The last week or so has not been kind to FOI. Last Thursday it appeared that the government was pursuing retention and deletion policies which involved deleting emails after 90 days. On Tuesday we saw Iain Duncan Smith’s apparent refusal to publish statistics relating to those dying after having had their benefits cut. It now seems that new Justice Secretary Michael Gove would like to look into reform of FOI. He said during questions in Parliament yesterday that
…we do need to revisit the Freedom of Information Act. It is absolutely vital that we ensure that the advice that civil servants give to Ministers of whatever Government is protected so that civil servants can speak candidly and offer advice in order to ensure that Ministers do not make mistakes. There has been a worrying tendency in our courts and elsewhere to erode the protections for that safe space for policy advice, and I think it absolutely needs to be asserted.
The effect of FOI on policy discussions generates lots of heat but very little evidence. Tony Blair claimed FOI had led to more caution over recording decisions. Former Cabinet Sectary Gus O’Donnell also claimed it has ‘hamstrung’ government, though when pressed he could only offer isolated examples-one hypothetical and one based on the coalition negotiations, one of the most unique and unusual political events in recent decades.
There are two problems with the idea that FOI has cramped decision-making or led to changes in records. One, it’s very difficult to prove or disprove. The Justice Committee ‘was not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act’ and also felt the protections for policy were more than sufficient. Our own studies found a few examples but no systematic changes-and also many officials more concerned about the dangers of not having a record if a judge came knocking.
Two, it’s also very difficult to prove that any changes are a result of FOI. Many, many things cause records to change-lack of resources, leaks, the arrival of iphones, emails, even changing decision-making styles (‘sofa government’ anyone?). Holding just FOI responsible seems a little skewed.
But the claim won’t go away. This is partly psychological. Politicians believe it happens and keep repeating it, so it then becomes true to them. It is a rather wonderful example of a self-confirming myth, especially as the myth itself may then make people wary. It is, of course, more politically, a convenient and half acceptable way of attacking FOI, for those politicians who don’t like the disruption FOI brings.
Michael Gove is by no means the first to suggest ‘amending FOI’. Here’s a quick list of the many attempts by governments of all shades to change the law, either coming from government or Parliament since 2005:
- Introduce fees or change the cost limits (2006)
- Remove Parliament (2007)
- Removal of Monarch and Heir (2010)
- Clampdown on ‘industrial users’ (2012-2013)
- Amend the veto (2015)
Interestingly, only one has succeeded so far, removing the Monarch and Heir (done by the Labour government but, because it commenced in 2011, blamed on the coalition) . This change, probably not incidentally, was the one that got least press coverage.
So why have all but one of these attempts failed? FOI is very powerful as a symbol. It also has lots of supporters in Parliament, the media and among NGOs. This is especially the case in the UK where ‘FOI’ is linked to the magic words ‘MPs’ Expenses’. Trying to cut back on FOI instantly galvanises this opposition and, almost by default, makes you look secretive-see the Daily Mail from yesterday. It won’t necessarily lose you votes but it provokes political pain for little gain.
Which takes us to Gove’s idol, President Lyndon Johnson (see this speech). Many politicians support FOI through gritted teeth (see Daniel Berliner’s great paper here). LBJ was the ultimate reluctant supporter, who fought the original US FOI bill all the way and had to be persuaded out of vetoing it by his press secretary, who whispered gently in his ear and later recalled:
LBJ had to be dragged kicking and screaming to the signing… He hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.
He then went out, as Moyers points, to take all the credit for it.
LBJ may also offer FOI skeptics another lesson. Johnson was the ultimate backroom politician. His career, such as his spectacular time as Majority Leader of the Senate or passing civil rights legislation in the 1960s, was based on secrecy, information control and holding back on telling anyone more than they need to know, which was often far from the truth. And this, ultimately, was his undoing. His credibility gap on the Great Society and Vietnam stemmed from his being too secretive as reality exposed his untruths and many distortions.
Politicians naturally fear exposure or openness that may damage them. But hiding things or trying to back track brings pain too and Cameron’s decision to publish the benefits figures is a wise one, given the attention not disclosing them attracted. Can politicians like Michael Gove, who cast themselves in the mould of LBJ as populist warriors, go a step further and embrace the radicalism of FOI?