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Don’t be afraid: open the files

A version of this article by Maurice Frankel appeared in The Times on 14 December 2004

Less than three weeks until the Freedom of Information Act comes into force. From January 1, the public will have new rights to peer into a public authority’s files and check how well it is doing its job. People who want to know why they aren’t getting the service they expect, are unhappy with a proposal, or want to satisfy themselves that the right decision was taken, will now be able to see the paperwork or emails for themselves.

The FOI Act is only part of the story. The new Environmental Information Regulations provide a separate right to see environmental information. Amendments to the Data Protection Act strengthen individuals’ rights to see what is held about them in public authority files. All come into force on 1 January.

This substantial package of rights is easy for the public to use but demanding for public bodies. Applicants don’t have to say they are applying under the Act. Any written or e-mailed request for information is automatically an FOI request. For environmental information even an oral request will be valid. Staff will have to recognise that a request made in ordinary correspondence, or even in conversation, now triggers legal rights and has to be answered in 20 working days (though extensions in certain circumstances are possible).

Some old reasons for withholding information – “this is for internal use only” – won’t wash anymore. Dissatisfied applicants will first have to ask the authority to reconsider its decision, but will then be able to complaint to the Information Commissioner, who can order disclosure.

Access under the FOI Act will normally be free, apart from postage and photocopying costs, so long as locating and extracting the information doesn’t cost more than £600 in the case of central government or £450 for other authorities. Authorities will have to provide reasonable advice and assistance to requesters. This may include helping people to identify what kind of documents they hold and to target requests that would otherwise be too general to deal with.

The Act was passed in November 2000 but has been delayed to allow authorities to prepare. Those that haven’t may be in for a rough ride, both from the Commissioner and the public. Research from the Committee on Standards in Public Life shows that most people believe that officials are unlikely to tell the truth or admit to their mistakes. This may be an unfair generalisation but this is what will come to mind if authorities don’t deal with requests as the Act requires, or refuse information without justification.

To the public, secrecy means that there is something to hide: that officials can’t justify their decisions, are concealing their errors or have ignored legitimate concerns. They will be sceptical about what the authority tells them, less likely to follow its advice or believe its successes.

But an open approach encourages the opposite response. An authority that does not attempt to conceal information, and explains rather than hides uncomfortable facts, is more likely to be trusted by the public. If people can see for themselves the complexities of an issue, they are more likely to understand why progress can be slow. FOI is a chance to strengthen public confidence that few authorities can afford to ignore.

What you need to know

  • The FOI Act applies to some 100,000 public authorities, including government departments, local councils, the NHS, individual GPs, the police, the Armed Forces, schools, colleges and universities, regulators, quangos, advisory committees and Parliament.
  • All written or e-mailed requests for information should be dealt with under the FOI Act. Requests for environmental information or the applicant’s personal data are dealt with under parallel legislation.
  • Authorities have up to 20 working days to respond.
  • Information can be withheld only where a specific exemption applies. In most cases even exempt information has to be released where the public interest in disclosure is equal to or outweighs the public interest in confidentiality.
  • If the information is refused the authority must say under which exemption, why the public interest favours confidentiality and tell applicants how to appeal.
  • Every authority should have its own complaints procedure allowing disputed decisions to be reconsidered at a more senior level.
  • The Information Commissioner can order disclosure. Failure to comply with an order would be treated as contempt of court.
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