The ‘Administrative Justice’ of Government Data Sharing for Research: a Primer

The ‘Administrative Justice’ of Government Data Sharing for Research: a Primer

By Stergios Aidinlis

In April, at the annual SLSA conference in Leeds, I presented a paper based on my doctoral research on administrative data sharing decision-making in the UK. This post first presents the background of this research and then discusses its relevance to administrative justice studies. It concludes with a preliminary note on my methodological approach and research findings, which indicate the salience of non-legal, organisational-level values in influencing data disclosure decision outcomes.

Background: Government, Administrative Data Sharing for Research

‘Administrative’ data is ‘data generated during the course of some operation, and then retained in a database’.[i] This discussion is confined to public-sector administrative data generated throughout the operation of large-scale bureaucracies for such purposes as social security and tax collection.[ii] Recent years have seen the investment of significant resources by the UK Government in harnessing the untapped potential of massive administrative datasets to achieve ‘public service modernisation’ and improve civil service delivery through data-intensive research. The promise of such ‘big’ datasets to revolutionise our empirical understanding of complex social and economic problems has fuelled this ambition.[iii]

Part of this strategy was a £64 million investment by the British Economic and Social Research Council, via the Department for Business, Innovation and Skills, in the creation of a UK-wide infrastructure that would facilitate secure access to Government data for research purposes. The infrastructure, called the Administrative Data Research Network, operated between 2013 and 2018, demonstrating notable achievements, but also facing significant data acquisition challenges.[iv] These challenges, which resonate with broader academic and policy findings on risk aversion in British public-sector data sharing,[v] create uncertainty about the actual exercise of legal powers to share Government data.[vi]

Why, however, are the dynamics of this specific sub-category of administrative decision-making, i.e. decisions on Government data disclosure for research purposes, important to understand from an administrative justice perspective?

Government Data Sharing Decision-Making and Administrative Justice

 Some elaboration is needed on why an understanding of Government data sharing decisions is important for administrative justice scholars. Providing a theoretical explanation of this particular type of administrative decision-making is, after all, not the most common of tasks for an administrative justice study. Even if we adopt a broad definition of the field,[vii] we are missing the crucial element of the people as the ‘users’ who are directly affected by the decisions of public bodies and may seek to question and challenge the correctness of such decisions. Data sharing decision-making operates on a more distanced level from the general public, with researchers who request access to government datasets being the ‘users’. Nonetheless, and beyond being cautious about relying on a unique definition of ‘user’ in administrative justice research,[viii] both the specific subject-matter and broader theoretical relevance of explaining data sharing decision-making for contemporary administrative justice studies cannot be ignored.

First, understanding the drivers of Government data sharing decision-making may crucially enrich the epistemology of administrative justice research. Empirical research on administrative processes often requires access to Government datasets, which are currently, to a significant degree, not accessible or available.[ix] Lack of data access deprives research of the clear evidence-basis that would maximise its impact on informing reform. Hence, a recent effort to map the existing data sources for administrative justice research in the UK suggests further investigation into the dynamics of data ownership and acquisition by researchers. This need is very topical in the advent of such Government reforms as the HMCTS investment in the digitalization of tribunals, a process that will generate a wealth of administrative data that can be used to inform our understanding of the justice system.

Second, providing a systematic explanation of legal and extra-legal influences on administrative decisions has been one of the core theoretical concerns of such administrative justice theorists as Jerry Mashaw, Michael Adler and Robert Kagan.[x] These scholars have been aiming to explain how bureaucracies operate in response to various influences, sketching specific decision-making patterns by reference e.g. to professional ethos or moral judgment. Recent studies within this tradition have turned our attention to the salience of different value orientations in guiding administrative decision-making,[xi] often displacing legal considerations to a marginal place.[xii] The present work shares similar concerns in the context of decisions about disclosing Government data to researchers.

What, then, is my progress in fleshing out the driving forces of administrative data sharing for research purposes in the British public sector?

Law and Other Drivers: the Salience of Non-Legal, Organisational-Level Values

 To place the discussion in social-scientific modelling terms, this research is constructing the outcome of administrative decision-making as its dependent variable and the forces that may explain it as its independent variables. The latter are hypothesised to be associated with variations in the former.[xiii] This post concludes with a brief overview of my methodological approach towards creating and refining these variables, as well as my so-far research findings.

‘Hard data’ on the number of research data sharing requests rejected or approved by public bodies or the latter’s decision-making reasoning is, unfortunately, scarce.[xiv] With that in mind, this work initially analysed existing knowledge in the academic and policy literature, interrogating it through empirical work involving qualitative semi-structured interviews with English and Northern Irish public-sector data custodians. Proceeding from literature claims that a combination of a puzzling legal framework and a problematic organisational culture explains risk-averse decisions,[xv] it identified a number of cultural forces as more salient in driving research data sharing decisions: ‘interpretations of the applicable legal framework’, ‘evaluations of the relationship between policy-making and research’, ‘perceptions of administrative data ownership’ and ‘trust or distrust in data sharing collaborators’.[xvi] To test these variables and measure their relative strength in steering data sharing decisions, I designed a survey questionnaire and administered it to a small-scale, non-probability sample in the context of a major conference on administrative data research with attendees from both academia and government.[xvii]

My findings emerge from data integration and analysis of data from twenty three (23) semi-structured qualitative interviews with quantitative data from this small-scale survey (n=39). The crux of these findings is that non-legal, non-codified and non-articulated normative orientations towards sharing administrative data for research are the strongest variables in this context. In other words, the outcome of a decision is more likely to be determined by normative attitudes towards the ownership of administrative data as property of a public body (vs as a shared resource or public good) or the legitimacy of data-intensive research that is not directly related to improving policy-making.

Crucially, these attitudes do not influence the outcome of data sharing decisions on their own; the extent to which an alignment in normative orientations between decision-makers and requesting parties will be achieved is crucial for a favourable data sharing decision. While space precludes a more elaborate discussion of these findings or the analytical techniques employed in data analysis that resulted in them, the lesson for administrative justice studies is clear. The law, either seen as the system of formal rules set by a legal authority or as the upshot of subject interpretations of these rules and their impact on decision-making, presents a comparatively weak correlation with decision outcomes. In an increasingly technology-laden public administration, data sharing ‘cultures’ and their alignment between decision-makers and ‘users’ are more salient in tipping the balance.

[i] D J Hand, ‘Statistical challenges of administrative and transaction data’ (2018) 181(3) J R Statistic Soc A 1.

[ii] R Connelly et al, ‘The role of administrative data in the big data revolution in social science research’ (2016) 59 SSR 1, 3.

[iii]  L Einav and J Levin, ‘The Data Revolution and Economic Analysis’ (2014) 14(1) IPE 1, 7- 8.

[iv]  In its fourth year of operation, the Network had managed to get the data for circa 19% of the ADRN-approved projects it had been facilitating, see UKSA, ‘Thirteenth Meeting of the ADRN Board: Agenda and Papers’ (2017) 14.

[v] R Thomas and M Walport, `Data Sharing Review Report’ (2008 (https://webarchive.nationalarchives.gov.uk/+/http:/www.justice.gov.uk/docs/data-sharing-review.pdf) 5.24; Law Commission, `Data Sharing Between Public Bodies: A Scoping Report’ (2014) (http://www.lawcom.gov.uk/app/uploads/2015/03/lc351_data-sharing.pdf) 7.36; G Laurie and L Stevens, ‘Developing a Public Interest Mandate for the Governance and Use of Administrative Data in the United Kingdom’ (2016) 43 JLS 360, 362.

[vi] Note that legal powers in this context are always discretionary, with the Government finding that ‘mandating the disclosure of data would not be appropriate’, Department for Culture, Media & Sport, ‘Digital Economy Bill – Factsheet – Digital Government: Research and Statistics (clauses 56-68)’ (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/535021/11._Research_and_Statistics.pdf).

[vii] UKAJI, ‘A Research Roadmap for Administrative Justice: Summary’ (January 2018) 2: ‘Administrative justice is about how government and public bodies treat people, the correctness of their decisions, the fairness of their procedures and the opportunities people have to question and challenge decisions made about them’.

[viii] J Tomlinson, ‘Revisiting the turn to ‘’users’’ in administrative justice’ (13 November 2017) (https://ukaji.org/2017/11/13/revisiting-the-turn-to-users-in-administrative-justice/).

[ix] (note vii) 3.

[x] J Mashaw, Bureaucratic Justice (Yale University Press 1983); M Adler, Administrative Justice in Context (Hart 2010); R Kagan, ‘The Organisation of Administrative Justice Systems: The Role of Political Mistrust’ in Adler, ibid.

[xi] Z Richards, Responsive Legality: The New Administrative Justice (Routledge 2018).

[xii] M Hertogh, Nobody’s Law: Legal Consciousness and Legal Alienation in Everyday Life (Palgrave 2018).

[xiii] L Cargan, Doing Social Research (Rowman & Littlefield 2007) 36.

[xiv] Some evidence can be found in researcher accounts such as the ones reported by the ADRN Board in (note vi) but this is hardly systematic.

[xv] (note v); CEIS, ‘Overcoming cultural barriers to information sharing within regulatory services’ (2016) (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/535439/overcoming-cultural-barriers.pdf) 7.

[xvi] S Aidinlis, ‘Custodian Legal Culture – Enabling Multi-Stakeholder Research Collaborations between Academia and Government in the UK’ (2018) 3(2) IJDPS (conference abstract).

[xvii] Ibid.