Disruptive or beneficial? Freedom of information in the UK

 

On 1 March, to some surprise, the Burns Commission concluded that the Freedom of Information Act was ‘generally working well’. Ben Worthy and Robert Hazell explain how the Commission came to this unexpected result and, drawing on the results three major research projects, argue that since it came into force in 2005 FOI has achieved its primary objectives of making British government more accountable and transparent.

Freedom of information was in the news again when the Independent Commission, chaired by Lord (Terry) Burns, delivered its report on 1 March.  To some surprise, the Commission concluded the Act was ‘generally working well’, and there was ‘no evidence that the Act needs to be radically altered’. This was not the expectation when the Commission was established last summer, with a membership of Lord Burns, Lord (Alex) Carlile, Dame Patricia Hodgson, Lord (Michael) Howard, and Jack Straw.  Their terms of reference invited them to consider whether there was a need for sensitive information to have robust protection; whether the Act adequately recognised the need for a ‘safe space’ for policy development; and whether change was needed to moderate the burden on public authorities.  All that suggested a report that was likely to restrict FOI in various ways, but that is not what has happened.  Why has the Commission come to this unexpected result?

The answer lies mainly in the evidence they received.  The Commission received over 30,000 written responses, with 29,334 coming via the 38 Degrees campaign website.  The media and civil society organisations like the Campaign for Freedom of Information were strongly supportive of the Act, and it was left to a few local authorities, police authorities and NHS Trusts to explain the burdens they felt it imposed.  No central government departments submitted evidence, so if the government had wanted to restrict FOI, its case went by default.

The Commission came down against introducing up-front fees, which would have reduced the volume of requests.  It recommended tighter deadlines for public authorities to respond to complex requests, and to conduct internal reviews; some strengthening and rationalisation of the exemptions for policy formulation; and legislation to clarify that the executive does have a final veto over the release of information. This was minor tweaking, rather than a radical review.  The government has, so far, agreed with the broad thrust of its recommendations, though they turned down the option of legislation to tighten the veto, perhaps because of parliamentary arithmetic.

How can this be squared with the claims of Tony Blair that the law is one of his greatest regrets, or David Cameron’s reference to FOI as just another ‘buggeration factor’? The single most powerful factor was the response of the media. Fears of diluting the Act generated unified criticism across the media including the Sun, the Guardian, the Daily Telegraph and the Daily Mail, with apersonal editorial from the head of Associated Press attacking any attempt to cut back on FOI. There was also resistance in parliament, with opposition MPs forming a cross-party counter commission in December 2015, vocal opposition on the Conservative party backbenches, and backing from a post-legislative review by the Justice Committee in 2012 which concluded that FOI was a vital part of democracy.

So what does the data tell us about FOI ten years in? In terms of numbers the UK has a relatively high use of FOI, rising steadily across central government by around five per cent a year from 30,000 in 2005 to 46,000 by 2014. Many more requests are made to local government, with 70-80 per cent of requests made to local councils, in excess of 200,000 per year.

We have conducted three major studies of the operation of FOI, evaluating its impact on Whitehall, local government, and parliament. Our studies concluded that FOI has achieved its primary objectives of making British government more transparent and accountable. We now know much more about a vast range of subjects from nuclear convoys to ministerial gifts, and from parking fines to councillors’ expenses. The most high profile example of FOI making politicians accountable was the 2009 MPs’ expenses scandal that helped trigger MPs stepping down and resignations. At a more local level, in 2012, requests led to the resignation of an entire parish council in Walberwick in Sussex.  Day to day, FOI has become a tool for information collection at all levels, by citizens pursuing private interests, by organisations conducting a wider campaign, or by companies chasing government contracts.

But we also concluded that FOI had not achieved its secondary objectives, of increased public participation, better public understanding of government decision making, or increased trust in government.  If anything trust has decreased, especially as a result of the MPs’ expenses scandal.  This is not necessarily a failure of FOI, but a recognition that in these respects FOI was over-sold.  FOI was never going to be a magic cure for the ills of modern government.  Shifting levels of participation and public trust are complex and FOI alone is unlikely to make a difference.

If FOI hasn’t realised all its supporters’ hopes, nor has it realised its opponents’ worst fears. It has added to the burdens on public authorities when their resources are being drastically reduced; but it has not had any significant impact on government decisions or decision-making processes.  In our research we looked hard for evidence of a ‘chilling effect’, but could find none. Despite former Cabinet Secretary Gus O’Donnell’s suggestion that officials are ‘working on Brexit plans in their head’ to avoid FOI, we found the chilling effect to be a myth (as did the Justice Committee). The quality of government records has certainly grown worse, but that is a consequence of more chaotic record keeping in an age of emails and mobile phones, and not of FOI. Despite this lack of evidence, the belief that FOI has a chilling effect continues to be strongly held.

So where will FOI go in the future? Debate will turn now to coverage of private contractors, an issue touched on by the Commission.  The question of costs will not go away, but no government can change the UK’s generous fee regime without parliamentary approval. There will always be ‘fighting on the borders’ and struggle. One academic saw openness as a pharmacon: ‘it heals in correct doses and kills when the doses are too high’.

To read our full article ‘Disruptive, Dynamic and Democratic? Ten Years of FoI in the UK’ in Parliamentary Affairs, click here.

About the authors

Dr Ben Worthy is Lecturer in Politics at Birkbeck University London and a former Research Associate at the Constitution Unit.

Robert Hazell is Professor of Government and the Constitution at the Constitution Unit.

Posted on March 9, 2016 originally on the website of  The Constitution Unit

FOI Commission Report: Forward or Backwards?

                                                     [thanks to FOI man for the image]

It looks as though the great FOI reforms of 2015-2016 have come to pass in a rather more limited way, as Cabinet Office Minister Matthew Hancock reassuringly puts it:

“After 10 years we took the decision to review the Freedom of Information Act and we have found it is working well…We will not make any legal changes to FoI. We will spread transparency throughout public services, making sure all public bodies routinely publish details of senior pay and perks. After all, taxpayers should know if their money is funding a company car or a big pay off.”

The Commission itself argued that

‘…the Act is generally working well, and that it has been one of a number of measures that have helped to change the culture of the public sector. It has enhanced openness and transparency… there is no evidence that the Act needs to be radically altered, or that the right of access to information needs to be restricted. In some areas, the Commission is persuaded that the right of access should be increased’

It does, however, add

‘…the Commission is persuaded that there are areas where the Act is insufficiently clear, or where uncertainties have grown up around its operation [and] aspects where decisions and interpretation appear to have departed from the original intentions behind the legislation. The Commission is therefore making a range of recommendations to improve clarity and certainty around the operation of the Act. We do not expect that these will have a dramatic impact on the use of the Act, or on the range of information which is made available under it.’

So what could happen?

There will be, according to Matt Hancock’s statement, ‘no legal change’ but they have agreed to some of the recommendations but are still thinking about others. However, a number of these changes will have a legal effect and do look, to my untrained eye, like alterations…

Limits on internal review

Cut to 20 days

Publications of FOI statistics

Across bodies the Commission recommends ‘government legislates to impose a requirement on all public authorities who are subject to the Act and employ 100 or more full time equivalent employees to publish statistics on their compliance under the Act’

The government will ‘issue guidance in the revised Section 45 Code of Practice to set a standard that public authorities with 100 full time equivalent employees or more should publish such information.’

Section 35 and 36 Redrafted

‘….to more closely match the exemption in the Environmental Information Regulations 2004, and that sections 35 and 36 are clarified so that material relating to collective Cabinet agreement is protected under a single exemption instead of being spread across two different exemptions [with ‘reasonable person’ clause removed from s36].

Change to the Veto

‘…we recommend that…the veto should be exercisable where the executive takes a different view of the public interest in release, and that the power is exercisable to overturn a decision of the IC. We recommend that in cases where the IC upholds a decision of the public authority, the executive has the power to issue a “confirmatory” veto with the effect that appeal routes would fall away, and any challenge would instead be by way of judicial review of that veto in the High Court’

The government appears to want no change (at the moment) ‘the Government agrees with the Commission’s analysis that Parliament intended the executive to be able to have the final say as to whether information should be released under the Act. In line with the Commission’s thinking, the Government will in future only deploy the veto after an Information Commissioner decision. On the basis that this approach proves effective, we will not bring forward legislation at this stage.’

Appeal system reform

‘First-tier Tribunal appeal too closely duplicates the full-merits assessment carried out by the IC, and we recommend that this appeal stage is removed. This would strengthen the position of the IC as final arbiter of the substance of cases, but (similar to the Scottish system) an appeal to the Upper Tribunal on a point of law would remain’

Costs

.’..we do not consider it appropriate to impose an up-front charge’ but clarify section 14.

The government agrees : ‘it is not appropriate to introduce fees for requests, over and above the existing narrow circumstances in which a requestor can be currently charged for disbursement costs. We appreciate that some public authorities are concerned by the burdens imposed on them by the Act and the associated costs’.

Outstanding Issues?

There are still some outstanding issues and a ‘small number of areas where the Commission felt unable to make recommendations’.

Extension

The Commission suggests extending FOI coverage to contractors over £5 million. Will universities be exempted from the Act? There has been some lobbying by some universities around this issue, on the grounds of competitive advantage of private institutions. The Commission claims there is ‘no convincing evidence for the exclusion of universities and higher education institutions from the scope of the Act’. Will FOI also be extended to charities? The media is not convinced and nor is the sector itself. The ‘Commission has not received persuasive evidence that the Act should be extended to charities in their own right, we consider that charities providing public services under contract should be treated in the same way as other contractors’.

Pay packets

The mention of the transparency of pay packets and spending details is interesting. Finding out most senior salaries, from the Cabinet Office to my local council, is relatively easy and is covered by a wealth of laws. This mention may relate to other bodies, such as health bodies or universities, where the Daily Mail’s FOI campaign on Vice Chancellors and their salaries has also spread to the local press. The Commission recommends ‘categories [that] should be understandable by the lay person, and could include for example, “company car”, “medical insurance”, and so on’. Let’s hope, by the way, that the government don’t think this will bring down senior salaries, as the evidence points to publication actually boosting them.

The government agrees to take ‘further steps will be taken to ensure this transparency is delivered across the whole public sector’.

Resource burden

‘We have not been persuaded that there are any convincing arguments in favour of charging fees for requests and therefore we make no proposals for change’. There remains, however considerable unhappiness at the alleged resource burden stretching from [some] local councils to the police. Whether such a burden exists and how big it is a matter of debate. But the fact that some bodies think it exists may mean the debate about what FOI costs will roll on.

No Chilling Effect

Despite endless discussion and Gus O’Donnell’s rather creative warning that officials are ‘working on Brexit plans in their head’ to avoid FOI, there appears to be no mention of it.

So what happened to the great FOI change?

As in the past, it seems that the sheer size and force of the opposition caused the government to think again on some of its stronger aims over fees. The Commission consultation received 30,000 pieces of evidence and triggered protest stretching from the Tory backbenches to the Church, the Guardian and, perhaps the icing on the cake, a personal appeal/warning by the editor of the Daily Mail.

So what now? Any legal change may also, perhaps, have proved too tricky for a government with a slim majority. This, combined with a strongly mobilised community defending FOI, may well also shape what (if anything) happens next…

The episode tells us about the powerful symbolism of FOI, and the dangers of being seen to be against what it represents, which can be too heavy a price to pay for a government. Being against FOI is to be against a right, against the idea openness and, by default, to be pro-secrecy and untrustworthy, as Hillary’s email controversy shows. Perhaps Matthew Hancock was finally swayed by our parish council FOI experiment?