Too much freedom to block FoI requests is hampering progress

By Maurice Frankel

During more than 20 years of campaigning for a Freedom of Information Act, two questions repeatedly nagged me. The obvious one: would Britain ever get an FoI Act? And the more troubling one: if we did, would it be worth having?

Well, the act is now here and, despite some problems, it is certainly working.

We’ve seen thousands of FoI disclosures.

Mexican waves of stories have rippled across the newsstands as papers discovered they could obtain restaurant hygiene reports, figures about speeding police cars, parking fines, compensation payouts, attacks on authority staff, excluded pupils, staff suspensions, expenses claims and spending on contracts, consultants and headhunters.

The food industry’s efforts to persuade the Food Standards Agency to minimise publicity when withdrawing unsafe products have been revealed. So have minutes of the body that ran the Millennium Dome, discussing whether to shut it down only months after it opened. We’ve learnt how much the Child Support Agency has had to repay men wrongly accused of fathering children.

Universities’ investments in arms companies have been uncovered, prompting several to disinvest.

Significantly, nearly all the information provided under the act has been disclosed free of charge. Last year, Lord Falconer, the Secretary of State for Constitutional Affairs, succeeded in fighting off Whitehall pressure for heavy FoI charges. But a review of fees was promised after the act’s first eight months and the issue is back on the agenda and being taken seriously.

When fees under the Irish FoI Act were sharply increased in 2003, the volume of requests collapsed to a quarter of the previous year’s level. To put fees up now, before the act has taken root, would be a serious blow.

In certain areas FoI requests have been unfruitful. Asking for legal or policy advice invariably triggers an exemption. Requests about old, but technically “open”, police investigations tend to be turned down.

Questions about the background to current Government decisions are often batted away with an excessively broad refusal.

Sometimes refocusing a request to sidestep an exemption will do the trick.

Discussing such options with an authority’s FoI staff is often worthwhile.

Some have adopted a positive approach, working to persuade their less enthusiastic, more senior colleagues to open up. Even so, some newsworthy disclosures may still be contentious from the authority’s perspective. A little credit in the press coverage may help reinforce the positive tendency.

In other authorities, FoI is still an unwelcome intruder. Responses tend to be bureaucratic and slow; exemptions are invoked with little thought but an iron grip; and the act’s duty to consider the public interest in disclosure is reduced to a few boilerplate phrases.

Disclosures which the authority recognises as harmless may be blocked to avoid setting a “precedent” for related but more sensitive information.

At this point all eyes turn towards to the Information Commissioner. In the four-year run-up to the act’s implementation, the commissioner has done vital work in encouraging authorities to adopt a positive approach. But in dealing with complaints his output has been modest.

By the end of 2005, 80 per cent of his formal decisions had been limited to issues of delays, disputes over whether information was held or procedural shortcomings. Only 24 decisions involved exemptions. Most of these upheld the authorities’ refusal to disclose – perhaps because these were simpler cases and the difficult questions are progressing more slowly. A substantial backlog of cases has now built up.

Some applicants have had complaints with the commissioner for six months with no sign of progress.

As a result, there has been little challenge to authorities which have misunderstood or abused exemptions – allowing bad practice to become more firmly entrenched. By contrast, the Scottish Information Commissioner has made a swifter start in addressing unreasonable exemption claims.

One area of progress has been on the unreasonable withholding of officials’

names. This has caused particular problems for journalists reporting on “golden handshakes” to senior staff or action taken against officials for misconduct.

Some authorities routinely withhold all names on data protection (DP)n grounds. Occasionally this is taken to absurd lengths: blacked out names have included those of a secretary of state, a chief constable, the Governor of the Bank of England and even Nelson Mandela.

A popular misconception is that no identifiable information can be disclosed without the individual’s consent.

In fact the DP test normally depends on whether disclosure would be “fair”, a question which takes into account the individual’s expectations about disclosure, the possibility of harm and the public interest.

In one case the commissioner ordered disclosure of the total payment to a former temporary head of finance at Corby Borough Council, which had been criticised as excessive by the Audit Commission. The commissioner found that there had been no agreement to keep the sum confidential; that senior office holders understand that scrutiny is likely; and there was a public interest in informing debate and preventing the problem recurring.

He has also ordered Calderdale Council to release the names of officials who visited Australia and New Zealand to recruit social workers. The council argued that the staff were not aware they might be publicly identified and had refused permission when asked. It feared the press might report their involvement “irresponsibly”. The commissioner found no evidence that disclosure would lead to “public acrimony” or risk to the staff. “Fairness does not necessarily depend on whether consent has been given,” he observed, concluding that “the public nature of their role” meant that scrutiny was legitimate.

That’s a start. But legitimate FoI requests are being blocked on a multiplicity of other grounds. Action to address these is now overdue.

Maurice Frankel is director of the Campaign for Freedom of Information.

Details of FoI training courses can be found at www.cfoi.org.uk