Vexatious What the public sector calls a troll?

Posted on February 26, 2015 by lawrence serewicz

On the web, people who are argumentative, rude, or even threatening are called trolls. People block them and shun them from contact. In extreme cases, they can be banned from the social media platforms. The same process occurs in the world of public sector customer service. Instead of being declared a troll, you are declared vexatious. When you are declared vexatious, you lose a number of rights. In particular, your right to complain is reduced and your right to contact others about your complaint is reduced.

Doing more with less means no one will suffer fools gladly?

In the public sector, customer service is changing. Over the past few years, the resolve to deal with “problem” customers has increased. In the past, the organisations might have suffered in relative silence. As they lacked the customer service experience, resources, or willingness to deal with these types of customers, they would have put up with them. They would have accepted them as the cost of doing business or simply refuse to deal with them until compelled to by law. Unless they became abusive or threatening, it was difficult for an organisation to turn them away.

Vexatious Litigant is a related issue.

The legal term “vexatious litigant” has existed for many years.[1] It describes a person who makes frivolous or malicious legal claims that do not pursue a legal issue beyond the ability to vex the other party by forcing them to endure a legal claim. The court can declare a litigant as vexatious and future related claims can be rejected or the applicant must seek permission from the court to apply.[2] What is new, though, is that this term and idea vexatious complainant has arrived in customer services. In the past, public sector organisations could not use this approach because it dealt with a particular area, the law, and it was about an application to the court. By contrast, public sector has a legal obligation to provide services and cannot refuse to deal with the applicant. Thus, one approach was to ignore the complainant. For many this is what happened.

The FOIA changed the balance but only for a time.

In 2000 the Freedom of Information Act gave the individual the power to compel an organisation to respond to requests for recorded information. Although it was not the same as dealing with complaints, it did force the public sector organisation to respond to written requests for information. Organisations had to accept that they would have to deal with applicants who had become unreasonable, persistent, and problematic. For the first seven years of the Act’s life, organisations put up with these type of applicants as they believed the law limited their options. In 2011, the First Tier Tribunal overturned the decision to consider an applicant vexatious. The decision of the First-tier Tribunal (General Regulatory Chamber) (Information Rights) dated 20 September 2011, following the hearing on 24 August 2011 under file reference EA/2011/0079. This was appealed by the ICO on behalf of the Devon County Council. The appeal was successful and the Upper Tier Tribunal Information Rights, handed down a ruling supporting the ICO’s appeal. The decision also set ou how “vexatious” requests could be understood.[3] If an organisation decided that the requests fit these categories, they could refuse to respond to it. The exemption also allows the organisation to refuse to accept an applicant’s request on the topic without needing to tell them.[4] Although an applicant can appeal to the ICO, however, success is unlikely.[5] If they appeal to the Upper Tier Tribunal, the stage after the ICO, successful appeals are rare. However, the FOIA ruling is important for another reason. It has provided the public sector a way to class complainants, as it did with requests, as vexatious. I would argue the ruling has changed the way public sector organisations provide customer service and has shifted the balance from the individual to the organisation.

Protect the staff and resources, but at what price?

The public sector in the UK, which has to do the same or more with a reduced budget, has sought way to limit those customers that take up the most time. These customers were often called “problem customers” or “serial complainers” who, for any number of reasons, take up the organisation’s time and resources. They are considered persistent, prolific, or vexatious applicants and organisations, and their customer services, need a way to deal with them. The preferred approach appears to be to declare them vexatious. Once declared vexatious, the organisation can refuse them services, reduce them or manage them in a specific way.[6]

On the surface, the new rules appear to be justified. Complaints and requests can cost a public sector organisation time and money. If the applicant has a grudge or is unreasonable, they can create problems for the organisation. The public purse needs to be protected and staff need to be protected from applicants who have a grudge, who make persistent unreasonable requests, and take up a larger amount of time than other applicants. To do this, organisations have created policies and procedures that help them identify and deal with vexatious complaints.

When we look beneath the surface, the policies give the organisation increased powers over the individual. In one light they can appear potentially undemocratic if not a violation of human rights. In another light, they can appear vindictive as the organisation can use it as a first resort or as a threat to deter and prevent complaints. If you are a vexatious complainant you can lose various rights. Here are the various rights than can be taken away.

The right to free expression: the right to complain.

Some organisations have policies that state if the complaint complains to other people or to another organisations about their complaint or at the same time as their complaint, they can be declared vexatious. Yet, under the Human Rights Act, every individual is allowed the right of free expression (Article 10 Right to free expression and information) except, it would appear, if you have a complaint. Then you lose that right. If you write to your MP about the organisation, they can take that as vexatious behaviour and refuse to deal with you.

Adopting a ‘scattergun’ approach: pursuing a complaint or complaints with the authority and, at the same time, with a Member of Parliament/ a Councillor/ the authority’s independent auditor/ the Standards Board/ local police/ solicitors/ the Ombudsman.

We do not want to be held to account in a way we do not manage

The vexatious complaint procedures will declare your complaint vexatious if you record any meeting or telephone call without informing them first. As I wrote here, people are turning to social media to hold organisations to account. Many people no longer trust the organisations, and their staff, to keep their word. When the trust breaks down, the complainants believe they can only get a fair hearing if they record the meetings or telephone calls. The Data Protection Act allows a person to record a telephone call or a meeting without consent if it is for their own personal use.[7] Once the organisation finds out that you have recorded the call, according to their policy they are free to declare you vexatious and refuse to deal with you except in writing, if at all.

The following, non-exhaustive list, are examples of the actions and behaviours of unreasonable and unreasonably persistent complainants which may cause the policy to be invoked

h) Electronically recording meetings and conversations without the prior knowledge and consent of the other persons involved

In many cases, organisations record or monitor the incoming telephone calls to protect their staff and to ensure customer service standards are being met. Yet, in some cases organisation can work on the principle that if it is not written down it did not happen. Such an approach, while well intentioned, puts the complainant at a disadvantage because the employee not the customer takes the notes. If the issue is contentious, the organisation might say “well our employee wrote it down that way and if it wasn’t written down it did not happen. What evidence do you have that it did happen as you say?”

Raise your voice and you’re on the Potentially Violent Persons Register (PVPR)

If the complainant use aggressive language over the telephone or in person the organisation can put you on their potentially violent persons register (PVPR). Thus, they go from having complained to their MP about the complaint process to being classed as a vexatious complainant. If they express their frustration in less than civil terms, they can be put on the PVPR and declared vexatious.

So whatever you do, try to avoid complaining. If you do complain, make sure you are polite and don’t complain to anyone else at the organisation. Always remember that you cannot contact your MP or anyone else about your complaint until the organisation has decided your complaint. If you fail to follow these rules, you will be declared vexatious. If you make an FOI request about it, you can be declared vexatious.

The organisations now have increased powers to protect themselves and manage the individual. Who is speaking up for the individual?

[1] Here is a short history of the term and the legislation around it. http://www.infotextmanuscripts.org/vexatiouslitigant/vex_lit_history.html (Accessed 22 February 2015)

[2] Here is a list of vexatious litigants held by the UK government. https://www.gov.uk/vexatious-litigants (Accessed 22 February 2015) This applies to England and Wales

[3] In Information Commissioner v s Devon County Council & Dransfield [2012] UKUT 440 (AAC), (28 January 2013) , Judge Wikeley recognised that the Upper Tribunal in Wise v The Information Commissioner GIA/1871/2011) had identified proportionality as the common theme underpinning section 14(1)and he made particular reference to its comment that ‘Inherent in the policy behind section 14(1) is the idea of proportionality. There must be an appropriate relationship between such matters as the information sought, the purpose of the request, and the time and other resources that would be needed to provide it.’

[4] Here is the guidance from ICO on dealing with requests under section 14 https://ico.org.uk/media/for-organisations/documents/1198/dealing-with-vexatious-requests.pdf (accessed 22 February 2015)

[5] If we examine the ICO’s database on decision notices, where they rule on whether the organisation applied an exemption or refused information correctly, we see the trend. In the last year, as defined by the ICO data base, there were 131 complaints on s.14. Of these 32 were upheld and 110 were refused. This means that of a 131 cases, the applicant succeeded 32 times while the organisation succeeded in 110 cases. The numbers do not match because there can be partial or overlapping complaints. The next highest, with a public interest test, was s.43 (Commercial Interest). Here there were 47 cases last year. 18 were upheld (siding with applicant) and 28 were refused (siding with the organisation). The highest use exemption was s40 (Personal Information). As there is no public interest test for this category it is an outlier. However, there were 230 requests 52 were upheld (for the applicant) and 189 were against)

[6] The policies are curiously consistent across many organisations and seem to have been copied or shared to save time. I did an internet search with this phrase and found it was the same in a dozen policies. “Electronically recording meetings and conversations without the prior knowledge and

consent of the other persons involved.”

[7] Under the Data Protection Act 1998 (DPA), Section 36, there is an exemption which states that “personal data are exempt from the Data Protection Principles and the provisions of Part II (individuals’ rights) and Part III (notification) of the Act where they are processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes).” This means that an individual can carry out covert recordings without being in breach of the DPA as long as the information is for their own personal and domestic use.

http://www.computertel.co.uk/wp-content/uploads/2013/05/Call-Recording-Law-in-the-UK-updated-2013.pdf

Tribunals and Courts may not like the covert recordings by individuals. However, they will accept that justice needs to be served and any evidence that proves a case needs to be considered. Following a number of tribunal cases that allowed for it to be submitted.

http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2014/04/11/employers-may-need-to-record-disciplinary-meetings.aspx (Accessed 22 February 2015) See also The Tribunal was clearly uneasy at admitting the evidence, but could not avoid it on the facts.

http://www.brodies.com/node/2011 (Accessed 22 February 2015)

Posted in bureaucracy, compliance, coruption, Uncategorized | Tagged , , , , , | 6 Comments

Who cares if records get lost?

Posted on February 1, 2015 by lawrence serewicz
Records life-cycle consisting three stages: cr...

Records life-cycle consisting three stages: creation, maintenance, and disposition of the record. FEA (2005). FEA Records Management Profile, Version 1.0. December 15, 2005. (Photo credit: Wikipedia)

When we hear about the lost records at the Home Office or other public sector organisations, many of us will not give it a second thought. We think that lost files or poor records management are facts of life. We just live with it as governments and organisations muddle through somehow and deliver their services. As long as services are being delivered and nothing is going obviously wrong, the public are content to ignore such internal matters. Even when these files contain something out of the ordinary, such as allegations of child sexual abuse by powerful people, many people have explained the lost or missing records as not something out of the ordinary. Records get lost on a regular basis or they get destroyed as part of the normal records management process. In local government, if the documents are not part of the official decision process, then there is no reason to keep them or provide them to the local Records Office. In the case of the child sexual abuse allegations, the file was small and to some commentators it was relatively unimportant as it only contained allegations. For others, the lost files are explained by the lack of space at the Home Office; which would explain why the files were destroyed. As The Telegraph cautioned that an undue focus on the lost records and the allegations could create an atmosphere conducive to a witch-hunt.[1] ?

Records? We lost those, sorry. Were they important?

At first glance, these views make sense.[2] They appear to explain what happened. It was as an unfortunate incident that happens with unsurprising regularity. Organisations struggle with records management as they lack space to manage the records. Records management is rarely given a high priority and few organisations approach it in a systematic way. For many employees, filing and managing records is neither glamorous nor a priority. For senior managers, and corporate directors, what matters is the organisation delivers its work. If a few files get lost, that is the cost of doing business. Middle managers have higher priority to deliver products and outcomes to their customers and clients.[3] Given that records management is a low priority, often handled as an afterthought or by junior employees, it would appear that lost records only become a concern when their content creates the necessity to find them. If the records had been something else, such as an invoice for an IT project, we would be less concerned. Whatever their priority, we know the police have begun to investigate the child sexual abuse allegations, so do we really need to be concerned with lost records or poor records management?

Without records you cannot hold power to account.

The short answer is yes. You need to be deeply concerned for three main reasons. The first reason is that lost records affect the organisations and the employees that manage the records. The second reason is that the flawed records management, which allows records to be lost, undermines democratic and historical accountability for a community and for the individual. We can see this problem in the Daniel Morgan murder investigation and the Shaw Report. The third reason is the lost records fail to dispel the possibility of a cover-up that destroys the faith in justice.

Archivists are haunted by lost records of potential political misdeeds

For archivists the case in Westminster should raise deep concerns. Although the testimony by those in charge of the records appeared to allay concern about the records being destroyed or edited on purpose, the case contains has a powerful shadow of the way that archives within a political organisation or the police can be threatened. The case will remind archivists of something that haunts the profession. All archivists, and most records managers, will have heard of Heiner Affair and the Nordlinger Affair in Australia.[4] These are Australian cases where public documents were shredded to hide evidence of abuse of young people within the care of the government. The case revealed that politicians pressured records managers and archivists to remove documents and destroy documents to avoid accountability. The same is likely to have occurred in the United Kingdom. The state of records keeping associated with children in care shows a shocking disregard for accountability. The Home Office case is the highest profile example of “lost records”, but it is not the only one nor will it be the last. However, the problem is not new. The problem of lost records is common in local government.[5] Many organisations will cover up their malfeasance through such excuses as lost records. We have seen court cases collapse because of poor records management. The Daniel Morgan murder trial is only one of many cases where poor records management has caused a case to collapse.[6] Even more recently the claim that records were deleted in the phone hacking trial with News Corporation shows the way that records will be deleted. The problems with organisational records management reveal a deeper political problem.

Records create democratic accountability

Without records it is difficult to hold the powerful to account. We only need to consider how Magna Carta, the UK government’s oldest piece of legislation, remains a touchstone as it contains the country’s fundamental political contract. The same role is played by historic town and city charters. Even though we are not interested in historical artefacts they do show how records are used to hold the powerful to account. If the powerful contravene the promises within these documents or the promise that the document expresses, then they can be held to account. However, it is a truism that political power resists the efforts to control or constrain it. The politically powerful seek to manage the ways they are held to account so they can control it or influence it.[7] They will use their power and position, and the resources it provides, to protect themselves and their office. If records create an account against which they can be judged, they will delete, discredit, or destroy it. Even if they welcome it because of political necessity, they will seek to influence it to reflect their interests or the interests of their office. We know from history that to avoid accountability, powerful people and organisations will destroy records that show their faults or criminality.[8] In extreme situations, powerful people will try to influence the records management process or the archival process by putting pressure on archivists and records managers. Such outcomes are not reserved to tyrannies or totalitarian regimes, they also occur in democracies.[9] From the smallest parish council to Parliament, no government is immune from this behaviour. Even without the extreme example of the Heiner affair, the basic problem is that when records are unavailable or inaccessible, democratic accountability is thwarted. The individual cannot hold their government or government representative to account. We have seen in history how repressive regimes regularly destroy records and seek to edit history to avoid accountability. In extreme situation they attempt to edit their opponents or misdeeds from history.[10] The only criminal sanction in the Enron scandal occurred because of the large scale destruction of records to avoid accountability.[11] The pressure to edit records and edit history is something that concerns all records managers and archivists in large part because it makes the complicit in a cover up.

The problem of cover ups

The lost records and the failure to retain documents are issues that go to the core of the archival field and raise deep questions about political accountability, archival independence, and archivist professional ethics and standards. These issues are now more prominent today as social media makes the public and organisations aware of how events are captured and recorded. In addition to public archives and records, which create institutional memories to hold governments and organisations to account, we now have personal records and memories to create an alternative to challenge the official record. We have learned from the Hillsborough tragedy that the Police lied about the events, attempted to cover up their lies, and the Sun proclaimed the official record by claiming it was the truth. They acted in concert to create public story, an official record, to explain the event and shift blame to the Liverpool fans. Only through determined families and individuals, who wanted truth and, were the police and the press brought to account. Without the Hillsborough Inquiry’s records, the families would be denied a chance at justice.

Rotherham: an outlier or a harbinger?

In the Rotherham scandal, records disappeared from the organisation. Reports were suppressed and kept from being recorded in the Council’s formal decision process, which meant that they were not retained.[12] If the records were managed appropriately, they would have been either submitted to Members as part of the public record or they would have been retained as evidence of officer decisions. However, in both cases, they were not included so that they could not be retained for historical accountability. The officers avoided organisational scrutiny and, for the most part, historical scrutiny. One witness, in a sworn statement, has alleged that records of the scale of the sexual abuse, which would have shown the council’s and the police’s short comings, were removed from a locked filing cabinet within a secure Council office.[13] In the Rotherham case, like the Hillsborough case, other organisations and people retained enough of the records to show the files that existed and were able to demonstrate that the organisation “knew” of them. If the records are not kept or are destroyed or “lost”, it is much more difficult, if not impossible, to obtain justice.

Is asking for good records management asking for a witch hunt?

When the media, like the Telegraph raise concerns about the possibility of a witch hunt, they may be taking a myopic view.[14] As such, it can make it appear that the concern for poor record keeping around child abuse allegations is only a concern for records manager and archivists. The records relate to someone’s life. Moreover, the UK’s less honourable history is demonstrated in the way it has handled records of the most vulnerable: looked after children.[15] The state becomes their parents by default. When the state loses their records or destroys their records, it takes away their childhood memories. It takes away their voice. It takes away their ability to seek justice. However, some governments, perhaps ones more sensitive to the problem of historical injustice at the hands of those who had power over them, have listened to their citizens and taken steps to right historical wrongs. In the UK, Scotland has done this with the Shaw report.

What is the Shaw Report?

The Shaw Report refers to Scotland’s Historical Abuse Systemic Review: Residential Schools and Children’s Homes in Scotland 1950 to 1995.[16] Tom Shaw led the work and wrote the report. The report catalogued the institutional abuses children and young people suffered over decades in Scotland’s Residential Schools and Children’s homes. It revealed the poor record keeping by the homes and the local government that denied the adult survivors a chance to recover their childhood memories. They were denied the records children (and adults) take for granted.

How Scotland used its devolved powers to protect the vulnerable

Scotland used devolved powers to create the report and change its records management system. England has refused to do this. It is not surprising given the scale of abuse and the way the establishment treated looked after children. It is time that England reformed its records management system to deliver the opportunity for justice to its most vulnerable. It needs to give its children a chance to retain their childhood memories.[17]

Why does Parliament resist the need for good records management?

When we see the lost files in this context, we see the deeper problem. This is not a problem of Westminister mandarins. This is not a problem of selective record keeping. This is not a problem of competing institutional priorities. This is a problem of justice. Justice is the core of any decent political society. If justice is unavailable to victims, can any government consider itself decent or civilized? Parliament’s refusal to change its approach to records management raises questions about its commitment to justice. It suggests an institutional resistance to being held to account by the public let alone the victims. Parliament is accountable only to itself. When the issue is framed as “a few lost records”, it suggests an inability to see what the problem represents. The question gets to the heart of the British society. We either have a decent political society where we are equal and accountable before the law or we have a society where the strong can do as they will and the weak must suffer because they lack the power to defend themselves. Democratic accountability starts with records management. The desire to avoid accountability seems to be a common theme rather than an unintended outcome. If Britain is to address the issue of historical child abuse and child sexual exploitation, it must get its records in order. If Westminster will not prioritize records management how can it claim to have a democratically accountable government? To put it directly, it is time that England had its equivalent of a Shaw report. Scotland has done it so why can’t England?

 

[1] http://www.telegraph.co.uk/news/uknews/law-and-order/10956642/Witch-hunts-thrive-in-a-climate-of-fear.html

[2] What most people will not know, though, is that in 1952 (5 September 1952) the Home Office issued a circular HO 200/52 that stated “Indecent practices in approved schools or boys and criminal offences involving the interests of boys or girls detained in approved schools”. Thus we find evidence that records should be kept of allegations and such matters should be reported to the police. (see paragraph 7). The next questions are whether such allegations were reported and what happened to the records?

[3] A priority can be used to justify any course of action either to avoid something or to do it. The most well-known is the priority of national security. All organisations have these priorities and are able to refer to them as needed. For example, the police will refer to their priority to fight crime or maintain order. A local council might say that social services are the priority. You might see this referred to as a “duty of care” such as a duty of care to ensure the health and safety of employees. Curiously, when an accident occurs, the organisation will do all that it can to either get out of this duty of care, strict view of the issue, or demonstrate that it was taking all the minimum steps necessary but could not do more because of other priorities. In rare occasions, an organisation might look at all of its priorities and consider whether it has chosen the right ones. Perhaps, you might ask your local councillor or your MP or the government department what their priorities are and how they reconcile them when they conflict.

[4] http://www.mybestdocs.com/hurley-c-lucas-keynote0703.htm   (accessed 19 January 2014)

[5] Consider that in 1952 the Home Office issued instructions that allegations were to be reported to the police. Many did not and fewer recorded heir abuse as many have no records relating to any abuse or allegations of abuse.  http://www.bbc.co.uk/news/magazine-28212710 (accessed 19 January)

[6] See reference to cases in Wales. Cite the reference to Daniel Morgan found elsewhere in a previous blog.

[7] See for example the different types of holding to account. http://webarchive.nationalarchives.gov.uk/20081023163307/http://www.hm-treasury.gov.uk/d/38.pdf (accessed 19 January 2015)

3.5 It is helpful to consider further what the notion of accountability entails. One analysis 1  has split it into four aspects:

giving an explanation – through which the main stakeholders (for example Parliament) are advised about what is happening, perhaps through an annual report, outlining performance and activity;

providing further information – where those accountable may be asked to account further, perhaps by providing information (e.g. to a select committee) on performance, beyond accounts already given;

reviewing and, if necessary, revising – where those accountable respond by examining performance, systems or practices, and if necessary, making changes to meet the expectations of stakeholders; and

granting redress or imposing sanctions – if a mechanism to impose sanctions exists, stakeholders might enforce their rights on those accountable to effect changes.

1 Barbaris P (1998) ‘The New Public Management and a New Accountability’ in Public Administration, Autumn. Also Neale A and Anderson B (2000) ‘Performance Reporting for Accountability Purposes – Lessons, Issues, Futures’ paper at International Public Management Workshop, Wellington, New Zealand

[8] In Hannah Arendt book Eichmann in Jerusalem, we see that in the final year of the war, the Nazis tried to destroy records of the Final Solution in the belief they could avoid or minimize the accountability.

[9] We can see this in the way Wikipedia accounts are edited by powerful people through their proxies.

[10] In extreme situations people are banished from history. The Damnatio memoriae refers to this process. http://en.wikipedia.org/wiki/Damnatio_memoriae

[11] The case against the accounting firm Arthur Andersen as a result of shredding documents that revealed Enron’s faulty accounting practices was ultimately overturned.  http://www.nytimes.com/2005/05/31/business/31wire-andersen.html?pagewanted=all&_r=0 (accessed 19 January 2015). The case was overturned because the burden of proof to determine criminal intent was too low. However, it still shows that it was records management and the destruction of records that was the turning point.

[12] Unless a document held by an officer is entered into the official decision making process either through a Cabinet meeting or through an official decision, it will not be retained in the archives.

[13] The Home Office researcher at Rotherham explains what happened. http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/child-sexual-exploitation-and-the-response-to-localised-grooming-followup/written/12361.pdf (accessed 19 January 2015)

[14] A less charitable view would be to suggest that they have an institutional interest in dismissing the story as they work within a political framework and, like the Sun, they have a relationship with those in power which they wish to nurture. However, such an uncharitable view would need someone else to investigate it.

[15] Other records capture the UK’s history such as the Kenya torture records and many of these were destroyed. http://www.theguardian.com/uk/2012/apr/18/britain-destroyed-records-colonial-crimes

[16] http://www.scotland.gov.uk/Publications/2007/11/20104729/0 (accessed 19 January 20150

[17] http://www.nas.gov.uk/recordKeeping/legislationReview.asp (accessed 19 January 2015)

The record keeping review led to the change in the law in Scotland. Public Records (Scotland) Act 2011 http://www.nas.gov.uk/recordKeeping/publicRecordsBillNews.asp (accessed 19 January 2015)

A model system was developed that all Scottish public authorities had to follow to comply with the public records act (Scotland) 2011. http://www.nas.gov.uk/recordKeeping/PRSA/modelPlan.asp

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Posted in bureaucracy | Tagged , , , , , | 8 Comments

January Break see you in February

Posted on January 4, 2015 by lawrence serewicz

Dear Subscribers,

I hope you had an excellent 2014 and I wish you a wonderful 2015. I am letting you know that I am taking a break from blogging until February. I have been writing three blogs over the past year and I wanted to pause and recharge. I thank you for reading the blog over the past year and I hope you will continue to follow it.

Look for future posts in February.

See you then.

All the best,

Lawrence

Posted in Uncategorized | Comments Off on January Break see you in February

Why do bureaucracies delay disclosing information: the Case of Daniel Morgan Independent Panel

Posted on December 30, 2014 by lawrence serewicz
English: Administrative burden in Bucharest (R...

English: Administrative burden in Bucharest (Rumania) (Photo credit: Wikipedia)

According to a recent report, the Metropolitan Police have delayed the work of the Daniel Morgan Independent Panel.[1] The article says the delay is caused by the lack of an agreed protocol with the Panel for the transfer of documents and records. The police want to protect the identities of two informants. The claim is reasonable and respectable. Without informants, the police would find it difficult, if not impossible, to solve cases. If an informant cannot be protected, then few would volunteer information. However, there are other reasons why a bureaucracy would delay disclosing information. Christopher Hood has explored many of these and the efforts taken to resist them in his article “What happens when transparency meets blame avoidance?”

All organisations are bureaucracies which means they are secretive by default.

All large organisations are bureaucracies and they will have their own reasons to keep information private.  However, by their nature, bureaucracies are secretive. They keep secrets for operational reasons (to keep sensitive information from competitors). They keep secrets for organisational reasons (to keep information secret until it is needed such as a product launch).[2] In this case, though, the veil of secrecy is being removed. The Metropolitan Police and the other organisations have agreed, in principle, to disclose information. However, they have continued to delay that disclosure. They have provided a public reason, the concern over their informants, but there are other, private reasons that need to be considered.

The list of reasons set out below is not exhaustive. They capture the main ones that justify keeping information secret. These are the reasons that have to be overcome when they decide to disclose information. Organisations may have to disclose information because of legislation, like the Freedom of Information Act or the Data Protection Act, or voluntarily such as under the terms of the inquiry. The reasons also show why it is so difficult for organisations to be transparent.

Institutional Embarrassment. The case is embarrassing to the organisation. Despite six investigations and over 25 million pounds, the police have not been able to bring Daniel Morgan’s murder to justice. The Independent Panel is set up to look at these failures. The organisation will know its own failures and now the panel, and the public, will know them as well in detail. It is one thing to be accused of incompetence and failure; it is another thing to have it demonstrated publicly.

Internal politics. The Metropolitan Police are a large organisation and like all large organisations, they have their own internal politics. Who is in charge of disclosing the information will have the power to harm their political opponents within the force. What is disclosed will have a direct impact on the status and reputation of a number of officers current and former. To the extent that there are those pushing for disclosure, they will face resistance from those who have something to lose, such as a promotion or a status built on that reputation. Someone has to take the fall and like penguins on an ice raft, they are jostling for place to avoid being pushed off.

Ego. In any organisation, managers and senior managers will have tied their egos to decisions or positions. They will defend those positions so that they do not lose face. To that end, they use the organisation to prevent or delay disclosing anything that will hurt their ego. To understand this we need to look at the officers who have sign off on the documents and which officers who have been consulted on the decision.

Waiting Game. Bureaucrats know that if they wait long enough, the problem will go away. The senior managers or managers wait or delay so the applicant loses interest. The waiting game is particularly useful when there is no regulator to give some urgency or force the organisation to answer. Even then, the organisation can use this to their advantage. When the applicant has to pester the organisation, they seem vexatious. The organisation has delayed but they rarely admit that to a regulator. Instead, they point to the applicant who has unreasonable and vexatious behaviour. An institution can wait; the person cannot.

Code of silence.[3] The need for secrecy can have formal or legitimate reasons and it can have informal and illegitimate reasons. A code of silence is an example of the latter. In a police service, as in any regulatory agency, everyone has a skeleton, a dodgy decision, a dubious arrest, or complicit in a decisions that flouted the law. No one speaks up because they do not want their own flaws to be revealed.[4] A related issue is that police may ignore small infractions, as part of the job, but object to financial gain.[5]

Reputation management.[6] All organisations try to protect their reputation. If they are in the private sector, they do this to survive. In the public sector, they do this to make it easier to work.  Good customer service and a good reputation take less effort than dealing with complaints, investigations, and regulatory oversight. If the documents and records threaten that reputation, an organisation will want to disclose them in a way that does the least damage.

Fear of defamation. In organisations, employees often write comments in emails and notes that they never expect anyone outside the organisation to read them. In other cases, they may use slang some of which may be particularly derogatory or disrespectful.[7] In particular, they never expect the subject of their comments to read them let alone know about them. When disclosure is threatened, the employees start to panic.[8] They know they have written comments that will embarrass them. Even if they are no longer employees, the organisation will know that the comments are inappropriate and fear the consequences. They will attempt to cover it up. The best response is to apologize for it and explain that they will remind staff that such terms are not right. However, trying to cover it up is usually the immediate reaction because it protects the employee and the organisation. (See above Ego and Reputation Management)

The other organisations in the inquiry will have similar reasons when it decides to show documents and records to the panel. The organisations know that the panel has no power to compel disclosure. This may create the perverse incentive to withhold more and show less. Whatever happens, the panel will have to find a way to overcome these barriers if they are to succeed.

=====

[1] http://www.exaronews.com/articles/5426/daniel-morgan-murder-scotland-yard-obstructs-panel-inquiry There are 7 organisations, including the Metropolitan Police, due to provide information to the Panel.

“b) obtain and examine all relevant documentation from all relevant bodies,

governmental and non-governmental alike, including but not limited to

papers held by;

 The Metropolitan Police;

 The Hampshire Police;

 The Crown Prosecution Service and the Attorney General’s Office;

 The Police Complaints Authority (as it was then);

 The Independent Police Complaints Commission;

 Southwark Coroner’s Court;

 The Home Office.”

 

The panel will also accept information from and interview relevant individual

“c) interview and receive relevant information from individuals who are willing

to provide that information”;

See the terms of reference for the panel. http://data.parliament.uk/DepositedPapers/Files/DEP2013-0776/DANIEL_MORGAN_-_FINAL_TERMS_OF_REFERENCE_-_080513.pdf

 

[2] For the classic description of bureaucratic secrecy see Max Weber http://harpers.org/blog/2009/07/weber-official-secrets-and-bureaucratic-warfare/ See also Secrecy in American Bureaucracy Francis E. Rourke Political Science Quarterly Vol. 72, No. 4 (Dec., 1957), pp. 540-564 http://www.jstor.org/stable/2146193 (registration required)

[3] https://en.wikipedia.org/wiki/Blue_Code_of_Silence

[4] The police are in a position similar to the military because their lives are in their colleagues hands. If you are seen as unreliable or worse a “snitch”, you may find your colleagues desert you when you are in trouble. The Serpico case in New York is an example of what can happen. The circumstances of the case suggested that his fellow officers set him up to be murdered and none of them called for medical assistance when he was shot. https://en.wikipedia.org/wiki/Frank_Serpico

[5] See http://oro.open.ac.uk/4553/ Westmarland, Louise (2005). Police ethics and integrity: breaking the blue code of silence. Policing and Society, 15(2) pp. 145–165.

[6] See for example https://en.wikipedia.org/wiki/Reputation_management See also Reputation Warfare https://hbr.org/2010/12/reputation-warfare/ar/1

[7] In this article, the authors left out some of the nastier slang for fear of encouraging others to use it.

“The largest group is simple obscenity and derogatory name-calling. We include many such terms, but would refrain from encouraging their use and, as such, withhold those intended to simply offend.”

Terms like FLK (Funny Looking Kid) or NFN (Normal for Norfolk) were often used by organisations especially before the Data Protection Act allowed people to find out what was being said about them and the organisations had to explain the acronyms. http://interesting-articles.wikispaces.com/file/view/Medical+Slang+in+British+Hospitals.pdf

[8] We can see this when organisations had to explain what they wrote about clients or patients after the Data Protection Act (DPA) allowed people to access their personal data. If you want to find out, all you need to do is pay £10 and write a letter explaining that you want the organisation to provide your personal data and enough information to help them identify and locate your personal data. For further advice see the Information Commissioner’s website https://ico.org.uk/for-organisations/guide-to-data-protection/principle-6-rights/subject-access-request/ If there are no derogatory statements and no questionable remarks by anyone anywhere, over a 27 year period, it would be quite an achievement as the profession, unlike the medical profession, is not known for its pastoral care of individuals. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2312388/ However, the applicants never know until they put in a SAR and pay their £10 fee.

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The lies organisations tell themselves: the case of Rotherham Council

Posted on December 15, 2014 by lawrence serewicz
"Portrait of the Writer Fyodor Dostoyevsk...

“Portrait of the Writer Fyodor Dostoyevsky”, Oil on canvas. The Tretyakov Gallery, Moscow. (Photo credit: Wikipedia)

Every man has some [truths] which he would not tell to everyone, but only to his friends. He has others which he would not reveal even to his friends, but only to himself, and that in secret. But finally there are still others which a man is even afraid to tell himself.
~Fyodor Dostoevsky

Rotherham Borough Council has a problem. The public will know the most obvious problem. They failed to deal effectively with child sexual exploitation. What they will know less well is the culture that allowed these problems to go untreated. Few, if any, outside the council will know the institutional problems that remain. The problems that remain come from its corporate culture. The problem is the lie the organisation tells itself about itself. All organisations have blind spots for their own weaknesses. Good leaders look for these to either fix them or at least keep them from becoming a larger problem. An organisation cannot be perfect in all things, so it tries to get most things right. The most important thing to get right is the culture. Once you have a robust culture, then any weakness can be mitigated. Why? A robust culture is one where you avoid surprises and work through the problems together. Rotherham, though, does not realize that it continues to lie to itself as an organisation.
A culture that refuses to ask questions, is a culture waiting to collapse
As I wrote previously, Rotherham’s historical problems were the result of a toxic culture within the police and the council. Their culture kept them from understanding the size and the scale of the child sexual exploitation scandal. In the council, no one was prepared or able to ask the questions about the problem’s size, scale, and scope. When someone took a focused interest, we see fierce resistance from within the council and within the police. It is against that background that Rotherham Council promised to improve. The council promised to learn from the mistakes. They would avoid the culture that was unwilling and unable to ask the awkward questions and deal with the difficult subjects. The old council had suppressed questions and the new council would encourage professional curiosity. The Jay report showed that officers were discouraged from asking questions and thinking. When people did ask questions, they were either dismissed or suppressed. The questions that would force the organisations to “think” and take responsibility to understand the problem never emerged. Rotherham lacked a curiosity culture. Instead of professional curiosity, senior officers and Members focused on defending the council’s reputation. The senior officers modelled this behaviour and junior officers followed it.
A culture change was promised, but what has been delivered?
We were promised that the culture has changed. The old culture is gone and a new culture exists. This is the lie that Rotherham Council tells itself. In his response to the Jay report, the Chief Executive told the council that
“Professional curiosity is encouraged and this supports staff to raise issues and know they will be taken seriously.”
At the time, I believed that statement. I accepted it at face value. I wrote that it was damning that the Chief Executive had to reassure the public and councillors on this topic. I suggested that a wider curiosity culture needed to be developed. What I did not realize is that the claim was meaningless. The claim is not what it appears to mean. If you believe that Rotherham now encourages officers to ask questions, has a candid culture, and officers actively challenge and question assumptions you would be mistaken.

What evidence was there to back up their claim?
I made an FOIA request for the evidence behind the Chief Executive’s statement. A public statement should have evidence to support it. Otherwise, it is an empty assertion, a wish, and not a concrete reality. What I found was the council could not find a report, evidence, or document that demonstrates professional curiosity is encouraged. I was told that to find this information would exceed the fees limit. Even though the Chief Executive must have had a policy or a procedure in mind when he made the public statement, nothing was to hand. Instead, it would take over 18 hours of officer work to find the information.

Whistleblowing is not a symptom of professional curiosity
What the council was able to give, to demonstrate that professional curiosity is encouraged, was their whistle blower policy , a staff suggestion scheme, and a reporting system. The gap between professional curiosity that would ask questions of the council and challenge assumptions and what the council has described is vast. I would suggest that the exchange indicates the culture has not changed. It is another question whether it is changing, but based on the evidence provided, it does not appear to be changing. What is needed is a candid culture or a curiosity culture where people can raise questions without fear. If the council wants to learn from its past, it needs to create a process where bad news (critical news) can be reported as part of the normal business. If bad news is only seen with a Whistleblowing policy, then there is a problem. Basic questions of poor performance and problems within a service should not require a whistle blower. These should be something the organisation can discuss. A staff suggestion scheme is a small step in the right direction, but it is not a forum to discuss bad or critical news. Moreover, it does not indicate that bad news is welcomed. Where does the council discuss bad news? Rotherham has lied to itself if it believes it encourages professional curiosity with a staff suggestion scheme or a whistle blower policy.

The lies we tell ourselves are the worst
If Rotherham Council continues to lie to itself, how can it claim to have changed? It will change it has changed senior officers, but is it changing gits culture? Until it recognises that it does not yet encourage professional curiosity, how can it say it will deal effectively with the problems that emerge? It is time for Rotherham Council to tell itself the truth. Until it does, it will store up problems for the future.

What are some ways to develop professional curiosity?
If you organisation tends to lie to itself, you can take some steps to avoid these problems.
1. Develop a culture that encourages critical upwards communication. As I mentioned Denis Tourish’s work is good in this area.
2. Develop a candid culture, where people are willing and able to speak up because there are safe places to do this.
3. Encourage staff curiosity by making the full extended management team, not just one service, responsible for the issue. When many people see they have a stake in the issue, they can offer solutions and insights without the bias of those in the service
4. Accept that without bad news there is no chance to improve. If your service or your organisation is always reporting green key performance indicators then it is not challenging itself. The danger is that the service or the organisation is too focused on its reputation and not on the outcomes it is delivering. If it is not challenging itself, it will never deliver the promised results. Instead, it will make excuses.

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Is an organisation corrupt or just ill?

Posted on October 31, 2014 by lawrence serewicz
United Nations World Health Organisation logo

United Nations World Health Organisation logo (Photo credit: Wikipedia)

When we hear about a corrupt organisation we often are surprised and outraged. What we fail to consider is that all organisations are never completely healthy. They are all ill to some extent. They will have practices that are dubious, decisions that are suspect, and staff that are problematic. Leaders decide how much toxicity can be tolerated before it becomes a problem.[1] The leader has to manage the organisation’s health. When the organisation becomes unwell, “rogue employees” emerge or “rotten apples” start to appear, the leader needs to act. As the organisation’s most visible symbol, the leader has the largest role in managing its health.[2] When organisations become unwell, though, it is not enough to look at the top. We have to look inside the organisation.

What are signs of an organisation that has become ill?

The symptoms can vary. In some cases, it can be a decline in profits or productivity. In the public sector sickness absence rates are a good measure. When staff are physically ill, especially stress related illnesses; the organisation is likely to be ill. Many organisations focus on the employee and ignore the way the organisation can make the employees ill. Such an approach only deals with the problem’s symptoms. The employees may be stressed because responsibility and accountability are not connected. The tasks they perform may not be linked to the outcomes the organisation claims to deliver.[3] Also there can be a gap between what the organisation tells the public or does in public and what happens inside it.

To avoid illnesses, listen to the street.

Inside each organisation, people tell stories. These stories will indicate the health of the organisation’s culture. The middle managers tell stories to translate the corporate strategy into frontline practice.[5] How they tell those stories will create or cure an organisational illness. If middle managers are unwilling or unable to tell senior managers about frontline constraints, it creates a problem. In the same way, if they tell staff to accept toxic behaviour by another employee, it discourages people from raising issues. These stores are important and senior managers need to listen to them.

What stories do you tell each other at work?

Senior managers need to understand the stories that they tell about the organisation because that sets the tone.[6] If a senior manager tells their junior direct reports that they were reamed out for a misplaced comma or that they were raked over the coals for bad press, it will tell the junior employees and managers something about the company. The stories give them their cues and set the culture or expectations. The frontline staff will take their cues from that behaviour and those stories. The same process works the other way. If junior employees are telling stories about a problem, then senior managers need to listen.

What is compromising your organisation’s immune system?

For an organisation to become ill, its immune system must be compromised either its culture or its structure. If the organisational structure is compromised, then corruption can take root and then flourish. If the board of directors becomes blinded by the profits and success, they will begin to overlook problems and fail to ask searching questions. Why ask questions about something that is making you rich and appears to be working? The Board needs to remain vigilant about whether they are being denied information that would allow them to curtail the excess. In this area, transparency and accountability can help. However, there needs to be more than transparency. There has to be a will to act on what is seen. When organisational checks are undermined (over time) the organisation starts to weaken, become vulnerable to illness.

Are you seeking out people who know what is going wrong?

There are people who know what is going wrong. It is these people that the leader needs to find and listen to or have his trusted subordinates listen to so that they can keep their ear on the street.[7] If they are not ready to listen to those who are making uncomfortable points, what kind of leadership does that suggest? This is more than creating critical upwards communication. A formal system is important, but the informal systems set the tone. No organisation, no matter how small, is completely transparent to itself. However, it has to find a way to confront uncomfortable truths from time to time.

To understand the illness, ask why people are leaving

Just as doctors will check a patient’s vital signs and run tests, senior managers need to do the same. They need to consider who they have hired and why. Do they know why people are coming to work at the organisation? If the new hires have a different set of expectations than the internal culture, the senior managers need to understand why that gap exists. Another area to consider is to look at exit interviews. Why are staff leaving? An organisation will become ill if good people are leaving and it cannot attract good people. To put it directly, if senior managers do not know why people are arriving or why they are leaving, how can they understand the organisation’s health?

For the public, it is important to look beyond an organisation’s surface. If we only criticise an organisation as “corrupt” we fail to understand the source of that corruption. If we want to reform the organisation, then we need to understand what makes it ill. Once we understand what makes it ill, we can help it get better.

[1] I do not mean criminality or behaviour that threatens the staff or the public. I mean the underlying problems or issues that emerge in an organisation when personalities intersect with opportunities that cause problems such as low level harassment, bullying, intimidation, and negativity.

[2] https://thoughtmanagement.org/2011/11/21/does-the-fish-rot-from-the-head-down-when-organisations-go-toxic/

[3] This can help explain the highest stress jobs include teachers and journalists. http://www.careerbuilder.co.uk/UK/Custom/MSN/ViewArticle.aspx?ArticleID=468

[5] https://thoughtmanagement.org/2012/09/27/the-rise-of-the-networked-managers-sense-making-in-the-social-media-age/

[6] http://blogs.hbr.org/2009/06/the-best-way-to-change-a-corpo/

[7] https://thoughtmanagement.org/2014/04/14/where-do-you-discuss-bad-news/

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How work can compromise our ethics

Posted on September 17, 2014 by lawrence serewicz
Reworked (auto-optimized by gThumb) version of...

Reworked (auto-optimized by gThumb) version of Image:Stamp_Hannah_Arendt.jpg by Saibo ( Δ ) Original-Description: (Uploaded by User:Prolineserver) —- (Photo credit: Wikipedia)

Before we enter the work place, we are never warned that the work can deform us ethically. We hear about accidents, sexual harassment, or even fraud, but how many of us are warned about the way that work can deform us ethically? The question is not an idle one. We find a scandal such as the Rotherham Council where people made ethically dubious decisions to defend the council or to protect themselves. They did what the system asked, without questioning the scale or scope of the problem. Despite critical external reports telling them of the problems, senior managers never investigated the scale or scope of the problem. The scandal continued for over 10 years, which indicates that unethical behaviour had become embedded. New employees were likely initiated into that culture, which helped to continue even as they worked on the problem’s symptoms. Such a scandal, though, is not isolated or new. In the past 20 years major firms such as Enron, WorldCom, Tyco, and Lehman Brothers, failed because of unethical and criminal behaviour.[1]

It takes time for an organisation to become unethical.

In each case, the unethical behaviour did not happen in one instance or overnight. It happened over a number of years and through a series of decisions. Rotherham council became ethically blind to the problems in the council and in the community. I have argued elsewhere, invoking Hannah Arendt’s argument, that the organisation and its employees stopped thinking.[2] What we see in each organisation is that the unethical behaviour became a learned behaviour where staff stop thinking about the larger ethical questions. They accept it as part of the culture. The people involved thought they were doing what was best for the company or for themselves and therefore for the company. They made the system work and delivered profits or organisational goals. Yet, at some point they began to filter their ethical decisions by the company’s best interest. They began to surrender their ethical responsibility to the organisation. How did this happen?

How does the work deform us?

We enter work as good people who want to act ethically. We want to treat others as we are treated and have others treat us we treat them. We believe our behaviour has to live up to a standard such as the company’s policies as well as the law. In time, though, our ethical standards become eroded. The change does not happen instantly or even in a short time. Instead, it is a constant and steady drip of ethically dubious decisions. Soon, we do not treat people as we expect to be treated. Instead, we remove ourselves from the ethical process and use the organisation as an ethical proxy. The organisation takes responsibility and we become passive actors. As Arendt pointed out in her book on Eichmann, a bureaucracy dehumanizes people. They become another cog in the machine. The organisation decides and we are just doing what is asked. In the process, the individual avoids ethical responsibility and ethically dubious decisions become easier to make.

Is compliance getting in the way of making money or getting the job done?

You may wish to hold ethical standards, but in time, they get in the way. In particular, if your senior managers or the corporation want to make a profit, they want to get on with the work, and compliance (following an ethical standard) can get in the way. Even if you are not a compliance officer, the senior managers will want you to say yes to something that if it is not illegal is at least ethically dubious.[3] We slowly learn to be unethical. We become initiated into the culture–the “way things work around here”.[4] For people who are self-aware, they may be able to see the path by which they were seduced or encouraged to become unethical. However, most people will conform because there is little reward for speaking up or speaking out.[5] Recent research suggests that honesty appears to be punished according to MBA graduates. In other words, higher ethical standards seem to lead to lower earnings.

Single loop learning can lead to unethical behaviour

You may find that your managers want to impress their superiors by “getting things done”. They will want to find ways to solve the problem as it appears to the superiors. They do not want to know why something went wrong. They just want the problem fixed. This behaviour is often called single loop learning. Double loop learning occurs when the organisation not only solve the presenting problem but seek to understand its causes so as to prevent them. When such an attitude sets in, junior staff solve the problem that presents itself. They do not ask why the problem occurred. They learn to avoid bringing more problems by asking why the problem occurred in the first place. The junior staff then realize to discuss the source of a problem, means to give bad news.[6] We can see how senior managers can encourage this by saying something like “If the regulator finds out, we can say, “It was a mistake”, and I will take one for the company”. Even when the regulator does arrive, if they ever arrive, they will only be provided with the minimum information and the organisation may even omit evidence and avoid providing anything unless specifically and unambiguously requested.[7] Unethical organisations will likely see fines or regulatory action as “The cost of doing business”. When unethical behaviour becomes the cost of doing business you know you have a problem. The company (and senior managers) now accept noncompliance as normal behaviour.

Do we ever realize when we have become ethically compromised?

At what point do we realize the change that begins to disfigure our integrity and corrupt our organisation? We see with Eichmann, an extreme example, that he never thought about the question. He has stopped thinking as he was conditioned by the political regime. Some employees do think about it and they leave. Others might stay to try and change things. Some will stay and suffer stress and illnesses as they try to reconcile their internal ethical standards against the toxic or morally ambiguous work culture. The answer, though, is not to become a whistleblower. Whistleblowing is a different issue because it is about a specific incident rather than a culture. Instead, the focus here is about the daily decisions that shape and potentially deforms our integrity to fit the organisation’s culture. The choices are rarely obviously illegal and usually show an ambiguous ethical issue.

Are you flexible? Are you an effective team?

One way to understand this change is to look for situations where your integrity is challenged. You might face statements or scenarios like the following.

“You need to be flexible.” You may find that people who are flexible in finding solutions for the company are praised. If you hold an ethical line, you are told that is inflexible and the company prides itself on a “can do” spirit rather than a “can’t” spirit.

You are holding up the decision. You may be told that you have lost a sale or kept a project from working because you insisted on the ethical standards.

You are regularly bypassed to find someone who is less ethical. Senior managers might go to your line manager to “encourage” your cooperation or simply bypass you.

Truth in jest is another scenario. A senior manager will jokingly mention something if it is not illegal it is definitely unethically or immoral. When challenged, or they find the audience unresponsive, they will say they were joking about doing it.

“If we could only make these files disappear we would not have to deal with this claim. I am joking; of course, I did not mean that we would really get rid of the files.”[8]

What are we to do?

As a new employee, you are most likely to notice ethically dubious behaviours. In your induction, you will be told about the law or other technical compliance issues. However, this is not enough. Organisations need to train employees to be ethical. The goal has to be more than awareness because employees need to understand the psychological pressures that can shape decisions. Successful training requires an ethical framework that encourages ethical behaviour. What is also required is a mechanism to report unethical behaviour so it can be addressed. The following indicate if such a framework exists.

  1. Ethical standards are publicized.
  2. Employees are trained to be ethical
  3. Ethical behaviour is modelled by senior managers.
  4. Unethical behaviour is addressed immediately.[9]

 

What the Rotherham scandal and others show is that unethical behaviour is usually a learned behaviour. As a learned behaviour, unethical behaviour can be avoided or unlearned. This means is that it can be changed if people and corporations are willing to change. Does your company offer training in how to be ethical? Perhaps it might be time to start before it is too late for you and the company.

[1] As in the case of Enron, there is a big difference between unethical behaviour and criminal behaviour. There is no law against unethical behaviour. There is a law against fraud, but that requires the court to prove the intent to commit the fraud, which is difficult to do. (See http://web.bryant.edu/~gpae/Vol3/Enron%20and%20Aurhur%20Andersen.pdf  One has to note that Arthur Andersen was vindicated when the Supreme Court overturned their conviction. However, it was too late as the company had been bankrupted and disappeared several years earlier.) However, the Sarbanes-Oxley Act does provide a possible remedy as it holds the CEO and the CFO responsible for the financial statements, which creates a higher level of accountability than existed previously. http://bizfinance.about.com/od/smallbusinessfinancefaqs/a/sarbanes-oxley-act-and-enron-scandal.htm

[2] Hannah Arendt Eichmann in Jerusalem: a report on the banality of evil 1963 (http://platypus1917.org/wp-content/uploads/2014/01/arendt_eichmanninjerusalem.pdf )

[3] The demands will rarely be as explicit as the political realm where the government has the electoral mandate to shape the public interest. There you may find leaders who make demands that can be seen as the rule of three refusals. You may refuse because you believe it illegal or it is a matter of principle but at some point, your manager explains that we do not want you to tell us that it cannot be done but show how it can be done within the law or by bending the law and we will work out the risks.

[4] The phrase is one definition of a corporate culture. The overall culture may appear ethical but there may be micro-cultures, such as within a team, a service, or a department that are unethical. However, unethical behaviour is not simply a rogue employee; it is a context that enables unethical behaviour to flourish.

[5] To counter this, an organisation needs to encourage a “candid culture” where such issues can be raised and discussed. http://blogs.hbr.org/2014/07/4-ways-leaders-can-create-a-candid-culture/  This is related to an internal communications system that encourages critical upward communication. See the work by Dennis Tourish. http://www.sciencedirect.com/science/article/pii/S002463010500066X

[6] For a classic account of the way that single loop learning encourages unethical behaviour consider the example from Chris Aygris Double Loop Learning in Organizations Harvard Business Review http://hbr.org/1977/09/double-loop-learning-in-organizations/ar/1. (Accessed 14 September 2014)

[7] The company will make a show of cooperation even as it withholds information and refuses to comply. An immediate example of this is the way that News of the World consistently claimed that they were cooperating fully with the police investigations when they stonewalled the police investigation at every stage. (see for example Dial M for Murdoch p.175-176) http://www.amazon.co.uk/Dial-Murdoch-Corporation-Corruption-Britain/dp/1846146038?tag=chrome03-21

[8] What is depressingly common in these scandals it the amount of files and records destroyed to avoid detection. Enron and Arthur Anderson shredded thousands of documents. Rotherham Council destroyed files of previous investigations and reports that helped to indicate the scale and scope of the problem.

[9] For more on managing ethically consider these resources Compliance Strategists, When Good Employees do Bad Things, https://www.kpmg.com/NL/nl/IssuesAndInsights/ArticlesPublications/Documents/PDF/Dag-van-het-onderzoek/Why-good-people-sometimes-do-bad-things.pdf  (Accessed 10 September 2014) Managing with integrity. http://actoolkit.unprme.org/wp-content/resourcepdf/201106171723110.Managing%20organizational%20integrity.pdf (accessed 9 August 2014)

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The Facebook experiment and the web’s ethical void

Posted on July 24, 2014 by lawrence serewicz
Facebook logo Español: Logotipo de Facebook Fr...

Facebook logo Español: Logotipo de Facebook Français : Logo de Facebook Tiếng Việt: Logo Facebook (Photo credit: Wikipedia)

The Facebook Experiment has upset many people.[1] In the experiment, which was conducted in 2012, Facebook manipulated the timelines of some of its users. They filled it with good or bad news to study its effect on the user’s mood. After the results of the experiment were published, some defended it with the argument that users had agreed to it in their terms and conditions. The experiment was legal because people consented to the terms and conditions.[2] A related question, though, was whether the experiment and Facebook’s behaviour was ethical.

Defend the company is the first priority.

Although people have focused on the experiment’s ethics, this blog focuses on the ethical content of terms and conditions and ethics of Facebook’s decision to manipulate some of its users. The issue is a salient one as Facebook is not alone in relying on terms and conditions to defend the legality and ethicality of how it treats customers. The terms and conditions are a legal document. Lawyers write them for a legal purpose. They explain the relationship between the company and the users. They show the company’s and the users legal rights and obligations. From the company’s perspective, the terms and conditions protect the company.[3] On the surface, this is understandable. Yet, we have to ask should this come at the price of ethical behaviour towards the service user? Is this suggesting an ethos that if it is legal it must be ethical? However, if we consider that the law is the lowest ethical common denominator within a community and is not the final or sole determinant of the common good, then such a view is problematic.

Imagine if the Constitution were based on Facebook’s terms and conditions.

What would society look like if it were based on Facebook’s terms and conditions? Although it is a speculative question, it reminds us that our lives are shaped increasingly by our digital experiences and expectations. In turn, those experiences shape our approach to ethics and, increasingly, politics. People see their relationship with the political community or the government as similar to, if not the same as, their relationship with web service providers. Despite the influence of the digital domain, the Facebook Experiment returns us to a fundamental problem. Is the legal order always an ethical order?

History repeats itself when the legal order is the ethical order.

The Facebook experiment and the ethos it reflects should remind us of a previous age. History has shown us a society that had a similar approach to law and ethics. The Weimar Republic in Germany was such an age. At that time, legal positivists like Hans Kelsen, who along with others, helped to justify and sustain the Nazi legal order by explaining that the law was without a normative content.[4] The content of the law did not determine its validity. In practice, this meant that any law was valid so long as the political authority within the state promulgated it. Even though we are demonstrably not in a political system similar to 1930s Germany, we find that the digital domain projects an ethos in which if it is legal it is ethical.

Terms and conditions may be legal, but are they ethical?

The issue we have to understand is the ethical content of the terms and conditions. To put the question directly, are terms and conditions written so that the company can take advantage of its client and customers? Such an approach may be legal, but is it ethical? As the Facebook Experiment revealed, this is a debatable question. The deeper question is why did the Facebook management team and its legal team fail to consider the ethical content of their terms and conditions and the ethical content of the experiment? Both may be legal, but they are clearly not ethical. To change the terms and conditions to include a reference to research and believe that this substitutes for informed consent suggest a gap between the ethical content and the legal content of their decisions and terms and conditions. It also suggests an ethical failure within the organisation. Yet, Facebook is not alone in this approach.

Facebook is no different from many other social media service providers. Their terms and conditions are similar to other companies. They meet legal requirements without an apparent concern for their ethical content. As long as they are legal, that is sufficient. If terms and conditions are written with this perspective, we have to consider if other decision are made this way. Do companies consider an ethical responsibility beyond the minimum of complying with the law or a legal obligation? Some might defend their approach to say that the basic ethical responsibility is simply compliance with the law. However, the law is the lowest moral or ethical order within a society.

The law is a society’s lowest moral order

The law is the lowest ethical framework within the society. It shows the basic agreement about a form of justice to sustain the decent political life within a community. The laws create the foundation of the common good. However, the common good is not the highest good simply. Instead, it is formed in response to, and guided by, an approach to a higher good as revealed by rational enquiry into the best way to live. Even though this higher good is unobtainable by a society, it is not beyond an individual’s or a corporation’s understanding. In other words, corporations and citizens can act in ways that are ethically superior to simply complying with the law. Here we see the tension for Facebook. Facebook have fallen short of the ethical responsibility that we would expect from another person. They did not consider whether they would harm someone. To put it broadly, they would have had to consider whether their behaviour was just.

In considering the question of justice, or whether Facebook’s behaviour was just, we see that the “experiment” reveals something darker about human nature in the digital domain than we care to consider in our technologically empowered world. As one observer noted, the people conducting the “experiment” did not see the people as themselves. On the surface, this appears decisive. If they had been willing to see the experiment’s subjects as themselves or their family and friends, they might have come to a better decision.[5] Here is a key failing of most ethical programmes. The ethical problems are usually seen as someone else’s problems that are easily dismissed because “we do not know” these people.[6] If the people designing the experiment were subjected to it, they may have changed their view. Such a view, though, is potentially problematic.

If we test of an ethical decision by asking whether it would be applied to your family, we make an assumption. We assume that the person who makes that decision will look out for the welfare of others. Such an approach, while interesting, would not ensure that the decision was ethical. We know that the Nazis or the Bolsheviks were quite willing to apply their brutality to their own families.[7] They would, and did, execute their own family because that is what was legal within their society. In other words, the Party or the Fuhrer required it. The political authority in their society said it was legal and therefore ethical.[8] Leaving aside the ethical content of the Facebook Experiment, we have to consider whether there are any limits to manipulating or experimenting within the digital domain.

Does Facebook’s ethical emptiness reflect a deeper ethical problem within the digital domain?

The Facebook experiment awakens us to an ethical problem. The digital domain appears to have an ethical deficit. The deficit suggests that technologists lack robust ethical training. As one commentator noted, the Web needs a moral operating system. The access to information allows companies to control, manipulate, and influence service users and customers.[9] This concern is not new. Philosophers, such as Martin Heidegger, have worried about technology’s power to shape a person’s ethical perspective. Heidegger argued that the essence of technology creates a worldview that reduces man to a standing reserve. In this worldview, we are conditions to think about the world, and subsequently man, as objects to be harvested or used just as wheat or coal is harvested or mined as a resource. As a resource, man loses his ethical standing. Instead of a moral being with an intrinsic worth, man is reduced to a resource to be experimented on or consumed.[10] Even though the philosophical issues raised by Heidegger are beyond our scope here, we need to consider the ethical training of technologist and the constraints on companies given their power over the individual. How can we trust Facebook or any social media service provider to act ethically?

Has the Facebook experiment been the moment we left the digital Garden of Eden?

The experiment has woken many people up to a central problem for the digital domain—trust. The question that will be asked is “Why should we trust anything that Facebook or any internet service provider says about the willingness to protect and respect the user?” If the terms and conditions are our only protection and we find how they are written as a minimum legal compliance without ethical content to defend the organisation, then we face a challenge. How can a user be sure that they will be treated fairly or ethically? Facebook demonstrated that they are willing to manipulate its users unconditionally and without concern for their explicit informed consent or welfare. If, as it has been suggested, that all social media provider seeks to manipulate or harvest their users in some way, what does that say about our ethical life? Has this been an implicit desire within corporations and people which the digital domain has allowed to manifest itself? For some this may be considered the will to power. If we have to engage the social media world with that assumption, then we live in a problematic age. Leaving aside the technologically powerful, who can protect themselves and benefit from this ethically dubious behaviour, who will protect the vulnerable and the weak? Who will protect you if you cannot protect yourself? Such a situation suggests that we have returned to a digital state of nature in which the technologically strong (Facebook, Google, and hackers) do as they will and the technology weak (the rest of us) do as we must.[11] What can be done?

What can be done?

If the digital state of nature is to be avoided, digital businesses will need to demonstrate that they treat their customers and clients ethically. Those companies that can show they are acting ethically and will act ethically will have a comparative advantage. If a customer believes the terms and conditions are written to take advantage of them for the company’s profit, then they will seek other providers. To demonstrate their ethical behaviour, and regain trust, companies will need to be transparent about how they are using customer data and the ethical safeguards. In particular, are they making decisions about customers with an explicit concern for ethical behaviour? They can do this with a code of ethics, a training programme focused on ethical behaviour, and a compliance system that drives ethical behaviour. If the web-based economy cannot ensure trust and respect for the dignity of the human person, it may not be sustainable. If we cannot trust our social media companies, then we have a further question about the trust needed to sustain the digital economy. Without the trust that sustains intangible property rights, an advanced capitalistic economy becomes difficult to sustain.

The ethical dilemma is more than the digital domain.

From the Great Recession, we learned that firms within the financial industry have demonstrated unethical behaviour. The Governor of the Bank of England and the Head of the International Monetary Fund made public statements on the need for the industry to improve its ethical behaviour.[12] What we found in the financial crisis was that companies rarely, if ever, considered the ethical impact of their decisions. It would appear that ethics were the first victim in the pursuit of profits. However, the danger is actually greater in the digital domain. The lack of ethical behaviour is not about money, it is about reducing humans to a resource to be consumed, manipulated, and experimented upon without apparent limit. The approach may have been legal, but is it ethical? History has shown us what can happen when people are reduced to an administrative decision. We need to decide whether we want history to repeat itself or if we are willing to have an ethical digital domain. What the companies may find is that they have unleashed an ethical contagion in which they become subject to the same brutal logic that they are willing to apply to their customers.

[1] The Facebook experiment: “In January 2012, for one week, Facebook deliberately manipulated the News Feeds of nearly 700,000 of its users as part of an experiment. News Feed is a constantly updating list of stories from people and pages that you follow on Facebook, and includes status updates, photos, videos, links as well as app activity.” (Accessed 24 July 2014)

[2] Even though people pointed to references to research in the terms and conditions, these terms were added after the experiment was conducted. On the problematic use of terms and conditions to signal consent, consider that the Nuremberg Code that human experiments must be based on freely given and fully informed consent. http://www.ushmm.org/information/exhibitions/online-features/special-focus/doctors-trial/nuremberg-code (accessed 24 July 2014)

[3] An ex-Facebook employee who worked as a data scientist for the company suggested that the experiment would have been vetted by the legal team and the PR team and there was no internal review board for such decisions. http://www.forbes.com/sites/kashmirhill/2014/07/07/ex-facebook-data-scientist-every-facebook-user-is-part-of-an-experiment-at-some-point/ (accessed 24 July 2014)

[4] One only need to consider Kelsen said quite infamously that a despotic order or a tyranny was still a legal order

It is altogether senseless to assert that no legal order exists in a despotism, but that the despot’s arbitrary will holds sway . . . after all, the despotically ruled state, too. represents some sort of ordering of human behavior. . . . This ordering is, precisely, the legal order. To deny it the character of law is only an instance of the naiveté or presumption of natural-right thinking. What is interpreted as arbitrariness is merely the autocrat’s legal ability to assume the power of making every decision . . . and to abolish or alter . . . previously established norms. . . . Such a condition is a legal one, even if felt to be disadvantageous. As a matter of fact, it also has its good points. This is shown quite clearly by the not at all unusual call for dictatorship in the modern stale ruled by law. [Emphasis added] quoted from Leo Strauss’s Natural Right and History p.4 n.2 which is quoting Kelsen’s Algemeine Staatslehre (1925) found here: http://www.commentarymagazine.com/article/leo-strauss/ accessed 7 July 2014

[5] See Ethics for Technologists (and Facebook) in HBR blog Michael Schrage http://blogs.hbr.org/2014/07/ethics-for-technologists-and-facebook/ (Accessed 15 July 2014)

[6] See for example the ethical experiment in an MBA programme where students are asked what they would do if they were on the board of a pharmaceutical company and they found a drug killed 20 people a year. After a debate, they decided to export the drug and fight the FDA rather than withdraw the drug. When asked if they would want their doctor prescribing it, they all said no. http://www.ethikospublication.com/html/mbas.html

[7] The case of Otto Ohlendorf should raise concerns about measuring a decisions ethical content by whether you would apply it to your family. Ohlendorf was in charge of Einsatzgruppe D on the Eastern front a mobile extermination unit. http://en.wikipedia.org/wiki/Otto_Ohlendorf

When he faced trial at Nuremberg he was asked the following question in different ways. http://www.gnosticliberationfront.com/otto_ohlendorf_testimony_at_nuremberg.htm

“I asked him now whether if he found his own flesh and blood within the Hitler Order in Russia, what would have been his judgment, would it have been moral to kill his own flesh and blood, or immoral.”

After a series of attempts to avoid answering it, he finally replied.

His response was “If this demand would have been made to me under the same prerequisites that is within the framework of an order, which is absolutely necessary militarily, then I would have executed that order.”

[8] The Bolsheviks willingly confessed to crimes against the party in the show trials of the 1930s. They believed in the legitimacy and necessity of their cause *even though* they knew the charges against them were false.

[9] This TED talk by Damon Horowitz suggests that technologists needs to improve their ethical training. https://www.ted.com/talks/damon_horowitz The talk itself raises a troubling spectre. The audience reaction suggested that people are no longer trained to be moral. Instead, they seem to operate with a crude moral system. When that crude moral system is placed within a corporation with it’s a demand for profits and a dominant culture, in which the employee is encouraged to go along to get along, it is not surprising that unethical decisions occur. The problem is so pervasive and so present because it means that the political philosophical crisis of the West, in which it no longer believes in the founding principles regarding political philosophy enabling a moral life and a common good, are manifested explicitly within the digital domain. What has only been debated or discussed within philosophy departments is now everyday practice in the digital domain.

[10] See the recent essay by Mark Blitz Understanding Heidegger on Technology in The New Atlantis. http://www.thenewatlantis.com/publications/understanding-heidegger-on-technology (accessed 22 July 2014) In this essay Blitz reviews the recent publication of Heidegger’s other essays around his Question Concerning Technology.

[11] If such a digital state of nature exists, one has to ask why some activists want to constrain the state which acts as the only legal defender of the weak and the vulnerable. If the state is limited by its ability to monitor the web, because of increased encryption, and it is the only legal defender of the weak, as Facebook demonstrated its willingness to prey upon its serve users, who benefits? Hackers will demonstrate against the power of the state in the Web yet they never seem to be able to explain who they will turn to except the state when predators like Facebook emerge.

[12] See their speeches at the Inclusive Capitalism conference on 27 May 2014. http://www.inclusivecapitalism.org/ Mark Carney explained that without ethics capitalism will disappear. http://www.bankofengland.co.uk/publications/Documents/speeches/2014/speech731.pdf (accessed 28 May 2014)  Christine Lagarde warned that to restore trust in the markets ethical norms needed to be strengthened. https://www.imf.org/external/np/speeches/2014/052714.htm (accessed 28 May 2014)

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The myth of the transparent organisation.

Posted on June 11, 2014 by lawrence serewicz
Accountability vs. Responsibility

Accountability vs. Responsibility (Photo credit: shareski)

We will hear that transparency is good for organisations and organisations will even tout their transparency. In many cases, the organisations believe what they are doing is transparent. They publish information on a regular basis that describes decisions, financial positions, and future strategies. In this, transparency is a means to an end for the corporation as it appears to be a good corporate citizen. Here we see the beginning of the problem. The organisation wants to appear to be transparent. The appearance becomes the goal rather than the reality. This has two consequences one external and the other is internal.

Transparency becomes reputation management

We can see the external consequences very simply. In the external realm, the organisation sees transparency as an issue that affects its reputation. Transparency must be managed like its reputation. The goal is not to be transparent but to appear transparent. The transparency will be managed. The organisation will publish what best suits its interests and its reputation. Such an approach is not surprising. Human nature is such that we want others to see us as we see ourselves. We want to control how others view us. Transparency means that someone else can potentially see the organisation as it is rather than as it appears to be. Transparency in this sense can become a form of accountability. It is hard to be accountable. For an organisation that focuses on its reputation, any transparency, except that filtered and managed for appearance and reputation, will threaten it. The transparency will make the organisation accountable in a way that it cannot control and will be resisted.

Vertical and horizontal transparency and accountability

The organisation sees transparency as a barrier to what it wants to do. One way to avoid the barrier is to claim it is already accountable. The problem though is that accountability can mean two things. The public will want vertical accountability and the organisation will want horizontal accountability. The term vertical accountability refers to the audience that holds the organisation to account. The audience is either the employees or to the public. By contrast, horizontal accountability has a different audience. The audience is peers such as the board or the regulators. The organisation does not exist and hold power, either corporate or political, to be held to account in ways that they cannot manage. Externally the organisation wants to be seen for what it appears to be rather than what it is. This brings us to the internal consequences.

Transparency is difficult when you are opaque to yourself.

To manage its reputation, an organisation will become opaque to itself. The organisation will control what is said by staff to align with its reputation. The control is usually informal or cultural. Take for instance the public sector. Some public sector organisations publish their corporate management team minutes and transparency information. For some organisations they will publish more than the minimum because that is their culture. For others, they will publish the minimum and present it to suit their interests. If something is a sensitive topic, such as spending on consultants, the term consultants will be replaced with something less noticeable like professional services. The organisation considers itself transparent and accountable. Such a scenario may seem farfetched. Perhaps it is. Yet, it reflects a dysfunctional culture. The culture resists transparency. It may want to be praised for being open and transparent, but it resists accountability. Where this occurs, we often see a perception gap between senior managers, middle managers, and junior employees that creates perverse outcomes.

The perception gap creates perverse incentives.

The perception gap that creates perverse outcomes occurs in the following way. Senior manages agree a plan to deliver a widget in 10 days. They want to beat the target of 20 days. They tell the middle managers this without consulting them. They are consulted by being told the plan. The senior managers expect them to do as they are told. If the widget will be delivered in 10 days, then it must be delivered in 10 days. It is for the middle manager to work out the details. The middle manager, in turn, then has to deliver the 10 days target against their other work. To meet the target, frontline team do perverse things.  They send a lower quality good or they massage the figures. They will count delivery as the day shipped. The senior managers are pleased because they see the 10 day target being met. The frontline staffs become disillusioned because they see the senior managers are out of touch. The middle managers lose respect because they cannot convince the senior managers the target is wrong and they allow perverse outcomes so that they can show they can meet the targets.

Internal culture works to maintain appearances

The internal problem comes when the gap between appearance and reality becomes too great to manage. The desire to manage the external reputation, rather than let it reflect the reality, infects the internal culture. The same perception-perversion gap will occur. The issue is not the gap between appearance and reality but the size of that gap. As the gap increases the internal culture becomes dysfunctional. In an extreme form, we can see this in the failure of Enron where the image of the executive was maintained until it could not be maintained anymore and the market was able to see the company for the shell that it was. We may consider these aberrations, yet, the underlying issue is that companies resist transparency that will show this gap and they are trained to resist it.

Do what is best for the company hides the problems

In particular the training to resist the transparency can be seen in things like single loop learning or blame avoidance. When a problem arises, the managers will act quickly to solve the problem. If the problem persists, and threatens the appearance, “we are a good company at x”, then the manager faces a choice. They have to explain a problem that threatens to undermine the reputation, the appearance, which the organisation is defending. Most employees want to be good employees and do what is good for the company. As a result, they may report the problem in such a way as to avoid blame without explaining that the reputation is wrong. In this regard, they do what is best for the company, or rather the senior managers, protect or support the reputation, rather than explaining the reality. If a junior officer tries to do the right thing and describe the reality, their senior managers may be embarrassed or seek to avoid blame by claiming that the junior officer “does not have all the details or the wider perspective on the issue”. When this occurs, the junior employee sees that it is better to deliver only so much transparency that will be accepted by the senior managers.

Transparency if I am at risk, contain the crisis if the company is at risk

The culture changes so that the employees embrace transparency that affects them or harms them. If it affects the organisation, the goal is to “contain” the crisis and limit transparency. The organisation’s reputation becomes the overriding goal for employee. For organisations, as for governments, silence protects them. They will resist anything that breaks that silence especially if they cannot manage it. The organisations and its executives want transparency that they can manage. They want to decide how they are seen. The goal is to keep others from knowing the organisation as it is rather than as it appears. The transparent organisation while well intentioned becomes a practice in reputation management rather than a change in culture or behaviour.

What is to be done to avoid the problem?

First, the organisation needs to work at being transparent to itself. This means it must have good internal communication so that bad news or news that contradicts the public reputation can be reported upwards.

Second, the organisation must align its reputation with its reality. If it is constantly seeking awards, the issue is whether it is in the business of winning awards or delivering a superior product. The first is about reputation management the second is about excellence.

Third, the organisations need to focus on the outcomes that are best for the company not just for senior managers. This is often the hardest part as senior managers rarely like to become powerful to be held to account.

 

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How to write transparent investigation reports

Posted on June 5, 2014 by lawrence serewicz
Students photographing evidence in SUNY Canton...

Students photographing evidence in SUNY Canton’s Criminal Investigation program (Photo credit: Wikipedia)

In the age of Freedom of Information, public sector organisations, including the police, have to be prepared to respond to FOI requests for how they conduct investigations.  For some organisations and some situations, the investigation report is made public such as in a public inquiry.[1] In many cases, the request will relate to an issue of public interest, but in other cases, such as internal disciplinary issues, the case will not attract the public interest. In those cases, the FOIA will be less likely to apply because personal data (s.40 (2) in the UK, will limit the personal data that can be disclosed. However, in cases where the public interest is high, the organisation may have to disclose some if not most its investigation report either under FOIA or as part of another regulatory requirement such as an Ombudsman investigation.[2] With that requirement in mind, it is a good idea to develop an investigation procedure and guidance that will reflect the need for transparency after the investigation is completed. The benefits are twofold. First, you are likely to have a more robust investigation. Second you are likely to be ready to be more transparent with your own organisation and, most importantly should the demand arise, to the public or regulator.

If the organisation is not prepared for FOIA, the way it conducts an investigation can appear to be a cover-up because they fail to follow these 8 steps. In all cases, a balance must be struck between confidentiality, privacy, and the public interest. However, even if the investigation is not to be made public, the steps are important for the organisation to be transparent to itself within the legal confines of confidentiality.

First, draw up clear terms of reference for the investigation. You want the people doing the investigation and those being investigated, or those involved in the investigation, to understand what you are doing, why you are doing it, and how you are doing it. The same would be for a criminal investigation where the subject has to know the crime they are being charged with and what they are under investigation for having done. If you are investigating something by the organisation because of a public complaint, you will need to let the complainant know the terms of reference in principle, even if you cannot provide them all the details in case that may prejudice the investigation. If you don’t provide the terms of reference or the nature of the investigation, especially on a public complaint, you may create an expectation gap between what they think you are investigating and what you are investigating.

After the investigation is completed, or as part of the final report, the terms of reference should be shared with all people involved, with the FOIA caveats regarding confidentiality and prejudice to subsequent or ongoing investigations. In complaints about a service, rather than an individual, you are likely to have the terms of reference implicit in the complaint. If they are not, then it is important to let the complainant know what you are investigating. This is the first step to avoid the appearance of a cover-up. If the organisation does not keep a copy of the terms of reference or never has terms of reference, it can give the appearance of a less than robust approach to investigations. If the investigation is a simple complaint, then the complaint itself will be the terms of reference. In smaller organisations or on basic investigations, this will be the case. Anything involving more than two people will likely need a terms of reference to know what is being investigated and why as well as explaining the priority of interviews to the investigator. All of this is bearing in mind the critical point that during any investigation, the disclosure of information relating to the investigation is on a need to know.

Second, set up a list of questions, themes, or issues that will be explored to express the terms of reference.  The questions should be enough to set the question map rather than a definitive list. The themes or issues that need to be covered could be disclosed if the exact questions may reveal sources and methods that would prejudice an ongoing investigation or prejudice future investigations. The caveats here is if the investigation takes a number of iterations so that questions asked at the first round can influence the second round. As a mentor of mine once said “Questions breed questions”. As questions always lead to more questions so that one cannot determine all the possible issues before they emerge. At the same time, one would have to avoid disclosing any personal data, such as names of people to be interviewed or who has been interviewed if it would prejudice the interview. If a copy cannot be shared because interviews are still being conducted, they should be shared as soon as the interviews are completed and it is not prejudicial to an investigation. In some cases, such as a disciplinary or tribunal the questions may be shared as part of the tribunal process. If the questions are not transparent after the event, it can give the appearance that questions are already determined and the outcome is decided. In other words, you are only asking for what you expect to find. .

After the investigation, the questions may need to be disclosed as part of an FOIA request because the nature of the investigation, especially one in the public interest, would need to be shown to be robust. In a small investigation, or ones that relate to investigations that do not attract a high degree of public interest, the questions or issues can be included in the terms of reference.

Even though the questions can be included in the terms of reference, it is best that they are drawn up separately and informed by the terms of references rather than limited to the terms of reference. The caveat here is if the issue is a minor or small investigation.

Third, set up a timetable when the interview is scheduled to be completed. This does not have to be set out in stone, but it should be specific enough so that that the people know the overall timetable for the investigation. No one likes to be involved in an open ended investigation. Smaller investigations can have this set out clearly as the issue may be easy to resolve. If the organisation cannot give a schedule of when the investigation is likely to be completed, it is a sure sign it cannot plan and it would look like a cover up or a pre-determined outcome is in place. The timeline will help to keep the complainant informed and you can then update them at certain points or report that there is nothing to report if that is the case. This is especially important in complaints about a service.

Fourth, keep a list of the people interviewed and when they were interviewed. If the organisation cannot provide this list, after the investigation as required, it shows that it is not organised nor that the investigation is well structured. Again, the issue here is after the report or the investigation is completed as the FOIA request may ask to demonstrate that the appropriate people were interviewed. If an incident or a complaint involved an officer and they were not interviewed or relevant people were not interviewed, this could prejudice the investigation. If the investigation is not to be made public, the organisation still needs to know for its own transparency and accountability how the investigation was conducted and who was interviewed.

Fifth, include something from the interviews within the report. Otherwise it will appear that the report has not covered all the questions or involved the responses from all the people interviewed. If people are interviewed and they are not included in the final investigation report, that will need to be explained in the report. In some cases it may not be practical or wise to include the names of everyone interviewed especially if there are confidential sources. The issue here is the final report would need to tell the organisation what was found and what needs to be done.

After the investigation, a FOIA request may still require the organisation to withhold some of the report as it relates to personal data or confidential information. If the organisation is interviewing people but does not have a need to include them in the final report, there may be an appearance of a cover up or at a minimum poor organisation. This can be overcome by having a list that is used for the organisation and then redacted for the purpose of disclosure in the public domain.

Sixth, the investigation report should guide the reader from the terms of reference to the recommendations. The reader should be able to follow from the report’s terms of reference through the questions to the conclusions and on to the recommendations. A well written report, leads the reader step by step through this process. If the report does not follow the terms of reference or the recommendation does not fit the questions, then the report will raise more questions than it answers. Thus, a well structured report that is clear will demonstrate better transparency to the organisation and to the public.

Seventh, if the report has recommendations, there should be a follow up action plan that shows how those recommendations are to be addressed. For any investigation report there should be a second report outlining the action plan for the recommendations from the investigation. If this does not exist, the complainant will not be certain you are going to solve the problems that were identified. At the same time, they and others have no way to check that you have done what you have recommended or explained why you could not do what was recommended.

In a smaller investigation, this will not be needed because the investigations recommendations are likely to be the solution to the problem. In a larger organisation or on an issue involving many people, there should be a clear action plan that the organisation can monitor to make sure that it has completed what it promised to do.

Eighth, if at all possible share all of the above or most of the above with the person who made the complaint or raised the issue. At a bare minimum, this will help to avoid the appearance of a cover-up and it will demonstrate you have done what the complainant asked. In a basic customer complaint, you need to tell them what went wrong, why it went wrong, and what you have done to fix it. The complainant may not need to see all the interviews and the investigation, even though the organisation may need that for its own learning.

In more complex cases, if someone is a victim of a crime it would be strange not to tell the victim what the organisation found out and what it will do to make it right. This does not mean they receive the whole report or special access, but that it is best to let the victims know about the outcomes.  For example, once the disciplinary hearings are finished and the investigation report is no longer as confidential as the public interest has changed, then the organisation should consider disclosing the full report or as much as can be disclosed under the appropriate legislation. Again, this is driven by the public interest in the issue or the investigation. At a minimum, the organisation should be prepared to be transparent to the public and to itself.

Internally, the organisation needs to have a process to learn from each investigation with a learning outcomes circulated to all staff, if required, and more sensitive or more detailed information to those with a need to know. For example, if an organisation investigates a fraud case it will publicise that success without great detail for the public or general staff. However, it will likely circulate specific control improvements to those employees that have a need to know about the fraud and its consequences. The purpose of the investigation is to find the problem, fix it or assign blame if required for further criminal action; it should not be to avoid scrutiny or transparency. When the organisation shares information to learn from the investigation, it must still follow the duty of confidence to protect personal data from inappropriate or unauthorized disclosure.

Even if you do not end up sharing the information for legal reasons, you should share it internally so that the organisation can learn from the issue. In all cases a balance must be struck so that you do not disclose so much that you kill the patient but enough that the public, if a public interest issue, and the organisation learn from the incident.

The eight steps might sound like common sense, but many public sector organisations do not prepare their investigations for transparency. As a result, they store up problems because they are neither transparent to themselves or to the public. If they are unprepared for transparency, because they are opaque to themselves, their investigations can appear, even though it is unintended, to be a cover-up because they have not done these steps or have not prepared themselves with the possibility that they would have to disclose information relating to the investigation and its outcome. If an organisation does not follow these steps it will be a good indication that they are not a learning organisation. Most, if not all, of the points will be followed by organisations that want to learn from the complaint or the issue. If it is a small issue or complaint, most of the eight items will be covered by good customer service. In more complex cases, such as police or criminal investigations, the balance needs to be struck because the public interest is strong to maintain the integrity of the investigative process while demonstrating, if only to the regulator, that a robust investigation process works to satisfy the public interest in the process. At a minimum, the eight steps will at least ensure the organisation is transparent to itself even if it is not transparent to anyone else.

I would like to thank Donna Boehme of the Compliance Strategists for comments on an earlier version of this post published as 8 Steps to ensure your investigation does not appear to be a coverup. I wish to thank her for her time and her comments. They improved the post by pointing out some errors and omissions. Any remaining mistakes are my own. 

Compliance Strategists are a leading consulting firm based in the metropolitan New York area, specializing exclusively in compliance, ethics, risk and governance practice.   http://www.compliancestrategists.com/

 

[1] See for example Serious Case Reviews, when a child dies or a serious outcome occurs in a safeguarding situation, have to be published. They are published with some personal data removed and confidentiality protected as required. However, the point is that they are now published whereas they were not available to the public previously. http://www.familylawweek.co.uk/site.aspx?i=ed59995

On the issue of public inquires and royal commissions in the UK see the following http://www.parliament.uk/topics/Public-inquiries.htm as well as historical examples http://www.nationalarchives.gov.uk/webarchive/inquiries-inquests-royal-commissions.htm On the general issues of a public inquiry see http://en.wikipedia.org/wiki/Public_inquiry

[2] See how the UK local government ombudsman approaches investigations. http://www.lgo.org.uk/guidance-inv/

 

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