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The following piece is taken from Dr Richard Danbury’s presentation at the ILPC’s Seminar From Archives to Database: Reflections on the History of Laws Governing Access to Information, held on 25th October 2018.

I have been asked to revisit the idea and political value of access to information laws. This is on the grounds that there has been a dramatic change in the way that governments handle information over the past 20 years or so, shifting from paper-based storage systems to data based information systems. The view is that this is not just a change in the means by which material is stored, but is more fundamental. Hence the need fundamentally rethink the laws which deal with the way to get hold of government information – freedom of information laws, or access to information laws (‘FOI’) – and hence hold the government to account.

What I’ll do is highlight one frequently overlooked rationale for FOI and access to information laws. This suggests that FOI should be seen as existing to promote the autonomy of individuals. The idea is to concentrate less on Bacon’s notion that knowledge is power, and more on the idea that information – and so knowledge – helps individuals flourish.

 

The democracy rationale & its problems

This amounts to a different way of conceiving FOI. Most frequently, FOI is justified by reference to democracy, particularly deliberative democracy. This sees FOI as a means by which information is leveraged out of the state, and that permits judgments to be made by citizens on questions relevant to democracy. One example, selected almost but not quite at random, of this rationale being made explicitly is the Council of Ministers Recommendation (2002). There are many others.

The democratic rationale for FOI is fine as far as it goes. But there are at least three problems with it. The first is that it is not true everywhere, the second that it is not always true, and the third is that it is not necessarily true. None of these problems are fundamental, in the sense of undermining the democratic argument for FOI. That remains a powerful and potent reason why we have FOI laws. However, they do illustrate that the democratic rationale is limited, and there is scope for exploring other explanations as to why FOI is valuable.

In more detail, the first criticism of the democracy argument for FOI is that that the democratic rationale is limited in its geographic and political scope. It can be criticised where transparency is seen as an alien, and perhaps ideological concept determined to extend Western power (as being explored by the ILPC’s Dr Rachel Adams).

The second is that the democratic rationale for FOI is limited in time. One doesn’t have to go too far back in history in European countries to find examples of how freedom of information was not seen as a self-evident good. For example, the King’s Intelligencer Sir Robert L’Estrange thought in the seventeenth century that public newspapers (which provided information to the public) gave the people ‘an itch… a licence to be meddling with government’.  In the eighteenth century, an early news publisher, Robert Raikes, was sent to prison for publishing in the Gloucester Journal an account of a debate in Parliament about the state of the national debt. Clearly, the view that popular participation in government was a good thing – even a moral or necessary thing – was not widespread, so obviously FOI laws would have had a limited conceptual basis.

The third limitation is related to the first:  that the democratic argument for FOI weakens the further a political system is from a strong deliberative, participatory democracy. Where strong deliberative democracy is not a prime political value, or part of a constitutional fabric, FOI seems to have a weaker mandate. Moreover, even where it does have a strong mandate, this may be confined to election time. This is on the grounds that people are not regularly involved in governance, and the strong argument for freedom of information only applies when they are. This rather cynical argument follows Rousseau’s jibe (as is commonly paraphrased) that the English are free for only one day every five years. Under this argument, the full gamut of information that might be permitted to be released under FOI is constrained, and the strongest mandate of information is for the release of those bits of information that are relevant to electoral decisions at election times. This may be quite limited.

So there is scope for developing and considering other rationales for FOI. The one proposed here is that it can be linked to, and justified with reference to individual autonomy. It should be emphasised that there are likely to be other rationales, too, for freedom of information law. As a scholar has said in relation to another area of information law, plurality is not necessarily miscellany.

 

An autonomy theory for information law

This account of autonomy as a justification for FOI (there are others) derives from a passage Benkler’s The Wealth of Networks. Benkler suggests, at pages 149-151, that information law can do one of two things in respect of autonomy.

First, information law can regulate the ability of some (notably the government) to control the options and preferences of others.  An example of this is the content regulation of the press, which can control the actions of others by controlling the information supplied to them. This could be considered negative control. There is another aspect to this too, of positive control. Benkler’s example of this would be the legislation under review in Planned Parenthood v Casey, namely requiring women seeking abortions to listen to lectures designed to dissuade them from doing so.

The second way that information law can affect autonomy is by regulating the ability of some to reduce the range and variety of options to people generally, or a set of people.  In doing so, such control reduces the number and impoverishes the variety of options open to people. An example of this, which Benkler doesn’t give, is regulating the content of education.

Take, as an extreme case, the Bantu Education Act 1953 in apartheid South Africa. This vastly restricted the material that could be taught to non-White students, and section 15(d) permitted the Minister to make regulations  ‘prescribing courses of training or instruction in Government Bantu schools’. Patently this thereby reduced the information about the variety of options, and the quality of the options, available to non-White South Africans. Such a move was deliberate. Hendrik Verwoerd, then Minister of Native Affairs, said in 1954: ‘There is no place for [the Bantu] in the European Community above the level of certain forms of labour… Until now he has been subjected to a school system which drew him away from his own community and misled him by showing him the green pastures of European society in which he was not allowed to graze’.

 

Autonomy theory and FOI

How does Benkler’s idea relate to FOI?  The answer, I hope is clear by now, is that FOI can be a means by which challenge can be made of the control of information flow, or the reduction of its range and variety. It can thereby be seen as a instrument, the use of which can help individuals make informed life choices, and thereby be more autonomous, and thereby be more likely to flourish.

How? In respect of control, FOI can be seen (and this is complementary to, but distinct from a democratic rationale, which might lead to similar conclusions) as a means by which control of information flow that thereby controlled people’s lives can be challenged. For example, FOI laws may provide the basis by which an individual could gain – otherwise controlled – information about contraception or abortion. In doing so, FOI can help lay the groundwork to help a person make informed choices about how to live their lives.

Another example might be drawn from the European Court of Human Rights (ECtHR) (Strasborg) case of Guerra v Italy. FOI, seen as a means of contributing to an individual’s autonomy, may remove state control of the supply of environmental information about a refuse or recycling plant, proximity to which may be harmful to people’s lives. When information is released, individuals can then be more fully autonomous in the choices they make as to where to live. Choices made on the basis of such information are more likely to help them flourish.

In respect of the second notion – that of range and variety of information – FOI can also assist in promoting individual’s autonomy. In this case it can do so by, for example, providing a means to remove control of access to maths textbooks, in apartheid South Africa. It can also provide access to restricted political or religious texts. The point here is, of course, that in accessing this, an individual can become more informed about the range and type of options that are available to them in forming their lives, and thereby being truly autonomous.

Aside from the extreme example, clearly, also, this Benklerian rationale can help provide access to a vast range of information held by the State that may affect an individual’s life. Indeed, it provides a rationale, distinct from the democratic rationale, for access to much of the information that is currently made accessible by current FOI laws.

A cautionary word is necessary, though: there are no doubt problems with Benkler’s autonomy rationale. One is that the assumption in Benkler’s work, which is explicit, is that: ‘self- governance for an individual consists in critical reflection and re-creation by making choices over the course of his life’. This is problematic. For one thing, is not entirely self-evident that this is the only way of conceiving self-governance. And another problem is that, surely, autonomous people may choose to be autonomous by not critically reflecting and re-creating their selves? People do not necessarily cease to be autonomous, and become Aldous Huxley’s Gammas, because they reject this view of autonomy.

 

Applying the theory of FOI as autonomy

Nevertheless, tying Benkler’s notion to FOI remains useful to resolve the problems identified earlier, and some others. Why?

First, this autonomy rationale for FOI provides a reason for bringing in FOI laws, or respecting them, in environments where what may be a Western notion of transparency is rejected.

Second, the autonomy rationale for FOI provides a reason for extending access to information in political systems that do not place a high regard – in theory or in practice – on deliberative democracy. It answers the possible cynical observation that FOI is really only required (or only strongly required) in election times, for example.

Third, and this has not been discussed so far, FOI as a means to autonomy provides a rationale for extending FOI access rights to information held by private actors. This is an area of contemporary dispute in the area of FOI laws: for, as Owen Fiss said in another context, ‘Why the State’? Information held by private actors can control and restrict autonomy as much as that held by the State –  in today’s society one thinks of the information held by Facebook and Twitter.

This is an important point. FOI seen this way provides a distinct, but powerful reason for facilitating access to information that may not otherwise be accessible, were FOI to be based on the notion of democracy. For example, it provides a rationale for forcing social media companies to divest themselves of information about the source of funding of adverts, for example, that operate to manipulate their users. It may also force them to divulge information about autonomy-manipulating algorithms.

Fourth, and this is more contentions, FOI as autonomy would help provide an alternate conception of the purpose of information law that unites the apparently disparate elements of information law. This disparate nature arises because one part of information law – FOI laws – seem predicated on releasing information, and only where there is a cogent argument that this should not happen is information retained. Other parts of information law – breach of confidence, data protection privacy, copyright to name a few – seem predicated on retaining information, and only where there is a cogent argument that this should not happen is information released.

There isn’t space enough to expand and defend this notion here, nor identify why it can cause problems. Indeed, I’m working on a paper that seeks to do so. But it can be reflected, perhaps, the criticism of the recent case of ABC v Telegraph. Here the Appellate judges took the latter position, seeing the retention of information as the presumption, and releasing it as the exception that needs to be justified. Much press criticism (and perhaps the judge at first instance) took the opposite position.

But in the meantime, it’s sufficient to suggest that this last advantage of seeing FOI through the lens of autonomy is that it may provide a unified field theory of information law. This may, ultimately, provide a more fertile and satisfying way of conceiving the trade offs and conflicts that occur within information law than those that arise from seeing FOI predominantly – or only – as a tool for democracy.

In short, seeing FOI as a psychological, rather than a political tool, is likely to be a useful exercise in re-framing.

 

Dr Richard Danbury

Associate Research Fellow, ILPC, IALS.

Associate Professor, De Montfort University, Leicester.