Freedom – only if we can get the information
The Times, Law, February 06, 2007
By Heather Brooke
Two years on and the Freedom of Information Act has been enough of a success to warrant its possible demise.
While it was always naive to think that politicians would welcome open government, recent proposals have surprised even sceptics. Maurice Frankel, director of the Campaign for Freedom of Information, has described the Government as “taking a scythe to its own Act”.
The proposals put forward by the Department for Constitutional Affairs blithely ignore the recommendations of its parliamentary select committee that endemic delay and poor enforcement are endangering the law’s effectiveness. Instead, the Government held secret meetings and hired a private consultancy headed by Sir Andrew Turnbull, the former Cabinet Secretary, to make the case that the Freedom of Information Act is too expensive.
While these actions are bad news for democracy, they do at least show that the law was proving to be effective.
One of the strongest benefits of freedom of information (FoI) is that it has replaced propaganda and polemic with empirical evidence. Citizens now have a more factual and detailed understanding of problems facing local schools, councils, the criminal justice system, the NHS and, of course, central government. We know, despite constant rhetoric that the NHS is “better than ever”, that at least 13 NHS trusts are technically bankrupt, with no chance of meeting a legal obligation to balance their books. We know that prosecution rates vary across Britain in what amounts to a postcode lottery of justice, and that police increasingly use cautions for serious crimes such as rape and burglary.
We know the number of school pupils expelled for drugs and violence, how many of those on probation have committed violent crimes, which restaurants are failing their hygiene inspections and the details of many private finance contracts signed by public authorities. We have a list of post offices scheduled for closure, the surgery success rates of some surgeons and know that hospitals in England are each charging patients up to £1.5 million a year for parking.
In Scotland, which has a slightly different law and a tougher enforcement regime, citizens discovered the precise details of MSPs’ expenses, leading to the first head to roll from freedom of information – that of David McLetchie, the former Conservative leader, over questions about taxi misuse. Scotland now has one of the most transparent parliamentary expenses systems in the world, and perhaps it is no coincidence that claims have plummeted. In England, a Bill to exempt MPs from the Freedom of Information Act was sneaked through the Commons on January 19 without any debate. David Maclean, the former Conservative Chief Whip, introduced the measure in a Private Member’s Bill that would effectively allow MPs to keep secret the details of all their expenses.
Perhaps the greatest disclosure has been the full listing of European Union farm subsidies. We know now that the biggest subsidies go to the richest landowners and the biggest agribusinesses such as Tate & Lyle (£233 million over two years). An EU-wide movement for full disclosure in all countries is gaining ground (http://www.farmsubsidy.org/).
And there have been key Information Tribunal rulings: Alistair Mitchell v Information Commissioner (October 10, 2005) narrowed the exemption for court records so that those created by a private company (for example, a court reporting firm) are not covered and should be disclosed; in Derry City Council (December 11, 2006) – regarded by many as Northern Ireland’s greatest victory under the Freedom of Information Act – the tribunal ruled that the council should disclose details of an agreement between Derry City airport and Ryanair and that to do so would not breach confidentiality.
But there are far more things we do not know. The true cost of identity cards remains a secret as Tony Blair refuses to release the Gateway review and minutes of meetings. Nor do we have the detailed report of the fatal shooting of Jean Charles de Menezes, or the aftermath of the July 7 bombings. The public do not have access to detailed listings of crimes, nor easily accessible court records or writs. It is still difficult to get direct contact details for public servants or a detailed breakdown of expenses claimed by MPs south of the Border.
Even so, an empowered, informed electorate utilising its right to know is proving too much for some politicians. The first proposed change to the law will allow the Government to aggregate campaigners, journalists, lawyers and academics according to their “legal body” and refuse requests made by the same individual or organisation if the combined cost of answering their requests exceeds the limit of £600 for central government and £450 for other public bodies. This would ration requests to possibly just one per quarter to the same authority.
Added to this, Lord Falconer of Thoroton wants to include in the cost the time spent consulting, reading and “thinking” about FoI requests, thus providing an incentive for making the system as bureaucratic, complex and unwieldy as possible. The people most affected will be those seeking out meaningful and important information in the public interest. In the US, these groups are eligible for a fee waiver; in the UK they are targeted for special obstruction.
The proposals were intended to go through as secondary legislation but after sustained criticism, the Government announced last December that it would hold a public consultation that will end on March 8. It has not set a date for the regulations to be introduced. The consultation paper is available on http://www.dca.gov.uk/.
Meanwhile, the Cabinet is apparently split on whether to back the Private Member’s Bill. The Lord Chancellor has told ministers that to exempt MPs from FoI inquiries will damage public confidence in the principles of open government and add to the perception of its “being increasingly secretive”.
So two years on, freedom of information stands at a crossroads. The British FoI law was always the poor relation of the far more democratic laws of Scandinavia and the United States, but if even this dim beacon of democracy is extinguished we will have to reconsider seriously whether we can call ourselves an informed electorate.
The writer is author of Your Right to Know (second edition, Pluto Press)
Covers 100,000 public bodies including public services contracted out to private companies
Generally requests are free for the public apart from postage and photocopying
Law creates a statutory duty on public bodies (Section 16) to provide advice and assistance to help requesters to formulate their requests
No new public bodies designated under Section 5 of the Act despite repeated promises
Central clearing house creates another layer of secretive bureaucracy
Public interest extension abused with impunity
Information Commissioner failing to enforce the law in a timely way