To celebrate 10 years of the Freedom of Information Act, Bilal Ghafoor (FOI Kid) reflects on its impact and ponders what the future holds for this important Act of parliament.
If you go onto the website or read the official publications of any government department, local council, NHS organisation, the one thing that almost all of the information will have in common is that it has been volunteered. And while the communications and press teams in many organisations do a great job, ultimately they are a prism through which an organisation shines out what light it wishes to. Most press releases or official statements do not contain raw data. Most organisations do not publish email trails that they are even slightly uncomfortable about.
The Freedom of Information Act 2000 came into force on 1 January 2005 and it has, in the words of the Justice Select Committee, which undertook a post legislative review of the Act, been “a significant enhancement of our democracy.” However, it went on to note that “we are not surprised that the unrealistic secondary expectation that the Act would increase public confidence in Government and Parliament has not been met.” This was, after all, while the fire of the MPs’ expenses scandal was still smouldering.
I continue to be struck by an observation I heard when I attended a Request Initiative event on FOI that all the complaints about the burden of FOI are irrelevant – public authorities hire FOI officers and spend money not on releasing information but on withholding it. Aside from personal data, which must be guarded, there is more truth to this idea than I would like.
I remember when I worked in FOI in a central government department, a Labour Secretary of State visited us. The first thing he did was apologise to us for bringing in the Act. It was not just Tony Blair who later thought it foolish. We in the FOI team (it seemed to be the natural home of a couple of a Marxists who had somehow joined the civil service), thought it to be utterly bizarre. How was it not a good thing (and not just because it kept us in employment)?
It is our tax, it is our society, these institutions are ours, the work they do belongs to us. It almost seems like a naïve assertion, but perhaps that is because it is so true. If we live in a democracy.
But there are dangers. The FOI Act, which was heroically worked on by the Campaign for Freedom of Information (which just celebrated its 30th birthday party – 20 years older than the legislation itself), came into force over a long period of time and the dangers are similarly slow but sure.
The Government’s response to the post legislative review highlighted that it wanted allow organisations to refuse multiple requests from the same person or organisation. At first glance, this might be ok – why should one person be allowed to harass an organisation with lots of requests? But what about a local newspaper wanting to make lots of requests to local organisations? How is a local newspaper supposed to survive on being able to make only a small number of requests in any one year to the local council?
There is a suggestion that ‘thinking time’ be included in cost limits for responding to a FOI. This means that any request of a new kind or for new types of information or invoking a new exemption will start to breach the cost limits and be refused. This encourages organisations to hire non-specialists. Or to copy in 15 members of staff into emails about FOI requests and to count thinking time 15 times over.
The chronic under-funding of the Information Commissioner’s Office (ICO) is another terrible problem. While the ICO’s basic stance seems to be to advocate the release of information and accessibility for all, in the latest triennial review of the ICO, its own submission to the Ministry of Justice proposed a charge for requestors wanting to use its services. This would be appalling. But I can see that the ICO is constantly frustrated by its tiny grant in aid (the organisation runs its entire FOI operation for less than many central government department’s communications and spin budgets) and that this proposal is a sign of its desperation.
Application of the Act has become complicated – most ICO decision notices and Tribunal judgments add nuances onto how we should apply exemptions. I love the complication, but I am also very drawn to an idea that was kicked around by others on Twitter that perhaps all of the exemptions should be discarded and everything become subject to a plain public interest test. This would include cost limits – if you ask for a lot of information, if it is in the public interest to provide it, it should be provided. Thanks to relatively recent developments in understanding of ‘vexatious requests’), where a request would be significantly disruptive, the Act allows for a refusal.
The FOI Act is not perfect. But I am still of the generation that compares it to Yes Prime Minister days of secrecy and am thankful to the Campaign for Freedom of Information and other advocates that we can now ask the people who formerly felt like our masters for our own information.
 Post legislative scrutiny of the Freedom of Information Act 2000 – Justice Committee Para 241, http://www.publications.parliament.uk/pa/cm201213/cmselect/cmjust/96/9602.htm.