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January 5, 2024

Freedom of information in UK sinks to new low

Journalists are increasingly frustrated by failures in government compliance with the Freedom of Information Act.

By Andrew Kersley

Government transparency is set to hit a record low as UK public bodies are granting just a third of Freedom of Information Act requests.

That figure of 34% – covering April to June 2023 – is a fall from the 39% figure recorded in 2022 and the 41% of granted requests in 2020 – a year that itself was previously labelled “the worst on record for government secrecy”.

On average, according to data sourced from official government transparency disclosures, public bodies responded to 77% of requests within the 20-day statutory deadline in the second quarter of 2023.

At the Foreign Office, 56% of requests received a response within the time limit.

Introduced in 2000, the UK Freedom of Information Act allows journalists and citizens a general right of access to all types of recorded information held by public authorities, with some exceptions. The general principle is that if the public interest in disclosure outweighs the public interest in secrecy, information should be released.

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But since then there has been a steady increase in the amount of rejections from public bodies. 

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Press Gazette analysed the last decade of government FOI data and found that the 34% figure recorded in the second quarter of 2023 puts it on track to be a record low for information disclosure. 

In the past decade, the number of resolvable requests being ‘granted in full’ has consistently dropped from a high of 55% in 2013.

“I’ve had requests that take five years to respond, and then just say: ‘Do you still want this?’" George Greenwood, an investigations reporter at The Times who has given evidence to a Commons commission on FOI, told Press Gazette.

"It took about two and a half years to get hold of the correspondence, between [Cabinet minister] Michael Gove and a donor on PPE.

“The big problem at the moment is just that government departments can kick things into the long grass by just breaking the law and not sharing information and the laws are not enforced.”

Greenwood added: “There are two kinds of stories you can do with FOI – reactive or investigative. And I think it makes doing reactive stories a lot harder and less likely to succeed than it should be.”

In its most recent annual report the Information Commissioner's Office, which has a remit to regulate FOI and mediate any disputes between public bodies and information requestors, reported an increase in the number of FOI complaints that have taken over six months to resolve.

“Departments have to be dragged kicking and screaming to comply with their duties. And the regulator is so underfunded that it can take much longer than it should to force them to act,” Greenwood told Press Gazette.

“If you're a 20-something graduate at a local newspaper in, say, Birmingham, what do you do? You have got no in-house lawyers or experts. You can read up on the law, but you’re not an expert. So all the time, you just give up."

Greenwood added: “The Cabinet Office is just awful, they refuse to reply to anything substantively unless forced. I literally just have to have a spreadsheet where [when] it gets 20 days, I just automatically take them to the ICO as I know they won’t respond otherwise."

The most recent annual ICO report noted that the “vast majority” of its cases that have lasted over a year concerned the Cabinet Office.

Since 2020, the Cabinet Office has had a poor reputation for transparency, after investigative news outlet Open Democracy revealed the department was operating a “clearing house” for FOI requests that controlled how Whitehall responded to queries and shared personal information about journalists.

Experts at the time warned that the “Orwellian” practice – which saw government departments and politicians sharing and vetting requests to "protect sensitive information" – could have been a breach of the law.

A Cabinet Office spokesperson told Press Gazette they were “committed to transparency” and that “despite receiving large numbers of FOI requests, the vast majority [94%] are responded to on time”.

They added that they “publish more information outside of the Freedom of Information Act than ever before”.

Infamous Cabinet Office FOI 'clearing house' lives on elsewhere

While the Cabinet Office’s ‘clearing house’ was eventually shut two years later after a Commons investigation and internal review, journalists told Press Gazette they have encountered similar setups at other government departments or police forces.

“There is a consistent trend to more resistance, more obstruction, less releasing of information from government,” said Martin Rosenbaum, a former BBC journalist and the author of Freedom of Information: A Practical Guidebook.

"One thing that has happened is the message that was coming from the top offers no encouragement whatsoever for openness.”

Since being appointed in January 2022, Information Commissioner John Edwards has been candid about the need to fix the FOI system and had promised to clear the complaints backlog.

“If you look at our overall performance, where we are now, we've gone from it taking us nine months to get an investigation allocated to clearing 95% of cases within six months,” said Warren Seddon, director of FOI and transparency at the ICO.

“Alongside bringing the caseload down, we have put a real focus on, arguably for the first time ever really, to proactively go out and address problems.”

The regulator has been making weighty interventions with bodies from the Environment Agency and the Ministry of Defence to councils in York or Croydon, leaving them facing enforcement notices or legal warnings for repeated failures.

In March the ICO warned that the Department for Work and Pensions was “systemically failing to comply with the law” over how it has dealt with requests for information on disability benefits, universal credit and claimant deaths.

In September, the ICO chastised the Departments for International Trade and (what was then) the Department for Business, Energy and Industrial Strategy for “persistent failures” in their FOI process, including repeatedly failing, despite adequate staffing, to meet legal deadlines for responses.

In the BEIS case, the ICO found that the department had been letting special advisers – who are political appointees – review and assess requests that were made for information.

Rosenbaum highlighted multiple recent tribunals in which judges claimed the ICO was siding too readily with government departments that were maliciously failing to share information.

In one ruling concerning the Home Office’s refusal to share the outcome of an Equality Impact Assessment, a judge said “it is to be regretted that the ICO naively accepted the disingenuous arguments of the Home Office at face value”.

There are questions as to whether the ICO’s current powers go far enough. For example, the regulator is unable to fine bodies that repeatedly fail to disclose information.

Several of those we spoke to suggested giving the regulator the ability to take more serious legal or criminal proceedings against repeat offenders.

One thing agreed upon by everyone we spoke to, including the ICO itself, was the need to extend the remit of the FOI Act to cover private companies that have been hired to run government services.

In theory, the government is receptive to the need for improvements to FOI. But the Cabinet Office’s new ‘information rights user group’ aimed at looking into transparency failures has excluded journalists and campaign organisations from offering input.

One in seven people have made an FOI request at some point in their lives, according to the ICO, and the system has allowed for some of the biggest scoops of the last two decades – but now it increasingly feels like the system is struggling to function.

“It's absolutely fundamental that the public should know what their taxpayer's money has been spent on, and how ministers make decisions that affect the public's lives,” said Jenna Corderoy of Open Democracy.

“I can't see a way in which you can run an effective government when you aren’t being transparent.”

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Select and enter your email address Weekly insight into the big strategic issues affecting the future of the news industry. Essential reading for media leaders every Thursday. Your morning brew of news about the world of news from Press Gazette and elsewhere in the media. Sent at around 10am UK time. Our weekly does of strategic insight about the future of news media aimed at US readers. A fortnightly update from the front-line of news and advertising. Aimed at marketers and those involved in the advertising industry.
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