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