Anyone wondering what Justice Secretary Michael Gove’s plans are for the UK Freedom of Information Act should look across the Irish Sea to see what’s in store.
Ireland introduced its FoI Act in 1997. In part it was introduced to move away from the culture of ‘official secrecy’ - a culture that bred scandal, corruption and cover-up. But it also came as part of a wider move to open up government, and to make public policy making accessible, transparent and accountable to citizens.
The law was enormously successful, exposing corrupt practices in local government; helping citizens better understand their rights; and uncovering abuse and poor standards of care in nursing homes, to name but a few of its successes.
However six years after its introduction, the then Irish government filleted the Act, exempted important documents, and introduced fees for requests. The result was that FoI requests fell off a cliff, and investigative journalists all but stopped using the Act.
In 2008 Ireland experienced the worst economic collapse in the history of world capitalism. A fiscal tsunami hit the country, property prices crashed and unemployment skyrocketed. Only an EU/IMF bailout prevented national bankruptcy.
In the many post mortems and investigations that have followed, it became clear that the then Irish government and economic and financial regulators were warned in internal memos about their economic policies, but the warnings never became public because journalists or the public couldn’t get access to them.
Last year the Irish reversed course and have reintroduced a powerful freedom of information regime.
A costly, but perhaps valuable lesson was learned by the Irish: frank advice, no matter how bitter, is welcome, and that advice is best heard in the open.
Government needs to hear all the advice before making important decisions and the public needs to be confident that those we vote to represent us in parliament (and in government) are making decisions in our best interest. The best way to ensure that is through accountability.
The UK’s FoI regime is in large measure a carbon copy of the Irish legislation, and the reasons it was introduced here are very similar.
Historically in the UK, an ordinary citizen had no ‘right to know’ – so for example hospital records, school inspection reports, restaurant hygiene ratings, council spending, and MPs expenses were all hidden from the public.
FoI has been a monumental success in opening up Britain’s public bodies, in large measure that has been led by the news media, in particular local newspapers.
However it is incredibly worrying to see that, like what happened in Ireland, the Government here now plans to fillet the Act.
A Commission is currently asking for submissions on improving the legislation, but few open government and transparency campaigners will have any have any faith in its findings.
The public interest test – which allows requesters access to documents on public interest grounds, and access to important internal memos that actually shed light on how government makes decisions, are all likely to be removed.
The Government veto, overturned by the Supreme Court to allow the release of the Prince Charles’ ‘Black Spider Memos’, is likely to be strengthened, meaning a government of the day could block access anything embarrassing from being released, regardless of whether it was in the public interest to release that information.
Most controversially however, fees for making requests may be introduced and the cost limits reduced.
The impact on investigative journalism will be chilling. A £10 fee may not mean much to a large law firm but for freelance journalists and local newspapers, it would mean the end of their campaigning and valuable investigative reporting.
And it’s not just journalists who would be impacted: ordinary citizens, and charities and NGOs interested in health or the environment, for example, may not be able to access information. In Ireland MPs complained they were unable to represent their constituents properly as they couldn’t get access to official records, or if they could they were charged exorbitant fees.
FoI is not a panacea for all ills. And not all governments and public officials are corrupt. What properly functioning freedom of information regimes offer is transparency, accountability, and an assurance of trust.
Himalayan incompetence in local authorities has been exposed; excessive spending by public bodies and by public figures has lead to financial savings; ordinary citizens have been able to access services they had been previously refused; the parents of dead children have been able to get some closure on their loss by being able to access medical records.
Sure, FoI can be difficult to administer, and it has created difficulties for public bodies, but in large part it has been a tremendous force for good and has transformed the relationship between citizen and the state in the UK.
The real problem with FoI in the UK is not how it is being used, but rather that the culture of official secrecy still persists.
In a truly functioning open government regime, FOI should hardly be necessary. Public bodies would proactively publish files – in the digital age at the stroke of a mouse click – and material not routinely published could simply be requested. 10 years after the legislation came into force in the UK, that hasn’t happened.
Rather than filleting the legislation, it should be expanded. The cost limits should be increased annually in line with inflation, and requesters should be able to make a case on public interest grounds to waive cost limits for important applications.
Public bodies should be encouraged to routinely publish far more information digitally in the public interest, in particular open data which is often hopelessly out of date when it is released.
Private companies who carry out pubic work should be covered under FOI laws. And the Information Commissioner’s office should take a far stronger lead in championing the culture of openness.
The Irish know how costly a closed FOI regime can be. Don’t let the same mistakes happen in the UK.
Tom Felle is a lecturer at the Department of Journalism, City University London, and a former Irish Independent correspondent.
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