts of an overall [accountability architecture](ACSP LINK LINK LINK) – but the biggest issues are of data production and use, rather than of standards and schemas.

(5) It’s time to tidy our terminology

The open contracting community is broad, and, as I recently wrote over here, “the word ‘standard’ means different things to different people.”. So does contracting. And tender. And validation. And assessment. And so-on.

Following recent workshops in London and Argentina, the OCDS team have been thinking a lot about how we tighten up our use of key terms and concepts, establishing a set of draft translation principles and policies, and we’ve been reflecting more on how to also be clearer on ideas like data validity, quality and feedback.

But we also have to recognise that debates over language are laden with power dynamics: and specialist language can be used to impose or exclude. Open contracting should not be about dumbing down complex processes of contracting, but nor should it be able requiring every citizen to learn procurement-speak. Again, for OCDS and other tools designed to support open contracting, we have balancing act: creating boundary objects that help different communities meet in the middle.

The first step towards this is just working out how we’re using words at the moment: checking on current practice, before working out how we can improve.

Gratitude

Asides from sparking a wealth of learning, the other thing an event like #OCGlobal17 does is remind me just how fortunate I am to get to work with such a inspiring network of people: exploring challenging issues with a great collaborative spirit. Thanks all!

The reflections above are more or less fragmentary, and I’m looking forward to working with many of the folk in the picture below to see where the journey takes us next.

Javelin Park: What’s in the Information Tribunal ruling?

[Summary: exploring on a local open contracting campaign victory and it’s implications for contract transparency]

On Friday, the Information Rights Tribunal ruled on the appeal by Gloucestershire County Council against an earlier ruling by the Information Commissioner that the contract for a large PFI (Public Private Partnership) project to build an waste incinerator at Javelin Park near Stroud should be substantially published.

Campaigners have been fighting for access to the contract since 2015, when their first Freedom of Information Request was refused. Although we discovered earlier this year that the contract text had been accidentally put into the public domain by the Council failing to properly apply all the redactions they have been arguing for to an earlier FOI response, the Information Tribunal ruling is important in that it:

  • Sets out clearly the Tribunal’s view on the sections of the contract and it’s schedules that should be in the public domain (almost all of it);
  • Sets out clear reasoning applicable to other UK contracts – supporting the idea that there is a strong public interest in the text of contracts, and that exceptions for commercial confidentiality should be minimal;
  • Provides support for the idea that contract text should be proactively published.

You can find a copy of the ruling here, but, as it runs to 67 pages I’ve pulled out a few of the key points below.

(A) The basics

In paragraph 6 – 21 the Tribunal helpfully describe the background of the case – which involves a 25-year Public Private Partnership contract involving the build and operation of a Waste Incinerator, with an estimated overall contract value of £500m, and annual capacity of up to 190,000 tonnes.

The original request for an unredacted copy of the contract was made under the Environmental Information Regulations (EIR) – and was fought by the council on the grounds of Intellectual Property Rights, and Commercial Confidentiality.

(B) The arguments

Below is a non-exhaustive summary of arguments explored in the tribunal report (from the perspective of a non-lawyer trying to sense-make):

(1) Environment Information Regulations vs FOI? The council argued that sections of the contract should be considered under FOI (slightly weaker access rights) instead of Environment Information Regulations. The Tribunal ruled that the contract, as a whole, fell under EIRs (Para 39 & 40) as it, as a whole, represents a measure with substantial environmental implications.

(2) Commercial confidentiality? The council argued that large sections of the contract, including pricing and volume information, were commercially sensitive and their disclosure could pose a risk to both the private contractor, and the council, in terms of impacts on any future tendering activity.

In paragraph 44 the tribunal provide a useful discussion of EIR Regulation 12(5)(e) and the difficulty of working out to what extent an adverse effect of disclosure on economic interests of parties need to be established to justify confidentiality. However, the arguments of the Tribunal hinge much more on Schedule 23 of the contract itself, which was headed “Commercial sensitive contractual provisions”, and which was cited in the contract (§84.1) as the list of items that should be kept confidential by the parties.

A large quantity of the redactions sought by the Council, and which they appears to have spent over £200,000 fighting for (based on transactions to their lawyers in the Spending over £500 data), are not contained in this schedule.

Whilst it therefore appears the contract did follow good practice of agreeing from the outset any sections that could be subject to confidentiality, the Council did not follow this in actually applying redactions.

(3) Public interests in disclosure? The Tribunal evaluated each of the redactions sought by the council, and tested (a) whether confidentiality could be reasonably expected under the contract clause and schedules referring to this; and (b) whether there was, in any case, a public interest in disclosure.

Paragraphs 57 – 59 discuss the basis of public interest are worth quoting at length:

“§57. …Concerns have been expressed about the EfW technology chosen by the Council, which those against it say may involve harmful emissions and toxic waste left over from the scrubbing process. Planning concerns have been expressed about the height, mass and design of the plant and the increase in heavy road traffic which will be caused along with consequential air pollution. Although we are not in any position to assess the merits of these concerns, they are clearly genuine and not frivolous.

§58. The Contract itself is a PFI contract involving the expenditure of a great deal of public money over many years;… We can, we think, take judicial note of the fact that the PFI model is itself controversial, with legitimate concerns expressed about bad value for money, opacity and the tendency to load expenditure on future generations. Further, it is said that the structure of the Contract, by requiring the Council to pay for a certain amount of waste to be incinerated (the so-called “take or pay” arrangement) may have tied the Council in to supply a quantity of waste which is not viable in future and may have negative environmental effect of discouraging recycling…

§59. Given those considerations, in our view there was a significant public interest in the disclosure of the entire contract, in the interests both of transparency and accountability, ie the enable the public to be informed as to exactly what the Council had agreed on their behalf and its long-term consequences and to hold it properly to account, in particular through Council elections.”

On the issue of whether sections of the contract can be selectively disclosed, the Tribunal state:

§59. “… We make clear that we are not suggesting that the exercise is an ‘all or nothing’ one all we are doing is recognising that the provisions which the Council seeks to withhold are part of a greater interlocking whole and must inevitably be seen in that context.”

They also draw attention to the Local Government Transparency Code 2014 and the presumption in there of proactive disclosure – something I cover in this post.

They further draw attention to the fact that, when the original request was made in March 2015:

“§61…”the controversy was particularly intense and there was a danger that the whole Contract would have to be terminated at a cost, according to the Council of up to £100 million. At that stage, in our view, the Council’s obligation to act transparency was particularly strong as was the public interest in the exact position in relation to the compensation payable in so far as the Contract contained relevant provisions.”

They also argue that what matters is not how much of the text of a contract is in the public domain (the council argued that 95% of the text was public from the 1000+ pages of documents), but the substantives of that text. The tribunal state:

“In our view, the fact that the public authority has disclosed some information in the past cannot be relevant to the issue of whether they should have disclosed more.”

On the majority of individual redactions evaluated, the Tribunal find the public interest overwhelmingly supports publication. Paragraphs 74 – 216 go through the contract redaction-by-redaction, schedule by schedule, providing the reasoning for each decision. Where redactions are upheld, this is down to their information being included in the schedule of confidential information, and the Tribunal finding no substantial public interest in disclosure (though in some cases they still express puzzlement as to why redaction might be required).

(4) Impact on future procurement? In paragraph 72 the Tribunal consider arguments from the Council and UBB that disclosure would prejudice future procurements, and prevent the Council getting the best deal. They state:

“§72… We cannot accept such a case. Any potential contractor seeking to do business throughout the EU must be well aware of the duties of public authorities in relation to environmental information. We do not accept that they would (or should) complain or change their behaviour in response to a disclosure of information by the Council or any other public authority which was required by the EIR (or indeed FOIA)…”

(5) Intellectual property protection? The council invoked a separate argument for Schedule 33 which covers the sale of electricity generated from the plant. The mechanism by which this is to happen is fairly opaque, and appears to involve as-yet untested deals for ‘power off-take’. The Tribunal note that they were not “…given a very clear explanation of how this was all going to work…” (§212), but that “…Mr Mawdsley [(the council officer responsible)] [hoped] to sell the contents of Schedule 33 to other local authorities.”

The council argued that the Schedule was their IP, “based on copyright , database rights and the law relating to trade secrets.”.

The tribunal dismiss this, and in a damning paragraph note:

“§216. So far as the public interest is concerned, we agree with the Commissioner that, if relevant, it favours the disclosure of Schedule 33. The Council expressly accepts that there is a public interest in transparency about its plans to sell electricity for wider use; in our view it is a weighty public interest. On the other hand, we remain unclear as to how the Council’s or UBB’s negotiating position with third parties will be damaged. As to the wish to protect the confidentiality of legal and technical details that are novel in order to sell them on to other local authorities, even assuming that Mr Mawdsley is not being overoptimistic about the potential for the Council to make money in this way, we do not think that there is a particularly great public interest in the Council being able to commercially exploit a scheme which is apparently designed to avoid the normal regulatory regime.”

Overall

I’m not sure to what extend Tribunal decisions set precedents for others – but it seems to me there are strong arguments here that supports the positions that:

  • Where contracts are made that commit public money – the public have a right to know the detail of those contracts;
  • Contracts need to be treated as a whole, and redactions kept to a minimum;
  • Only redactions agreed in advance, and set out transparently in a clear schedule should be allowed;
  • A public party cannot claim intellectual property over a negotiated contract text;

Now that we have official access to the substantial majority of the Gloucestershire Incinerator contract, the challenge ahead is to work our what of the damage done by the Council Cabinet and contractors unaccountable actions over the last 18 months can be challenged, and undone. Access to documents is ultimately just one part of a wider open contracting journey.

(C) Other things of note

There are a few other elements of note I jotted down whilst reading through the judgement.

  • The claim made to council on 18th Feb 2015 that it could cost £60m – £100m to cancel the contract appears to be based on calculations from officers, and/or Ernst and Young which have not been published by the authority (perhaps another EIR or FOIA request will be needed here…). The Tribunal ruling refers in Paragraph 27 to a document from Ernst and Young presented to Cabinet in November 2015. However campaigners reading the unredacted contract cannot find the substantiation for the cancellation costs being so high before the facility is operational. It appears breakage before the plant is in operation could cost substantially less than the break-points once it is up and running – and possibly even lower than the £30m the Council has subsequently committed from reserves to cover shortfalls in the project.

  • Fighting disclosure has potentially cost the council much more than the hundreds of thousands spent on legal fees. Now that the contract model can be scrutinised, and alternatives explored, it may turn out that delays have led to potential cancellation of the contract

  • Mr Mawdsley, the council officer who has been pushing the Incinerator contract, comes in for criticism from the Tribunal. In paragraph 73 they note “Mr Peiro’s [UBB staff member] evidence was inevitably likely to be rather partisan, and, although he is an official and was giving evidence on behalf of a public authority, we are afraid we reached the view that Mr Mawdsley’s evidence on behalf of the Council was also rather partisan. We were surprised at the failure of each to attach any great importance to clause 84 and Schedule 23 or to the Transparency Code… We accept the submission of Mr West at para 78 of his final submissions that Mr Mawdsley’s evidence was ‘…so far-reaching as to be unconvincing, in particular in relation to matters such as Access Road Disruption Events”.

What next?

I’ve tried, at least in section A and B above to summarise rather than analyse. But, as I’m posting this on a personal blog, if I might here be forgiven a personal and partisan point…

If you are in Gloucestershire and concerned about this – the Tribunal made a good point: elections are a key mechanism to hold the Council to account – and all the Councillors who voted for the Incinerator on the basis of bad information, or secrets known only to Cabinet, are up for re-election on May 4th.

I only discovered this local case when my wife, Rachel, started getting involved in local Green Party conversations, and pointed out the work our Green County Councillor Sarah Lunnon was doing to push for open contracting, and to challenge the secrecy of the Incinerator contract. We were both astonished to see the County Council being so reckless with public resources and our local environment – and to see them so opposed to transparent and accountable politics.

It spurred me into reading as much as I could of the information that was available on the contract – but Rachel has taken it a step further – and is standing as Green Party candidate for Minchinhampton Division in the upcoming County Council elections.

There is ultimately the chance that we could change the balance of power in Gloucestershire – voting out the Tory administration that’s made these reckless decisions – and getting in a progressive coalition who can work to undo the damage. So – if you happen to be local to Minchinhampton, Thrupp or Chalford: please support Rachel. If you live elsewhere in Gloucestershire: make sure you get out and vote on May 4th, and use your vote for a progressive candidate who will commit to open contracting, and to stopping this one wasteful incinerator deal.

And if this is all too parochial… think about the contracts your local authority has signed you up to. Have you looked to see that they really work in the public interest?


[Note – typos in transcription from the original judgement are my own. I’m working from a printed copy, awaiting access to digital copy from the Tribunal website]