FOI: Is Information Really Free?

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In 1997, Britain elected a new government. Everything was ‘new’ about them: they called themselves New Labour – the clue was in the title. This New Labour government brought in a “package of constitutional reforms” : devolution, incorporation of the European Convention of Human Rights, reform of the electoral system used for European Parliament elections, and Freedom of Information.

This 23-year-old manifesto pledge from the party was an attempt to distance itself from the previous government who – as the minister responsible for the Act, David Clark argued – was a “secretive” administration. Former editor of the Mirror, Kevin Maguire called it a “terrible culture of secrecy that worked against the public” . When David Clark delivered the White Paper Your Right To Know in 1997, it seemed that the culture of secrecy was now over.

It was certainly a long time coming. James Morrison argues that although “blinkered constitutional historians” try to convince us that Britain is the seat of democracy, it is worth noting that the earliest known ‘open record’ was passed in Sweden as far back as 1766 – due to the Freedom of Press Act. Freedom of Information acts had been introduced in the USA in 1967, France in 1978 and even in our own Commonwealth in Australia, in 1982. Britain was amongst those trailing in the race for open record – narrowly beating the notoriously secret China who introduced their Freedom of Information Act in 2008. It was no wonder that the Government in the UK is regarded as “one of the most secretive among all liberal democracies” .

Although called The Freedom of Information Act 2000, the Act did not come into force until 1st January 2005 – the delay being the result of government departments preparing for its consequences. A man who said that he was not prepared for its effect was Tony Blair, the former Prime Minister who included Freedom of Information (FOI) in his winning manifesto. He wrote in his autobiography A Journey: “We did it with care, but without foresight” . However, it could be argued that he had plenty of foresight: a 23-year-old pledge and a further four-year delay.

Furthermore, whilst his critics may agree with Mr Blair’s self-assessment as a “naïve, foolish, irresponsible nincompoop”, it is perhaps fair to disagree with his argument that the Act “isn’t used, for the most part, by ‘the people’” but by journalists. According to James Morrison, around 120,000 FOI requests are made each year – six out of ten by members of the public, one-fifth by businesses and just 10% by journalists . Supporting the argument of a public majority, and contradicting Mr Blair’s claims, is a study evaluating the Act, Freedom of Information: Three Years On, which states that around seven in ten (71%) of requests are made by members of the public.

WORLD ECONOMIC FORUM ANNUAL MEETING 2009 - Tony Blair.jpg

Tony Blair (courtesy of World Economic Forum, via Flickr)

Nearly a decade on from the Act coming into force, this could be the opportunity to analyse the strengths and weaknesses of Freedom of Information, and put forward suggestions to improve upon its turbulent ten years of enforcement.

It is interesting that Mr Blair criticises journalists for using the Act as a “weapon” . Indeed, the Act does not allow public bodies to distinguish between media requests and requests from members of the public. However, this has simply not been the case. The public authorities to whom the Act covers have been known to be “officious”, “self-serving” and “brusquely unhelpful” to thwart requests for information. This is evident in the case of the Home Office and Ministry of Justice vs. The Information Commissioner in 2009 when the Home Office admitted that a request from a journalist was treated differently to a similar request from someone else. The problem, it seems, is not the Act itself but the attitude towards the Act by the public authorities since under the Act, the motive of the requester should not play any part in the decision.

The textbook used by journalists when consulting media law advises its reader to consider whether to say you are a journalist, as the request made may be treated differently .

Court Gavel (courtesy of Jonathunder, via Wikimedia Commons)

Court Gavel (courtesy of Jonathunder, via Wikimedia Commons)

The attitude towards the Act and its requesters needs to change. Inspiration could be taken from our American cousins who encourage their journalists to use their act. Members of the American media are granted a fee waiver under its Freedom of Information act . Whilst this may not be feasible for the UK act, the attitude and encouragement of the US should be taken into consideration.

Defamation should be considered, as journalists are not granted any special protection under FOI against libel law; it does not confer to statutory qualified privilege. Nor is copyright covered, either. Images and maps may be subject to copyright laws. The Information Commissioner advises to consult with the appropriate public authority on the status of information; copyright may be waived or information could be licensed for re-use . This is a positive to come out of the Act: under section 16, authorities are told to provide “advice and assistance” to those seeking it.

Certainly, this does not happen all the time. It most definitely was not provided during a time what we now know as the MP’s expenses scandal in 2009. Investigative journalist and Freedom of Information campaigner Heather Brooke led an investigation into what public money is used and how for MP’s expenses. When Brooke initially put in the FOI request for this relevant information, it should have been a shining example into the effectiveness and openness of this Freedom of Information Act. Tony Blair called FOI a “quite extraordinary offer by a government to open itself and Parliament to scrutiny” but it proved otherwise. The culture of secrecy was not dead – it had taken on a different name: exemption.

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Palace of Westminster (courtesy of Tony Moorey via Flickr)

Freedom of Information, sadly, does not live up to its title, as the information is not necessarily free. The White Paper should have been called: Your Right To Know…except 36 other things. There are 36 exemptions under the Freedom of Information Act, categorised as ‘absolute’ and ‘qualified’: absolute exemptions are, well, absolute – they must not be disclosed under any circumstances whilst qualified can be disclosed if the public interest argument defeats the argument of keeping it secret. England, once again, cannot purport to be this righteous seat of democracy when it has 36 exemptions to its open record policy, compared to Scotland’s 6 and Northern Ireland’s 4 .

Under Section 14 of the Act , public authorities are not obliged to comply with a request that they deem “vexatious”. What the act does not define is what it means by vexatious: it is quite a broad definition. During The One Show’s take on FOI, Giles Brandreth presents a segment on “wide access and wacky requests” by reading FOI requests such as:

• How much toilet roll does Downing Street use?

• The amount of Ferrero Rocher chocolates used by the Foreign and Commonwealth Office.

• The number of eligible bachelors in Hampshire Police.

These are indeed strange requests, but they are not solely what is deemed as ‘vexatious’. If one were to send multiple requests to the public authority, this obsessive nature would be deemed as vexatious. Heather Brooke questions the line between ‘obsessive’ and ‘investigative’. She argues that the exemption targets the media, and those trying to do serious investigation . It is worth noting that the silly requests are not as prominent as supposed. Brooke, in an appearance on Newsnight, revealed that she made a FOI request to the Ministry of Justice about the number of vexatious requests it had received. It was 2 . To improve upon the FOI act, it needs to make clear what is defined as ‘vexatious’.

Heather Brooke May 12.jpg

Heather Brooke (courtesy of Paul Clarke, via Wikimedia Commons)

Under the FOI Act, investigative journalism is a long and arduous process as Brooke found in her battle for MP’s expenses data. The problem faced with FOI is not the law itself, but the interpretation of law. This comes under debate with Section 40 of the FOI Act: personal information. FOI does not override data protection law, but the Information Commissioner (the successor to the Data Protection Commissioner) advises authorities that when considering the release of the data, there should be a distinction between ‘professional personal information’ and ‘private personal information’ . In this case, the expenses data was very much professional personal information. This is a strength of the FOI Act: the Information Commissioner is the interpreter of the law, when there is confusion.

Since Section 40 was not particularly helpful to the MPs, the qualified exemption of section 36 could have been – or at least, they tried to use it. It covers the prejudice of effective conduct of public affairs. Tony Blair argued that governments need to be able to debate, discuss and decide issues with a “reasonable amount of confidentiality” .

Members of the current government have attempted to debate with this amount of confidentiality, at risk of breaching transparency rules in the Act. In 2011, Education Minister Michael Gove used private e-mails to discuss government business with advisors. This incident, known as ‘Govegate’, is part of “the unexpected ramifications” of the Act, according to Ben Worthy. He highlights ‘the chilling effect’, in which members of the public authorities are attempting to undermine FOI through keeping fewer records from meetings and discussions. For FOI to work, this covert behaviour simply needs to stop.

FOI is manipulated by those with vested interests, and needs to strengthen. It could take influence from its European cousin: Environmental Information Regulations 2004 (or EIR). EIR is a stronger legislation than FOI by its influence. Brought in through EU law, EIR covers a wider remit than FOI including private organisations. Whilst EIR follows similar procedure to FOI with its 20-day maximum response and correspondence through post and e-mail, requests can also be lodged verbally. For FOI to improve its remit does need extending – even to public/private hybrids such as academies and utility services it does not cover currently.

However, EIR does charge the requester. This is something that FOI needs to avoid. FOI can charge if the request exceeds a limit of £600 for national government and £450 for other public authorities. Cost is estimated by the cost of staff time used to deal with the request. Staff time is deemed to cost £25 an hour.

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Redacted Statement (via Wikimedia Commons)

MPs attempted to use the costs as a means to delay the publishing of data, argues Heather Brooke. In the Government’s response to the Justice Committee’s Report, it stated:

“Take into account some or all of the time spent on considering and redacting when calculating whether the costs limit has been exceeded.”

This was the excuse, Brooke argues, that parliamentary officials used not to publish the data by the specified deadline of October 2008. She also calls redactments as a means of “censoring” information.

The full extent to the MPs expenses scandal would not have been known if these redactments had been complete. The full data – sans redactments – was leaked to The Telegraph. If only the official disclosures were available, it would not be in the public knowledge about MPs’ second homes.

The official disclosures might not have surfaced, if Jack Straw had anything to do with it. He had already used his authority to veto the release of the Iraqi war logs through FOI, and he attempted to use this veto against the MPs expenses data. If FOI is calling itself truly an open record, this right of veto needs to be removed as it is “potentially undermining the very purpose of the Act” . Countries such as the USA and Canada do not allow executive veto, and nor should the UK.

After ten years of enforcement, the Freedom of Information Act has had a bumpy ride. It has faced a bashing from the very people whom created it. Although it is bruised and battered, it needs to persevere and come back stronger. Journalists should be encouraged to use FOI, not dissuaded. One of its strongest supports Heather Brooke calls it “an effective chisel against government secrecy and corruption” , and it needs to keep chiselling – avoiding a blunting by its opponents.

School of News Press Conference (courtesy of Tom Williams)

School of News Press Conference (courtesy of Tom Williams)

Bibliography

Banks, D. and Hannah, M. 2009. McNae’s essential law for journalists. 20th ed. Oxford University Press: Oxford.

Blair, T. 2011. A Journey. 2nd ed. Arrow Books: London.

Brooke, H. 2012. Government changes would kill FOI in Britain. Sunday Times.

Continental Research. 2007. Freedom of Information Act: Three Years On.

Daily Politics. 10 March 2011. BBC.

Morrison, J. 2009. Public affairs for journalists. Oxford University Press: Oxford.

Newsnight. April 9 2012. BBC.

Simpson, M. 2006. Freedom of Information – Worth the Wait? Politics Review. (February 2006).

The One Show. 3 March 2009. BBC.

Worthy, B. 2011. Freedom of Information (podcast). Available at: https://historyspot.org.uk/podcasts/archives-and-society/freedom-information (Accessed 2 May 2014)

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