The Freedom of Information Act is celebrating its tenth year, but former Prime Minister Tony Blair will not be the one blowing out the candles on the birthday cake.
The Freedom of Information Act (FOI) was given royal assent and passed into law in 2000. It took a further five years for the Act to be implemented, and it came into force on 1 January 2005. The White Paper, produced by Dr David Clark, to which Mr Blair provided the preface, is called “Your Right To Know”. The title of the White Paper sums up the Freedom of Information Act: it gives the citizen a right to know about its government’s actions.
Over 100,000 public bodies are held accountable by the Freedom of Information Act. From local to central government, health to education, the public bodies have 20 working days to respond to requests from the public: either by supplying the information or explaining why it cannot be supplied. Around 120,000 requests are made to these public bodies each year.
Tony Blair gave a scathing critique of the Act in his memoir, My Journey:
“Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head ’til it drops off. You idiot. You naïve, foolish, irresponsible nincompoop.”
Whilst I find it difficult to dispute his self-assessment of calling himself a “nincompoop”, there are two claims Mr Blair makes on the Freedom of Information Act (FOI) that needs to be addressed:
- “We did it with care, but without foresight.”
- “The truth is that the FOI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists.
His first claim can be disproved within one sentence: freedom of information was a 23-year-old pledge from the Labour Party, appearing in six consecutive manifestos.
His second claim is a bit trickier. Journalists, if we are to follow the idealistic Fourth Estate watchdog status of the press, use FOI on behalf of the people, for the people. And surprisingly journalists are not the highest volume of requesters – they just have the biggest audience. The largest requester is actually the private individual (or “the people” as Mr Blair calls them). It is difficult to profile a requester, as the process ought to be anonymous, and figures change from study to study: James Morrison (the academic, not the singer) offers the figure of 60% whilst The Constitution Unit offers the figure of 39% for private individuals. But the common theme within these statistics provided is that the private individual sends out the highest volume of requests.
Since Mr Blair assesses journalists as ‘not-people’, the question arises: are journalists treated differently when using FOI? In 2005, Professor Alasdair Roberts warned the UK about the “amber-lighting procedure”, a bureaucratic maze used by Canadian authorities to thwart journalists.
The amber lighting procedure goes through five stages from its initial submission to its disclosure. The request is first sent to the relevant department. A ‘risk assessment officer’ then determines whether they should tread with caution. These ‘sensitive’ requests are then sent to the Minister’s Office for further scrutiny. The ‘amber-lighted’ request is answered by the relevant department who co-ordinate with the Office of Primary Interest, which helps develop a complete disclosure package: a combination of the documents requested and context in the form of press releases approved by the Minister’s Office.
To test whether this administrative Dante’s nine circles of Hell exists in the UK, two sets of ten FOI requests were sent out to the councils of Greater Manchester. The first set did not identify the purpose of the request, and the only description of the requester was a name and address (a gullible flatmate of mine to whom I owe a pint). The second set was quite candid in its intentions, clearly stating that it was from a journalist. This test was not necessarily to gain information, but to examine the quality of information from the councils.
One year after the introduction of FOI, the success rate of responding to requests from journalists was dire. Recording a 53.3% rejection rate, Manchester Evening News sent out 15 freedom of information requests to public authorities – eight were refused.
Before this test, Tom Rodgers, news editor of SalfordOnline.com, anticipated a similar rejection rate:
“(On whether he uses FOI) I can give you a short answer: not really.
“Salford City Council rarely respond to stories on time – if at all.
“In fact they’re under monitoring from the Information Commissioner, as it is currently responding to less than 65% of all of its FOI requests within the legal timeframe.”
Surprisingly, Salford City Council did respond to the request from the journalist in full, but chose not to respond to the request from the private individual within the 20 working days timeframe.
In fact, the majority of the councils showed a considerable improvement and even favouritism towards the requests from the journalists. Over ten years, the FOI success rate for journalists in Greater Manchester has rose from 53.3% to 80%. Only 40% of requests from the private individual were answered on time.
Former deputy editor of the Manchester Evening News, Ian Wood argues that press offices have moved on from declining information to instead proactively disclosing it:
“Smart press officers now hide their secrets in plain sight.
“Instead of putting it in a vault and hiding it, savvy press officers put it somewhere deep in a 30,000 gigabyte document.
“We are experiencing a tsunami of information, and although anyone can use the Act to gain information, journalists are required as specialists to decipher it.”
This proactive disclosure was evident in two of the responses to the journalist requests: Rochdale Council provided information from a larger time scale than requested, highlighting that the council had improved significantly over more recent years, and Wigan Council provided an additional press release alongside the request on their FOI improvement thanks to new measures. This additional context was not provided in the requests from the private individual, where both councils disclosed in full.
Councillor Terry Halliwell, cabinet member for customer transformation at Wigan Council, said:
“In the last four years, the number of FOIs has more than doubled, costing the local authority £100,000 in 2013 alone.
“We are working hard to deal with requests effectively and efficiently and I’m pleased that these measures are working.”
The favouritism shown to journalists by the ten councils contrasts to the behaviour of the Metropolitan Police down South. In February 2015, the Met Police Force banned the Press Gazette from sending FOI requests about the Regulation of Investigatory Powers Act (RIPA). The Met Police accused the Press Gazette of being “disruptive” and having a “disproportionate impact on a public authority”.
Even more worrying is the South Cluster Met Police press office telling journalists that it will no longer deal with “reactive media enquiries” such as local crimes and road traffic collisions. In its place, the local communications team will deal with “proactive” good news enquiries. Reactive media enquiries are instead being directed towards the central Met Police press team. This ban on negative stories and FOI requests is a serious prevention of journalistic scrutiny of public authorities.
In a review of record keeping in local government, Elizabeth Shepherd argues that freedom of information legislation is only as good as the records kept. Poor record keeping undermines FOI. This was evident in the requests sent to the Greater Manchester councils: Salford, Stockport, Oldham, Bolton and Wigan did not disclose the requests in full since their records were not all electronic and they used Section 12 of the Act, exempting request exceeding an “appropriate limit” – currently £450 limit for local government and £600 for central government. Wigan Council even worked out the figure the request would cost: £1025. This also shows the subjective nature of exemptions as Bury Council said that the request cost £25 to complete. Responding two weeks after the deadline, Trafford Council rejected the request because they have only started to hold records relating to FOI from 2014, and the person who was in charge of this previously no longer works there.
Whilst not disclosing the journalist requests in full, Wigan and Rochdale councils in their disclosure packages explained that there are improving their record keeping for FOI. Trafford Council also stated that their record keeping improves from 2014 onwards. It could be speculated that FOI will become more relevant to journalists and other requesters as record keeping is improving therefore more information will be easily accessible.
Ian Wood calls FOI a “passport to information” but a more fitting analogy may be that FOI is an airport: you have to go through the rigmarole of checking-in, security and customs to finally reach your intended destination. If you are a journalist, you tend to get your bags checked twice along the way.
FOI has contributed to a culture change from “a need to know” to a “right to know”. However, the Act was oversold to journalists. Mirroring President Barack Obama’s admission that his campaign slogan should have been “Yes, we can – but…” after two years in office, FOI is arguably ‘Freedom of Information but…’ The name of the Act sounds all encompassing with its promise of freedom, but there are 36 exemptions to prohibit the requester from total freedom. Those amounts of let-outs are illustrated by the space they take up in the legislation: twenty-four lengthy sections plus an additional section outlining their general effect. Compare this to the measly few lines in one section outlining the general right of access to information.
Ian Wood, when discussing the relationship between journalists and press offices, observed that FOI is essentially “a thing used by people” – he argues that interpretation of the legislation is subjective. One man’s exemption may be another’s disclosure. In the eight councils out of ten that replied to the requests for this dissertation, 50% responded in full and 50% responded partially or not at all. FOI has no leverage over the behaviour of officials.
Although, just after the introduction of FOI in the UK, Wood does admit journalists used it rather sparingly.
He noted: “When we first started using FOI, we were like a child with a new toy.
“I remember there was talk of introducing an FOI Unit in the newsroom, whose sole purpose was to fish for stories.
“Instead, we have Data units now to analyse information that we already have – we are not fishing, we are reeling in.”
Since vexatious requests are open to interpretation by FOI officers and press offices, this begs the question: what is the difference between vexatious and investigative requests from journalists?
Section 14 of the lengthy exemptions listed in the Freedom of Information Act 2000 states that public authorities are not obliged to respond to requests if they are vexatious. However, it does not define what a vexatious request is. The Oxford Dictionary defines vexatious as: causing annoyance, frustration or worry. As well as defining what vexatious is, public authorities then have to interpret whether they personally find it annoying. This subjective decision is best highlighted by the responses to the FOIs for this dissertation: whilst Manchester, Bolton and Bury councils did not turn down any vexatious requests between 2011-2014, Rochdale turned down 7 whilst Salford simply said they turned down “a large number”.
And perhaps this is what Tony Blair was getting at in his evaluation of the Act. A request from a journalist may be considered annoying or a cause for worry, but whose fault is that? If the information reveals a wrongdoing, a wrongdoing was committed not by the journalist, but by the person in question. Relations between journalists and public authorities, in particular in Greater Manchester, are seemingly improving as both parties are getting used to FOI ten years on. It appears that the amber-lighting procedure, witnessed in Canada, has not travelled to these shores.
To end on a slogan used by Blair in his 1997 election campaign: things can only get better.