FOI

Tony Blair​ ’s long-winded memoir A Journey (2010) is strikingly light on self-recrimination. He regrets ‘with every fibre of my being’ the hundreds of thousands of deaths in Iraq, but ‘can’t regret the decision to go to war’. George W. Bush was ‘a true idealist’. Even Silvio Berlusconi comes in for praise. Blair did, however, lambast himself for one decision made in office:

Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.

Blair, not for the first time, exaggerates. The Freedom of Information Act, passed in November 2000, was the result of decades of hard-fought campaigning, inside and outside Parliament. By the time he became leader in 1994, Labour had long been committed to enacting legislation that would allow anyone to request information held by public bodies. But far from embracing FOI in office, Blair dragged his feet. The act only came into force in 2005, more than four years after receiving royal assent. Blair was said to have directly intervened to delay its implementation. David Cameron later described FOI as a ‘buggeration factor’ that ‘furs up’ the arteries of government.

It’s hardly surprising that FOI is unpopular in Downing Street. The MPs’ expenses scandal emerged from documents prepared in response to an information request to the House of Commons. FOIs have revealed that more than 350 serving officers in the Metropolitan Police had criminal records, that the government was spending billions on private management consultants, and that the Thatcher administration concocted a plan to search for the Loch Ness monster using a pod of dolphins.

The majority of requests are made by members of the public, but FOI is often caricatured as the preserve of lazy journalists. Natascha Engel, a former Labour MP turned political consultant, wrote in the Critic in October that hard-working hacks used ‘to spend hours knocking on doors’ but can now ‘submit a stack of FOIs, then sit back and wait twenty days for the fact-checked headlines to land in [their] inbox’. The reality is very different. A recent report by openDemocracy – which I was involved in writing – found that prising information out of central government has become increasingly difficult. In 2019, Whitehall departments rejected more FOIs than ever before, citing excessive cost (£600 is the maximum) or one or other of the 24 exemptions available under the act, which range from national security to commercial confidentiality. Rejections are frequently overturned on appeal to the regulator, the Information Commissioner’s Office. Engel’s jeremiad followed an ICO ruling in June that the government had to retrieve and release emails she had exchanged with the fracking industry while shale gas commissioner and subsequently deleted. The initial FOI request had been made by Greenpeace in January 2019. (The ICO found no evidence that Engel was trying to prevent disclosure of the emails but said there had been ‘very serious and egregious record-keeping and management failures’.)

Even when it is released, material is often redacted and I have more than once received hundred-page documents entirely blacked out. The government makes regular threats to curb FOI but major legislative rollback has, so far, been kept at bay. The system remains free to access and easy to use: requests can be made by email, letter, phone or social media. Most attempts to rein in the scope of the original act have foundered: in 2007, the Tory MP David Maclean introduced a private member’s bill to exempt parliamentarians from FOI, but it failed in the House of Lords. Royal aides successfully lobbied for an amendment to exempt correspondence from ‘the sovereign, the heir to the throne and the second in line to the throne’ in 2010, but a later commission appointed by Cameron unexpectedly recommended only minimal changes to the act. (A high-profile ‘Hands off FOI’ campaign backed by, among others, the Daily Mail on its front page, may have helped.)

Rather than enact headline-grabbing restrictions on access to information, government has used – and abused – the FOI process to frustrate disclosure. The Cabinet Office, the department that has the most to do with FOI policy, runs a little-known unit that vets ‘sensitive’ requests and co-ordinates responses from different departments. This ‘clearing house’, which has been in operation since the act came into force in 2005, compiles the names of journalists and campaigners who have submitted FOI requests to government departments on a daily list that is passed around Whitehall, even though requests are supposed to be ‘applicant blind’. (Legal experts say the lists are probably a breach of data protection legislation.) The unit advises departments on ways to avoid releasing information: when Jason Evans, a campaigner whose father died in 1993 after receiving blood infected with HIV and hepatitis C, requested files from the Treasury about contaminated blood given to haemophiliacs, the clearing house blocked the release for more than five months. Internal emails paint a picture of continual foot-dragging. One senior Cabinet Office official suggested releasing information in a ‘managed way’, comparing the situation to the Chilcot Inquiry into the Iraq War. So far, the government has insisted that all is as it should be. In early December, Michael Gove, the cabinet secretary, assured the Public Administration and Constitutional Affairs Select Committee that reports of a ‘secret clearing house’ were ‘highly coloured’ and ‘not correct’. (As education secretary, Gove and his adviser Dominic Cummings were upbraided by the information commissioner for conducting official business on private email.)

The government’s belligerent approach to FOI has even angered some of its own backbenchers. David Davis appealed to the ICO after the Cabinet Office refused his request for details of opinion polling conducted at the start of the pandemic. ‘Few things can be more public than a taxpayer-funded opinion poll, but they seem to think it is a state secret,’ Davis told me. The veil of secrecy extends beyond Westminster. The ‘cash for ash’ scandal in Northern Ireland revealed that both Sinn Féin and the DUP were keen to avoid writing anything down, in part out of fear of future FOI requests. In 2017, the Scottish information commissioner concluded that the devolved government in Edinburgh’s FOI procedures were ‘inherently wrong’ and ‘contrary to the spirit’ of the legislation, following reports that special advisers were screening requests for political damage. Last April, just weeks into the pandemic, the SNP administration passed legislation that tripled to sixty days the length of time public bodies could take to respond to requests. One Scottish minister even raised the possibility of suspending FOI entirely. The situation is little better in many non-departmental public bodies: Highways England told a journalist from the Times that releasing a database of its bridges ‘could assist in any terrorist targeting’. The information was finally disclosed, more than a year later.

Deprioritising FOI, and starving it of funding, is a highly effective and far less politically risky way to stymie access to information. Requests are supposed to be responded to in a ‘timely fashion’ but many public bodies respond long after the twenty-day legal limit. By the time information is released it is often out of date or of reduced value. The day after the Grenfell fire in June 2017, the Royal Borough of Kensington and Chelsea received a series of FOI requests asking for records of previous fire-related incidents, minutes of fire safety meetings and correspondence between key officials. More requests followed. The council ignored them. Such administrative silence puts the person making the request in a legal limbo. Without a formal refusal, they cannot ask for an internal review, the first step in the appeal process. The Grenfell requesters had to ask the ICO to intervene with a legally binding decision notice just to get the council to respond; even then information was often withheld, prompting appeals and more requests. The majority of citizens supposedly empowered by the Freedom of Information Act don’t have the expertise or, even more crucially, the time and resources to challenge such official intransigence. Most successful requests now come from a caste of expert users, in a handful of newsrooms or specialist businesses, who are able to go all the way to the courts.

Evasive public authorities face little threat of censure. The number of complaints about FOI requests being stonewalled has risen by 70 per cent in five years, but the information commissioner has never demanded that a public body stop ignoring requests. The ICO has issued only four enforcement notices in its history. We don’t even know which authorities it has concerns about: in 2018, it stopped publishing regular lists of authorities whose compliance it is monitoring. The regulator is directly responsible for some of the worst delays in the system, too. A successful appeal to the ICO now takes more than a year, on average. (One of my colleagues waited four years for an ICO ruling. A further appeal, to a tribunal court, can take even longer.) Part of the problem is money. The ICO’s budget has been cut in real terms by 41 per cent over the last decade, while its FOI complaint caseload has increased by 46 per cent. There are also questions about the depth of commitment to Freedom of Information among the ICO’s top brass. The current commissioner, Elizabeth Denham, dedicated only half a page to FOI in her latest annual report. Such indifference is not altogether surprising: the commissioner raises twelve times her FOI budget from the levying of data protection fines on businesses. (During the pandemic, Denham was criticised for working from her native Canada. The news came from a FOI request.)

Britain was a late adopter of FOI. The first freedom of information legislation was introduced by the Swedish parliament in 1766. Two centuries later, John Moss pushed the Freedom of Information Act through the US Congress. American journalism forums are often peppered with tales of FOIA intransigence. In his quixotic new book, Baseless: My Search for Secrets in the Ruins of the Freedom of Information Act (Penguin, $30), Nicholson Baker charts ‘the pathology of government secrecy’ through myriad frustrated FOIA requests about the US government’s biological weapons programme in the 1950s.

In many countries, FOI is accused of reducing transparency by encouraging a parallel, paperless bureaucratic system. In her piece in the Critic, Engel blames FOI for the rise of ‘sofa government’, in which the real decisions are taken off book. There is some truth in this. I have lost count of the number of times I have asked for minutes of ministerial meetings only to be told they don’t exist. But Britain’s kitchen cabinets existed long before FOI, and it is hard to square Engel’s dyspeptic vision of superannuated civil servants filling in endless transparency registers with reality. At fewer than 40,000 a year, the number of requests to government departments has remained remarkably static over the past decade. The annual cost of FOI across 120,000 public bodies is roughly the same as the upkeep of the royal parks. The vast majority of requests are made to local government, where some officials report that FOI has emboldened them to insist that elected representatives follow due process. Transparency suffered under austerity as trained FOI specialists were often replaced with inexperienced generalists. The situation is worst in Whitehall and the devolved administrations, where senior politicians are most wary of embarrassing disclosures and have the greatest opportunity to forestall them. Boris Johnson has presided over a culture in which accountability is disdained: in 2019, most transparency data – spreadsheets of such things as departmental spending and staffing – were published late.

The current culture of opacity is not unprecedented. FOI ebbs and flows as governments come and go. Periods of retrenchment have been followed by bursts of openness, often spurred by public pressure. The indefatigable Campaign for Freedom of Information has been pushing for FOI legislation to include the tens of billions of pounds spent with private contractors; their cause, supported by the ICO, has been given fresh impetus by a recent National Audit Office report that highlights widespread accountability failures in Whitehall’s pandemic procurement spending. ‘We successfully tied Tony Blair into FOI,’ David Clark, the former Labour minister and an architect of the original act, told me recently. ‘Now we need the government to abide by the legislation, because it’s information that belongs to the public in the first place.’