University of Plymouth PEARL https://pearl.plymouth.ac.uk Faculty of Arts and Humanities School of Society and Culture 2019-08-19 Secrecy, Privacy & Accountability: Challenges for Social Research Sheaff, M http://hdl.handle.net/10026.1/14427 All content in PEARL is protected by copyright law. Author manuscripts are made available in accordance with publisher policies. Please cite only the published version using the details provided on the item record or document. In the absence of an open licence (e.g. Creative Commons), permissions for further reuse of content should be sought from the publisher or author. 07.05.19 Secrecy, Privacy and Accountability: Challenges for Social Research Mike Sheaff 1 07.05.19 For Fiona, Tristan and Dan 2 07.05.19 CONTENTS Chapter One: Introduction Chapter Two: Public and Private: transparency and responsibility Chapter Three: A Right to Privacy and a Right to Know Chapter Four: Secrecy and ‘studying-up’ Chapter Five: Freedom of information and ‘studying-up’: a case study Chapter Six: Trust, transparency and privacy References Table 3.1: Privacy-related exemptions used by UK monitored bodies in 2005 and 2017 Figure 3.1: Numbers of FOIA statutory exemptions used by government departments 2005-2017 3 07.05.19 Chapter One: INTRODUCTION Abstract At a time of declining public trust in power-holders, wider concerns exist over both intrusions into personal privacy and excessive secrecy by those in authority. While privacy is frequently viewed positively, secrecy can generate suspicions of scandal or corruption. One difficulty is that concepts sometimes perceived as binary divides – secrecy versus transparency, or public versus private – possess more permeable and contested boundaries. The introductory chapter sets these issues in a context of organisational failures, using two examples involving child deaths to illustrate media and political approaches to framing responsibility. Referring to UK law on data protection and freedom of information, this introduction sets the scene for later chapters, introducing parallel tensions between privacy and transparency, and between personal responsibility and system failure. ‘Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency’ (Kennedy v The Charity Commission, 2014). Lord Mance’s remarks in the United Kingdom Supreme Court accompanied the dismissal of an application from a Times journalist for disclosure of details of a Charity Commission inquiry into the Mariam Appeal, established by a former member of parliament, George Galloway. In his judgment, Lord Mance included a 43-paragraph discussion on how the European Court of Human Rights’ case law applied Article 10 of the European Convention on Human Rights (guaranteeing freedom of expression) to rights to access to information. Apparently conflicting decisions were, he observed, ‘neither clear nor easy to reconcile’. These issues form the background to this book, which explores use of freedom of information legislation in social research, with a particular focus on the conflict this 4 07.05.19 can generate with rights to privacy and the protection of personal information. Difficulties in establishing clarity in jurisprudence reflect the intensely socially contested character of underlying issues. An important context is a tension between pervasive concerns about threats to privacy and simultaneous suspicions of concealment and deception by those in authority. As I write this, in late December 2018, there have been widespread media reports of the couple arrested at Gatwick airport just before Christmas on suspicion of flying a drone disrupting travel plans of thousands. Released without charge, their arrest had received prominent media attention, including a Mail on Sunday front-page on 23rd December displaying a photograph of them alongside the headline, ‘ARE THESE THE MORONS WHO RUINED CHRISTMAS?’ One of the couple later explained to a newspaper their feeling of being ‘violated’, adding, ‘our home has been searched and our privacy and identity completely exposed … We are deeply distressed, as are our family and friends, and we are receiving medical care.’ (Kelner, 2018). On 6th December the Daily Mail ran a front-page headline: ‘IS NOTHING PRIVATE ANYMORE?’ On the same day other headlines included: ‘HOW FACEBOOK SPIED ON YOU . AND YOUR PALS’ (Metro), ‘Facebook discussed cashing in on user data, emails show’ (The Guardian). The Daily Mail story ranged wider, but most were prompted by release of confidential emails between senior figures at Facebook by a House of Commons committee investigating ‘fake news’. Contested boundaries between media investigation and intrusion are contested have definitions of ‘public interest’ at their core. This contestation reflects its socially constructed character in a period of mistrust in authority. Such mistrust exists across many dimensions. Two days before these news stories, for the first time in modern British parliamentary history, government Ministers were held to be in contempt of parliament by the House of Commons for failing to publish the full Attorney General’s legal advice on the EU Withdrawal Agreement. The sharing and disclosure of information has long been a significant source of conflict, but this intensifies as developments in digital technology make its collection and storage so much easier. One particular feature of this landscape is explored in this book. This concerns the relationship between transparency and accountability on the one side, and secrecy and personal privacy on the other. 5 07.05.19 Specifically, it develops a discussion on opportunities for social research to use Freedom of Information Act (FOIA) requests as a method, and tensions this may generate with the protection of ‘personal information’ under the Data Protection Act.1 Through this, the boundary between ‘public information’ and ‘personal information’ becomes a contested area. It is a truism to describe our age as one of declining public trust in authority, fed by suspicion of scandal and corruption. Meanwhile, with dominant neoliberal discourses of responsibility and transparency our public reputations become commodities, marketable through the type of ‘impression management’ described in a very different time by Goffman (1959). Successful outcomes are what matter, as ‘personal branding’ keeps failures ‘back-stage’. But this is an unequal process. Becker used the term ‘hierarchy of credibility’ to describe circumstances where ‘members of the highest group have the right to define the way things really are’ (Becker, 1967: 241). For some, constructions of the ‘neoliberal self’, ‘transforms civil society, in that citizens are constituted as individuals whose identities must be defined in and through the marketplace, whose influence comes to pervade all social domains’ (Vallas and Cummins, 2015: 297). While there is a considerable research literature suggesting the ‘enterprising self’ model did not get internalized to the extent some predicted (see Watson, 2008), it nonetheless provides one influential form of discourse that can be, ‘received and interpreted in the particular and complex contexts that individuals move through in their everyday lives’ (Halford and Leonard, 2006: 699). In these contexts, an uncertain boundary can develop between the safeguarding of privacy and the protection of what Goffman called ‘dark secrets’ (Goffman, 1959). If privacy mutates into secrecy, generating further public mistrust, the cycle continues. A consequence has been populist attacks on elites accompanied by allegations of ‘fake news’ from the ‘Mainstream Media’. Secrecy by those in authority is matched by suspicion among the public: ‘they’re all the same’, ‘they’re corrupt’, and so on. And when things go wrong, as they will, the immediate response from those in charge all too often appears defensive and self-serving. No 1 The General Data Protection Regulations led to changes in the Data Protection Act in 2018. The law provides an important focus for this book, but it is not a law text, and as the principles underpinning the legislation remain the same, these changes to the DPA are not discussed. 6 07.05.19 doubt prompted by fear of media and public hostility, it merely compounds the problem. Failures are not scandals. Nor are errors a signal of corruption. While there can be many reasons for conflation of these categories, a route to disentangling them is to consider the close relationship between two issues: implications of the public/private boundary for personal privacy and public accountability; and constructions of explanations for failures in organisation in terms of people and systems. In exploring these themes, this book suggests a contribution by social research to these debates. Although the distinction between ‘public’ and ‘private’ has been described as, ‘a central and characteristic preoccupation of Western thought since antiquity’ (Weintraub, 1997: 1), it is a complex and not a straightforward binary division. Discussing alternative approaches, Weintraub notes how these, ‘reflect deeper differences in both theoretical and ideological commitments, in sociological assumptions, and/or in sociohistorical context. Partly for these reasons, debates about how to cut up the social world between public and private are rarely innocent analytical exercises, since they often carry powerful normative implications’ (Weintraub, 1997: 3). An underlying theme