Government Changes Would Kill FOI in Britain

The Sunday Times, 24 December 2012

Recently the Government published its response to Parliament’s post-legislative scrutiny of the Freedom of Information Act. I wrote a response to this in the Sunday Times.

The Freedom of Information Act (FOIA) has always sat uncomfortably with the British government. Britain was one of the last western democracies to adopt the act and officials were so worried about people’s “right to know” that implementation of the law was put off for five years — the longest preparation time in the world. Indeed, Tony Blair described its passage as “one of the biggest mistakes I made in office”.

That should tell you all you need to know about officials’ fear of real public engagement. Responding to what people actually want to know is a different form of democracy from telling people what you want them to know through bloated governmental press offices.

After the expenses scandal, this government came to power on a transparency mandate and has substantially improved matters, opening up large tracts of official data, publishing more public spending information than ever before and even providing pay grades for public officials. We are still a long way from what a company chief executive would expect to see from his employees — exact pay and perks for all staff employees with their name attached — but things have improved dramatically.

However, all that good work is about to be undone by one worrying change announced last week in the government’s response to post-legislative scrutiny of the FOIA. This would allow officials to “take into account some or all of the time spent on considering and redacting when calculating whether the costs limit has been exceeded”.

After I won my long FOI battle in the High Court for MPs’ expenses data, parliamentary officials used this excuse as a reason not to publish the data by the specified deadline of October 2008. They claimed it was taking a great deal of time and resources to “consider” and “redact” (ie, censor) the receipts. I suspected that they were trying to redact as much as possible with the specific aim of inflating the costs in order to suppress publication. When an insider leaked the entire database in May 2009 to The Daily Telegraph it appeared that supposition was correct.

The government claims this change to the law “would affect only a small number of FOI requests” but in reality, almost all but the most anodyne request could be blocked if this change is approved. Any request an official wants blocked, he will simply rack up “thinking” time by having meetings with his chums and the request will be refused as being too expensive to answer. If this change goes through, it will be the death knell of FOI in this country.

The government also seeks to lower the cost limit for requests from the current £600 to £450. Yes, we must make cuts in these times of austerity, but officials should remember the information in question was created and stored at taxpayers’ expense so it is churlish to deny them the results of their contribution.

Another ruse to stop people asking too many awkward questions is a proposal to prohibit any one person or organisation from making multiple requests within a certain time limit, regardless of merit. There is already an exemption for vexatious requests so this would target the media and those trying to do serious investigation. In America, members of the media are granted a fee waiver under its FOIA to encourage their use of the act. Does the British government want to be seen to be giving the opposite message, of obstructing the media?

There are many problems with the FOIA as it currently is written and enforced but the government’s response, I would argue, is biased against the general public interest. Public bodies, particularly the police, routinely ignore requests and time limits. Officials actively seek to avoid their statutory duty to provide advice and assistance to those who make requests by refusing to provide any direct contact information. The individual has to shoulder all costs at an appeal while public bodies are funded by the very public from whom they are seeking to hide information. There are no sanctions against public bodies that actively obstruct or delay answering requests. And while the government has proposed increasing the statute of limitations for the criminal offence of lying or destroying information subject to a request, it has not taken the parliamentary committee’s advice of making this a crown court offence with substantial financial penalties.

Transparency and accountability are the only forms of competition that exist to ensure monopoly public services work for the wider public interest and not special, or private interests. If the government wants to retain — or even obtain — trust for the decisions it makes, then the more original source material that is out there the better.

In the long term a good FOI regime benefits not just the public but the legitimacy of public services.