Although there is no clear evidence of any government-wide, systematic resistance to freedom of information laws in the UK or elsewhere, there are examples of avoidance and resistance, often at very high levels and in sensitive situations. There appear to be numerous strategies to avoid or mitigate FOIs. Some clearly contravene the law while others run against the spirit of openness. Examples include:
Use of private email systems. In the UK, Michael Gove was found to be using a private system when he was Education Secretary, leading to an ICO ruling in 2012 clarifying the distinction between public and private communications (see below). Allegations have been made about other politicians trying to circumvent FOI through private emails, from Sarah Palin to various members of Donald Trump’s team, including, according to CNN, Steve Bannon, Jared Kushner and Ivanka Trump. Most famously, Hilary Clinton’s use of a private server and email may have violated the Federal Records Act and later archiving regulations, though whether she did this simply for convenience of access (as Clinton claimed) or to hide from FOI requests and potential Congressional investigation (as her opponents alleged) is unclear.
Non recording of information (known as the ‘Chilling Effect’). This type of non-minuted, informal mode of decision-making can take many forms, stretching from using phone calls, verbal decisions or disposable post-it-notes to having informal meetings entirely without records. The Swedish government, with the world’s oldest openness law, calls this the ‘empty archives’ phenomenon and mentions of ‘post-it-note’ approaches date back to the US in the 1960s and Australia in the 1980s. There was some recent evidence of non-recording in Scotland when, in November 2017, the Ferret unearthed evidence that the Scottish Environment Protection Agency asked for ‘verbal’ updates instead of written documents, mentioning FOI as a reason (see the emails here on page 11-12). This chain from 2008 shows a UK official apparently urging others to delete emails because of FOI.
Informal meetings, made famous by Tony Blair’s (pre-FOI) ‘sofa government’ style, are more difficult to prove. However, in March 2018, giving evidence to the RHI ‘Cash for Ash’ Inquiry, the Head of Northern Ireland’s Civil Service admitted that ‘the practice of taking minutes had “lapsed” after devolution’. The BBC quoted him as saying “Ministers liked to have a safe space where they could think the unthinkable and not necessarily have it all recorded” and the ‘DUP and Sinn Féin were sensitive to criticism and in that context, senior civil servants had “got into the habit” of not recording all meetings’. He said this was done on the basis that it was sometimes “safer” not to have a record which might be released under Freedom of Information.’ He did, however, qualify this and ‘agreed with the inquiry panel that when it came to ministerial decisions on matters of public money it should be recorded.’ Former Head of the UK Civil Service Gus O’Donnell had made similar claims for the UK Cabinet being ‘hamstrung’ by FOI, though relied on anecdote and hypotheticals to illustrate his point (see this analysis).
Involvement of press advisors and media officials. The Scottish Information Commissioner spoke of claims of ‘deliberate delaying tactics and requests being blocked or refused for tenuous reasons’. One study of more than 2000 ATIA requests in Canada by Professor Alasdair Roberts found exactly this happening, with ‘requests that were identified as sensitive, or which come from the media or political parties, found to have longer processing time, even after other considerations are accounted for’. Procedures within government focused on ‘giving special attention to politically sensitive requests for information’, ‘flagging’ difficult requests electronically and using communication officers and Ministerial offices as gatekeepers for releases. Similar claims were made in the UK for the ‘Clearing house’ that was intended to co-ordinate responses across government.
Timing, requesting and release. One approach seen in Ireland and elsewhere is for government departments to deprive journalists or others of scoops by publishing request responses online simultaneously. Alternately, releases can be buried by publication on a busy news day or at the end of a week. Even more creative has been the approach of the FBI, who recently asked that FOIA requests only be sent by fax (though the FBI FOI email appears to still exist).
One important point to make is that while high profile examples exist, mainly from politicians, we found officials were generally as fearful of not having a record as having one, with the pressure from bosses or potential judicial review to keep a record outweighing the danger from FOI. Research at local government level in Scotland and the UK found there to be a positive, professionalising effect on records.
Two problems: Is it happening? Is it FOI?
Any research in this area hits two major difficulties.
How do we know it is happening? It is unclear how widespread such activity is. Are the examples above are the tip of the iceberg or isolated misbehaviour? By its nature, it is very difficult to prove a negative (i.e. something didn’t happen) in terms of records or avoidance and is often reliant on anecdote. One study found many comments to ‘not record’ were often jokes or light hearted quips. However, the problem is that the myth could become reality. One previous UK Information Commissioner warned that constantly ‘talking about a chilling effect’ can make it a ‘self-fulfilling prophecy’, so when Tony Blair claims FOI laws make politicians ‘very cautious’ or David Cameron argues it is ‘furring up the arteries of government’ they could make it happen.
How do we know it is FOI? Isolating and disentangling FOI as the cause of the problem is almost impossible. Fear of leaks, the arrival of new technology, new decision-making styles and the key question of resources all influence how and if records are kept. Ex-Downing Street Communications Director Craig Oliver complained that accusations made during the Brexit referendum campaign that Cameron was avoiding FOI by using WhatsApp misunderstood that it was simply quicker and more secure than email. Concerns over the non-recording of information go back far into the past. As the Justice committee pointed out, the 2004 Butler report raised serious concerns over Tony Blair’s use informal meetings and ‘sofa government’ a year before FOI came into force. James Callaghan’s famous quip captures the nuances and grey area between official and unofficial disclosure: ‘I brief, you leak’.
What can be done?
There exists rules on records and destruction in almost all FOI laws (and Scottish FOISA has them in section 60 and 61). In March 2018 the first charges were bought for a Councillor in Thanet ‘blocking, concealing or destroying records held by Thanet council “with the intention of preventing the disclosure by TDC of information”. This also touches on rules around whether emails are archived or deleted and more generally what records are kept and for how long, issues that proved controversial recently in relation to Scottish care homes and a panel looking into paramilitary disbandment in Northern Ireland.
Some laws also cover private emails being used for public business. In 2012 the UK ICO, for example, created new guidance in wake of Gove email controversy, making clear that texts or emails are covered if ‘information “amounts to” public authority business’ or “generated in the course of conducting the business of the public authority”.
In 2017, former Scottish Information Commissioner Rosemary Agnew called for a ‘radical re-think’ around how FOI works in terms of disclosure, recording keeping and release, so bodies ‘invest in dissemination of information as a way of doing business’ rather than through requests.
The letter from Scottish journalists in 2017 called for a specific legal duty to record decisions. The UK information Commissioner has also championed the creation of a ‘duty to create records or “duty to document”…a positive duty in law to create records of significant decisions, actions and events’. That means public bodies must keep ‘records explaining and providing context to why a specific course of action was taken [including] Minutes of important meetings, decisions, that led to policy change and new initiatives’. Such a law exists in British Columbia following an email deletion scandal, though campaigners claim the law lacked teeth as it did not mandate the creation of records.
- Worthy, Ben and Hazell, Robert, Disruptive, Dynamic and Democratic? Ten Years of Freedom of Information in the UK (December 28, 2015). Parliamentary Affairs, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2708768
- Roberts, Alasdair S., Spin Control and Freedom of Information: Lessons for the United Kingdom from Canada (December 20, 2003). Public Administration, Vol. 83, No. 1, pp. 1-25, Spring 2005. Available at SSRN: https://ssrn.com/abstract=1308145