Secrecy, Privacy and Accountability

Challenges for Social Research

Mike Sheaff

• Publisher: Palgrave Pivot
• Year: 2019
• Print ISBN: 9783030116859
• eBook ISBN: 9783030116866
• Topic: Social Sciences
• Subtopic: Business Ethics
• Index: Social Sciences

Public mistrust of those in authority and failings of public organisations frame disputes over attribution of responsibility between individuals and systems. Exemplified with examples, including the Aberfan disaster, the death of Baby P, and Mid Staffs Hospital, this book explores parallel conflicts over access to information and privacy.

The Freedom of Information Act (FOIA) allows access to information about public organisations but can be in conflict with the Data Protection Act, protecting personal information. Exploring the use of the FOIA as a research tool, Sheaff offers a unique contribution to the development of sociological research methods, and debates connected to privacy and secrecy in the information age.This book will provide sociologists and social scientists with a fresh perspective on contemporary issues of power and control.

© The Author(s) 2019

Mike SheaffSecrecy, Privacy and Accountabilityhttps://doi.org/10.1007/978-3-030-11686-6_1

Begin Abstract

1. Introduction

Mike Sheaff¹

(1)

School of Law, Criminology & Government, University of Plymouth, Plymouth, UK

Mike Sheaff

Email: [email protected]

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 a binary divide—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.

Keywords

TrustResponsibilityAccountabilityBlame

End Abstract

‘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 UK 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 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 the 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 a 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 23 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 6 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 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. 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 internalised 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: 658). 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 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 in this book, the decline of public trust in those holding positions of authority, is examined through a lens that focuses on a paradox in the neoliberal project, between ‘responsibilization’ and transparency. Support for both principles extends beyond neoliberalism, but more distinctive is the model of the ‘enterprising’ or ‘entrepreneurial self’. Public debate on how much other people should know of our actions and decisions is frequently cast in terms of surveillance, Big Data and the like, an issue I address, but my main interest is rather different. It concerns the transparency of actions performed, not by private citizens, but by public officials and those in authority, bringing questions about the boundary between the public and the private centre-stage.

As context for later discussion on the ‘responsible self’, I begin with two examples, both involving the deaths of young children:

There are no words strong enough to express Sun readers’ anger at the buck passing and blame-dodging over the horrific death of Baby P … Sun readers demand SACKINGS for all who share responsibility for allowing Baby P’s appalling death … Heads must roll. Nothing else will do. Sharon Shoesmith, the smug Haringey director of children’s services, must be fired. (The Sun, 13 November 2008)

‘How can she live with herself?’ – Mother of Down’s syndrome boy who died from sepsis slams ‘disgusting’ decision to let doctor convicted of his manslaughter to work again’. (Daily Mail, 14 August 2018)

Deaths of children are among the hardest of events to comprehend or explain. If it appears they could have been avoided, sadness and despair will easily turn to anger. The following account considers ways in which questions of personal errors, culpability and system failure were constructed, starting with Peter Connelly (Baby P) who died aged just seventeen months in August 2007 having suffered over fifty injuries. These were received during a period when he had regular contact with the National Health Service (NHS) and the local authority children’s department. Urging action to identify those holding organisational responsibility, David Cameron MP, then Leader of the Opposition, wrote in the London Evening Standard, ‘We’ve had a raft of excuses and not one apology. Everyone says they followed protocol to the letter and that the fault lies with some systemic failure. But we cannot allow the words “systemic failure” to absolve anyone of responsibility. Systems are made up of people and the buck has got to stop somewhere’ (quoted in Warner 2015: 31–32).

The theme was continued the following day, with a Daily Mail editorial lambasting professionals, managers and politicians whose, ‘only thought, it appears, is to insist that “correct procedures” were followed … Baby P’s case is a damning indictment of a bureaucratic system that could almost have been designed to ensure buck-passing … The guilty must be identified, heads must roll and the mistakes which led to Baby P’s entirely preventable death must never happen again. And Baby P? On his little coffin should be a plaque which bears the legend: ‘The correct procedures were followed.’’

Within a few weeks, the Secretary of State for Children, Schools and Families, Ed Balls MP, ordered the dismissal of the Haringey Director of Children’s Services (DCS) (Gammell 2008). This decision was later declared unlawful by the Court of Appeal in 2011, primarily on the grounds that ‘the Secretary of State did not afford Ms Shoesmith the opportunity to put her case’ (R (Shoesmith) v OFSTED and Others, 2011, EWCA Civ 642) . In forming this view, the Appeal Court noted these comments in a report by OFSTED into Haringey children’s services, ordered by Mr Balls MP in November 2008:

Our concern was how the system worked as a whole. We were involved in a wide ranging evidence-gathering exercise in order to try to reach an overall assessment of the way in which the different children’s services in Haringey were working, and working together. We were looking across the board at the quality of safeguarding practice at all levels of the relevant organisations. We were not seeking to make, or test, allegations against any particular individuals.

In his judgment, Lord Justice Maurice ...

Table of contents

• Cover
• Front Matter
• 1. Introduction
• 2. Public and Private: Transparency and Responsibility
• 3. A Right to Privacy and a Right to Know
• 4. Secrecy and ‘Studying-up’
• 5. FOIA and ‘Studying-up’: A Case Study
• 6. Trust, Transparency and Privacy
• Back Matter