It’s Britain, so some doors are locked

A version of this article by the Campaign’s director, Maurice Frankel, appeared in The Independent on 31 December 2005

The Freedom of Information Act has begun to open doors – but is yet to be fully tested against those the government is determined to keep locked.

The good news is that we have a functioning Act which has produced a substantial amount of previously undisclosed information. Of course, plenty of requests have been refused. But this is Britain: what did you expect? The greater surprise is what has been disclosed. We have seen the Metropolitan Police Commissioner’s letter proposing to block the Independent Police Complaints Commission inquiry into the Stockwell shooting. We now know that the PowerderJect pharmaceutical firm, later owned by Labour minister Lord Drayson, failed to tell the Department of Health that it was producing substandard batches of BCG vaccine. The secret list of possible nuclear waste disposal sites drawn up in the 1980s has been revealed. Outside of central government there have been large numbers of releases about food safety, parking fines, safety hazards, violence in schools, expenses claims, contract costs and numerous other issues.

Most of this information has been released without charge. Even photocopying and postage charges have usually been waived. Unfortunately, higher fees for environmental information are being imposed by some authorities, taking advantage of weaker charging provisions in the parallel Environmental Information Regulations.

The Act’s free access cannot be taken for granted. A move to a higher charging scheme is already being discussed in Whitehall, a change which could stifle openness.

Delays have been a problem. Although the Act requires requests to be answered within 20 working days, many requests overshoot badly. The Home Office took eight and a half months before refusing one request. The Treasury meets the 20 day limit in only 43% of cases. Yet some departments deal with 80% of requests on time and the Department for Work and Pensions hits the target in 90% of cases.

How much has the culture changed? Some FOI officials are refreshingly positive about the Act. Others see FOI as a burden and an intrusion. The Ministry of Defence is generally in the former category. It answers two thirds of all requests in full and is diligent in complying with the Act’s duty to advise and assist requesters. Yet when asked for copies of any assessments of the implications of replacing Trident, the MOD refused to even say whether it held such material.

In some areas there is an obvious reluctance to open up, particularly about the basis for government decisions. Whitehall guidance says the “working assumption” should be to withhold advice, recommendations and options but to release background factual information. All too often everything, including the background material, is withheld. The Act requires disclosure unless openness would cause more harm to the public interest than good. But the Whitehall reflex – encouraged by a central clearing house which attempts to restrain unseemly enthusiasm for FOI – is too often to say no.

Some of these issues should be – or perhaps should have been – resolved by the Information Commissioner, who deals with complaints under the Act. But the Commissioner has a backlog of over 1300 unresolved complaints, many of which have been waiting months for an investigation to start. Although the Commissioner has issued some 120 formal decisions, the great majority involve procedural issues about delays or disputes about what information exists. Only 24 decision notices deal with the substantive issues and none of these involve the formidable series of exemptions relating to policy making, frankness of discussion or the “effective conduct of public affairs”. By contrast the separate Commissioner who enforces the Scottish FOI Act has issued 55 decisions involving exemptions, beginning the vital process of chipping away at the excessive use of these and other exemptions.

Note: since this article appeared, the UK Information Commissioner has issued his first decision notice dealing with the disclosure of information relating to the formulation of government policy. This required the Department for Education and Skills to release details of a board minutes on school funding. The DfES had claimed that its disclosure would deter officials across the whole of government from properly discussing policy issues.

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