Should policy discussions be kept under wraps?

This article by the Campaign’s director, Maurice Frankel, was published in The Independent on 28 March 2008.

Should policy discussions between officials be disclosed under the Freedom of Information (FOI) Act? Or should they be withheld to reassure civil servants that they can speak frankly, safe from the press and public’s prying eyes?

These issues were central to two recent High Court cases. Each involved the Government challenging rulings by the Information Tribunal that such material should be disclosed.

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FOI – the first year

This article by the Campaign’s director, Maurice Frankel, appeared in Press Gazette on 13 January 2006

During more than 20 years of campaigning for a freedom of information act, two questions repeatedly nagged me. The obvious one: would Britain ever get an FOI Act? And the more troubling one: if we did, would it be worth having?

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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.

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FOI and journalists

A version of this article by Maurice Frankel appeared in Press Gazette on 17 December 2004

After a four year delay to allow public authorities to prepare, the Freedom of Information Act finally comes into force on January 1st. It should provide journalists with a valuable tool for looking behind the gloss and spin at the actual documents in authorities’ files. Some authorities accept that they will have to adopt a more open stance and are likely to respond positively to press requests for information. Others will carry on as before, until forced to do otherwise.

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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.

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Your new rights to information

A version of this article by the Campaign’s director, Maurice Frankel, appeared in The Guardian on 14 December 2004

On January 1 the long-awaited Freedom of Information Act finally comes into force. The Act gives the public important new rights to the information held by public authorities. Worried about possible changes to your local school or hospital? The Act should allow you to see the evidence for them. Want to know whether the police are doing enough about burglaries? Use the legislation to probe their response times and clear-up rates. Unhappy about a regulatory body that never seems to do anything when people complain? Ask for their internal guidance on handling complaints and see their staff are doing what they’re supposed to do.

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FOI: ‘to deter malpractice’

A version of this article appeared in the March-April 2004 edition of Free Press journal
published by the Campaign for Press and Broadcasting Freedom.

“A government which pursues secret aims, or which operates in greater secrecy than the effective conduct of its proper functions requires, or which turns information services into propaganda agencies, will lose the trust of the people.” Despite its contemporary ring this is not a recent quote: it comes from the 1972 Franks report on the old Official Secrets Act. It shows how long the dangers of excessive secrecy to government itself have been recognized.

The theme was taken up by the recent Phillis report into the government communications service. The report argued that, properly implemented, the Freedom of Information Act would deter partisan reporting and spin and provide an essential opportunity for the government to rebuild trust. But it warned that some of the Act’s shortcomings could make things worse. In particular, it called on the government to voluntarily renounce the ministerial veto which allows ministers to overrule the Information Commissioner in key areas. Unfortunately, the government has refused to do so.

The Hutton report did not directly refer to the issue of secrecy, but the openness of the inquiry itself made the point far more eloquently. By the time the report was published, the public had seen the evidence, understood its implications and appreciated how misleading the government’s own account of its conduct had been. Remarkably, none of this was reflected in the Hutton report itself. But this only served to increase the scepticism of a public which had seen the material itself. As William Rees-Mogg put it in The Times “Public opinion has overturned Lord Hutton on appeal”.

One of the purposes of an FOI Act is to deter malpractice in government and allow the public to check that authorities are doing their job properly. Many requests will be prompted by a suspicion – perhaps unjustified – of some government shortcoming. An authority which fails to respond openly can only reinforce the belief that something disreputable is being hidden. But an authority which goes out of its way to answer properly, even if the news is not all good, has a real chance of persuading people that it is trying to address, not cover up, its problems.

Alastair Campbell, the prime minister’s former press chief, in his post-Hutton statement may have put his finger on a real issue when he said: “If the public knew the truth about politicians they would be pleasantly surprised”. If this is true, then the secrecy which too often characterises government’s behaviour must be deeply counterproductive, serving only to conceal how conscientiously the system works. It can only be in the government’s interests to let the public see more. Of course, if Campbell’s dictum is not true, the case for FOI as a check on misbehaviour becomes greater than ever.

Maurice Frankel is director of the Campaign for Freedom of Information

Publication Schemes Report

This paper examines central government publication schemes and highlights some examples of good practice.

Progress magazine article

This article by the Campaign’s director, Maurice Frankel,
appeared in the Jan/Feb 2004 edition of Progress, a Labour Magazine

By the time of the election, the Freedom of Information Act will be up and running. Will we find government brightly illuminated by the new right to know? Or business as usual, with inconvenient facts easily hidden?

Freedom of information is a symbol of honesty in government. It helps deter governments from promising one thing and secretly doing another. It provides a safeguard against improper influences on decisions and a check on arbitrariness, misconduct and substandard public services.

The value to the citizen is obvious: but why should government embrace the legislation? The answer is that trust in government has plummeted to new depths. In 2000, only 16% of people said they trusted governments of any kind to put the country’s interests above their party’s. Ministers cannot do their job – let alone hope to re-elected – if people do not believe them when they tell the truth, dismiss news of improvements as spin and assume an ulterior motive behind every decision.

What will happen in January 2005 when the new law kicks in? The Act itself has many of the ingredients for an effective right of access. But it also has escape clauses which could undermine key requirements. Much depends on the spirit in which authorities approach the legislation.

Those that accept FOI as a legitimate right, necessary and desirable in a modern democracy, will enhance their public standing. They are more likely to be seen as conscientious and responsive to the public’s needs and to be given the benefit of the doubt when taking difficult decisions.

Those that see it as a low priority and fail to prepare for it or resist reasonable requests will stoke up public suspicion about their activities. They will attract increasing numbers of requests, complaints, and enforcement proceedings, damaging their reputation and credibility.

This is not an issue on which government itself can afford to be neutral. While ministers at the Department for Constitutional Affairs appear to take the subject seriously, the same is not always true elsewhere – and Downing Street itself has often appeared hostile to the measure.

One thing above all else has symbolised government reluctance: the ministerial veto. Ministers can overrule the Information Commissioner if he orders them to disclose information under the Act’s critical ‘public interest test’. Why should ministers need this power, when other public authorities do not, and when the Act already allows decisions to be appealed first to a tribunal and then on a point of law to the courts?

By insisting on this massive loophole ministers highlight their own doubts about freedom of information and undermine public confidence in the legislation. If they want to get this reform off to a proper start, the best thing they can do is abolish the damaging veto.

Inside Information

A version of this article appeared in the Feb 2004 edition of Public Service Magazine
published by the First Division Association.

The final countdown has begun. In 12 months time, the Freedom of Information Act will finally come into full force. Public authorities have already had three years to prepare. How well will they meet the challenge?

Only a minority have been steadily working towards implementation. Some have barely looked at the legislation let alone begun to prepare for it, assuming that they are already as open as they need to be. And while many authorities have knowledgeable and committed FOI staff, too often they are struggling against a palpable lack of commitment from the top.

So what should they be doing? First they should appreciate that FOI is not just another legislative burden but an opportunity to demonstrate that they deserve the public’s confidence. An open authority can enhance its public standing by showing that it can justify its decisions and is willing to acknowledge and tackle problems rather than conceal them. But a body which gives the impression of being secretive and unresponsive is likely to generate suspicion, complaints, hostile press coverage – and even more FOI requests.

One starting point is records management. If someone asks for a record will the authority be able to find it? No-one will be impressed to be told “we have lost them”. At best it will suggest inefficiency, at worst a cover-up. If records can’t be found in response to an FOI request they won’t be available when the authority needs them for its own purposes. Work done on this score should benefit the authority across the board.

Authorities need to make sure that their staff understand the Act. Any written or emailed request for information, of any age, will be a valid FOI request, even if the applicant does not mention the Act. The onus will be on the authority to apply the law. That means that all staff dealing with the public, not just FOI specialists, must be trained. Otherwise authorities will find the Information Commissioner at their door demanding to know why they are ignoring the law.

The authority’s attitude to disclosure will be critical. An authority whose first question is “what exemption can we apply?” will probably find one – but risk being overturned by the Commissioner to a fanfare of adverse publicity later. The real questions should be: “will disclosure be damaging?”, “what reason do we have for believing that?” and “is its release nevertheless in the public interest?”. The fact that the information has always been withheld in the past may have reinforced the view that disclosure would be harmful. Challenging such long-standing assumptions may not be easy.

An authority which waits for January 2005 to start this process will have missed the boat. Change should have begun with the authority’s publication scheme, the requirement to list classes of information that it will regularly publish. Unfortunately, most ducked the challenge and produced timid schemes made up solely of already available material. Instead of beginning the transition to a new regime, they reinforced existing boundaries.

A high priority for authorities should be to examine how they currently deal with requests – including those made in ordinary correspondence. If they are overlooking requests or withholding information that they could be releasing, they will probably carry on doing so when the Act kicks in. The necessary change in culture does not happen overnight. They should put these problems right now.

FOI is a chance for authorities to enhance their public reputation by showing that they can be trusted to tell the truth. If this is really the case, why wait another 12 months to demonstrate it?

Maurice Frankel is director of the Campaign for Freedom of Information