IntroductionIn 1991, BBC Radio 4’s ‘Face the Facts’ programme reported on the closure, at two weeks notice, of a hostel for the homeless. The presenter asked to see the report that led to the decision. The then social security minister Anne Widdecombe replied:
‘You cannot obviously have detailed reports made available to every outside organisation and everybody who wants to come along and look at them. There’s no organisation in the country which could function on that sort of basis... there is no way that I am interested in having umpteen organisations looking into every last detail of all our papers... No, I will not show you the report. I see no reason to show the BBC the report. You know the contents of the report. If you don’t believe me, that is tough luck’ (BBC, 1991).
The following year, the Chief Constable of Merseyside Police replied to a requester who had asked for an explanation of one of his decisions. ‘I have not the slightest intention of giving you any information why I reached the decision I did,’ he observed. ‘To sum up, I would please ask in future you direct your inquiries to me personally but I can assure you, you will certainly not receive any answers’ (The Independent, 1992). Remarkably, that rebuff was not directed towards an ordinary member of the public, but to the chairman of a statutory body, the Police Complaints Authority.
A radical reformSuch outraged outbursts are rarely heard today. Ministers and officials may secretly feel that requesters are invading their privacy – but neither the public nor the law now accept that. The Freedom of Information Act provides, in the words of the High Court, ‘a radical change to our law and the rights of the citizen to be informed’ (Burnton, 2008). The results can be seen every day in the press: FOI stories revealing lapses in public services; policies falling short; regulators that can’t keep up; lobbying by special interests; undeclared conflicts of interest; reckless spending and authorities acknowledging in private what they have publicly denied.
Tony Blair famously described FOI as his greatest mistake and himself as a ‘nincompoop’ for introducing it. But even if he was, as Lord Falconer - who took the FOI Bill through the Lords - wryly observed, being ‘typically modest about his achievements’, some of what Blair says is spot on. FOI was, as he wrote in his memoirs, ‘a quite extraordinary offer by a government to open itself...to scrutiny. Its consequences would be revolutionary’ (Blair, 2010).
No revolution was intended, of course. After an initial, bold White Paper (Cabinet Office, 1997) the Government published a draft FOI bill so weak as to have snuffed out any right to know (Home Office, 1999). Some 10 pages of exemptions were coupled with a purely voluntary public interest test, which the Information Commissioner would have had no power to enforce. In a parody of a public interest test, authorities would have been entitled to ask requesters why they wanted the information, what they intended to do with it and - if satisfied with the reason - reveal it on condition they did not make it public. That this would have constituted disclosure ‘in the public interest’ was a neatly Orwellian touch.Faced with a gale of criticism, these elements of the Bill were eventually dropped. The public interest test became legally binding but ministers insisted on the power to veto decisions made under it by the Commissioner and Tribunal. Jack Straw who, as Home Secretary, introduced the FOI bill has since acknowledged that he and the prime minister considered killing the measure off altogether. Only Labour’s manifesto commitment to FOI and Blair’s personal promise to deliver it restrained them (Straw, 2012).
In the public interestThe public interest test has proved to be the heart of the Act. It has turned exemptions from the fierce barriers to access originally intended to a nuanced balancing of the pros and cons of disclosure. The section 35 exemption for government policy formulation was intended to protect internal discussion from disclosure other than in exceptional cases. But the High Court has ruled that there is no presumption against disclosure under the public interest test (Burnton, 2008). If you ask for policy discussions before any decision has been taken, the answer will normally be no. But if the request is made after the decision, a genuine weighing up of competing factors should follow. Will disclosure of information of that sensitivity (or lack of it) after that length of time inhibit the future recording of similar views? Does the public interest in protecting the official stream of consciousness outweigh the benefits of scrutiny, public understanding and accountability?
The section 36 exemption for the frankness of advice or deliberation and the ‘effective conduct of public affairs’ was devised as an easily invoked catch-all. All that’s needed is a ‘reasonable opinion’ from a minister or senior officer that disclosure would be harmful. But the Tribunal’s approach, which the Government cannot have expected, is that while this elevated person’s opinion triggers the exemption it carries no weight under the public interest test (Information Tribunal, 2007). If the evidence of harm is poor or the case for disclosure good, the information must be revealed.
The ministerial veto, which in theory could overturn such public interest decisions, has been invoked on only a handful of occasions in the Act’s 10 years. A commitment that the cabinet must endorse its use on every occasion has erected a procedural obstacle to its casual exercise. So while disclosure of the cabinet minutes on the war with Iraq has been vetoed, the government has complied with Tribunal rulings to disclose ministerial working party papers discussing the benefit rights of Eastern European workers (Information Tribunal, 2009) and information about British officials’ role in soliciting bribes for Saudis involved in the Al Yamamah arms deal (Information Tribunal, 2008).
Unfortunately, the public interest test does not apply to all exemptions. And an obstructive authority has a powerful card to play: delay. Each stage of the process can be spun out over many months. Requesters with lives to live may find other uses for their time but plenty have been prepared to go the distance.
The media have played an absolutely critical role. They have not only opened up streams of important news stories but demonstrated to the wider public that FOI works and is worth using. Requests cost nothing and are simple to make – particularly via the informative WhatDoTheyKnow.com web site, which allows requesters to first study how related requests have fared in the past.But there has been a backlash. According to one survey some authorities believe that many requests are made solely ‘for what was seen as illegitimate use i.e. a “good” media story or to irritate organisations’ (Ministry of Justice, 2011). An appeal for information about ‘problems’ caused by the Act, circulated on behalf of the Local Government Association in 2014 sought statistics on requests by the media and others while complaining about ‘the use of the FOI process by researchers and campaigners for their benefit at our expense’ (Lawyers in Local Government, 2014). The depressing implication is that they believe the Act is there to help householders discover why their rubbish collection was late but anyone using it to document or influence policy is hijacking FOI for an improper purpose.
The press’s use of FOI undoubtedly irritates some authorities. Is this just resentment at the scrutiny, exposés and criticism? Complaints about the high volume of journalists’ requests are common. FOI is sometimes used as a survey tool with the same request going to multiple authorities. Some of the results have been spectacular, as with the Guardian’s survey of the mortality rate of
individual cardiac surgeons.The paper published figures adjusted to take account of the severity of the patients’ conditions, so as not to unfairly penalise surgeons prepared to tackle risky cases (Boseley, 2005). The exercise gave extra impetus to the publication of such data by the Society for Cardiothoracic Surgery, which has now occurred. Critics had argued that it would make surgeons less willing to operate on high-risk patients, to avoid jeopardising their statistics. But this has not occurred, at least from the publication of hospital- wide mortality data (Bridgewater, 2007).
Another complaint is that journalists use FOI for ‘fishing expeditions’ – requests fired off with no express target in the hope of a lucky strike on a newsworthy item. FOI officers may resent having to find and process large volumes of material most of which will be judged too mundane to report. The Commissioner who enforces Scotland’s FOI law has ruled that a request for all ‘if asked’ answers to potential press questions, prepared by the Scottish Government during a four month period, would have required such a wide and expensive trawl of files as to make it ‘manifestly unreasonable’ and thus vexatious (Scottish Information Commissioner, 2013).A ruling from the UK Upper Tribunal has established that requests that do not exceed the FOI cost limit may be vexatious if answering would cause a disproportionate burden not justified by the value of the information (Upper Tribunal, 2013). The UK Information Commissioner’s guidance expressly cites ‘fishing expeditions’ from journalists as a potentially vexatious category if they are part of a disproportionately burdensome pattern of ‘pot luck’ requests covering large amounts of information of limited value. However, he cautions against its use by authorities where the requester is following a genuine line of enquiry (Information Commissioner’s Office, 2013). At the time of writing, only one such journalism case had been decided, and that in the journalist’s favour (Information Commissioner’s Office, 2014). This development will undoubtedly require some requesters to moderate the volume of requests they make. Under a regime where access is completely free of charge, such self-restraint may be wise if only to avoid further restrictions.
Pressure for restrictionsWithin 18 months of the Act coming into force in 2005 the Blair government attempted to make it easier for authorities to refuse requests on cost grounds. The measure was blocked by the then Chancellor, Gordon Brown, and dropped when he became prime minister in May 2007.
Simultaneously, a private member’s bill to exclude Parliament and thus MPs’ expenses from FOI was approved by the Commons but stalled in the Lords (Campaign for Freedom of Information, 2007).
In 2010 the government came close to excluding all cabinet and cabinet committee papers from the Act (Ministry of Justice, 2010). There has been high- level support for moves to bar access to government policy discussions altogether and the Prime Minister, David Cameron, has complained that FOI ‘furs up the whole of government’ (House of Commons, 2012). Information about communications with the Monarch and the next two in line to the throne has already been removed from FOI.
There has been pressure for application fees to be introduced with some authorities calling for them to apply to commercial bodies, which they suggest should include the media. The Local Government Association has twice released lists of the most bizarre FOI requests received by local authorities, highlighting the total cost of FOI to councils and warning about the need to ensure value for money. In fact, requests about preparations for possible zombie attacks (the kind of example that features) cost nothing, because FOI officers do not spend time on them. But the publicity promotes the idea that FOI has gone too far.
At the time of writing the coalition government is still considering options to allow more requests to be refused on cost grounds - and the introduction of charges for appeals to the Tribunal. It says its concern is to focus on those who impose ‘disproportionate burdens’ by making ‘industrial’ use of the Act. But the key proposals would make it easier to refuse all requests including those from occasional applicants raising issues of real public interest (Campaign for Freedom of Information, 2014).
So far attempts to restrict the Act have largely been unsuccessful. But there’s no guarantee of that in future. The introduction of charges under Ireland’s FOI Act in 2003 (which has just been partly reversed) led to an immediate 75 per cent fall in the volume of official information requests. The Office of the Australian Information Commissioner is being abolished which will require challenges to the merits of decisions to go to the Administrative Appeals Tribunal at a cost of AUS$800 (£435).
There is no iron law that says FOI is never rolled back - and pressure for that seems certain to continue.
- FOI 10 years on: freedom fighting or lazy journalism? Edited by Tom Felle and John Mair, published by Abramis academic publishing www.abramis.co.uk