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FEATURE

FoI Under Threat

The Freedom of Information Act came into force in January 2005. One decade on, how is FoI viewed by politicians and publishers? Jon Slattery investigates.

Jon Slattery

Posted on: 26 November 2015


“Powerful stories in the public interest.”

 

Publishers and journalists should be celebrating the tenth anniversary of the Freedom of Information Act and highlighting all the great stories it has helped expose.

Instead, klaxons are going off as alarmed campaigners for Freedom of Information warn the government has ruined the birthday celebrations by announcing a review, which they believe is aimed at rolling back the FoI Act.

Rather than taking credit for an act, which is popular with the public and seen to be on their side, some politicians have claimed it was all a ghastly mistake.

None more so than Tony Blair, who oversaw the introduction of the FoI Act in 2000 when prime minister, and wrote in his autobiography, A Journey: "Freedom of Information Act. Three harmless words. I look at those words as I write them, and feel like shaking my head 'til it drops off. You idiot. You naive, foolish, irresponsible nincompoop.”

Blair claimed FoI was “a dangerous act", because governments needed to be able to debate and decide issues in confidence.

Under review

Just before parliament took its summer break, the government announced a new commission to review the FoI Act. It is thought this could lead to measures to prevent the disclosure of government policy discussions; strengthen the ministerial veto; and reduce the act’s alleged financial and time “burden” on public authorities.

What has alarmed campaigners is the case for strengthening the act is not on the agenda. The cross-party commission is chaired by Lord Burns, and will look at whether there should be a "safe space" within the legislation to protect the advice given to ministers by civil servants and whether changes are needed to "moderate" the demands placed on public authorities by the act. It is understood the commission will consider introducing charges for applications for information for the first time.

The five-strong panel - which also includes former Conservative Party leader Lord Howard and Labour ex-home secretary Jack Straw – said it would publish its findings by the end of November. The other members of the commission are Ofcom chairman Dame Patricia Hodgson and the former reviewer of counter-terrorism legislation, Lord Carlile.

Responsibility in government for FoI is now being transferred from the Ministry of Justice to the Cabinet Office, which has a poor reputation for handling FoI requests.


Maurice Frankel: “The government is clearly proposing to crackdown on FoI.”
Maurice Frankel, director of the Campaign for Freedom of Information, says the commission represents a major attack on the right to know. “The government is clearly proposing to crackdown on FoI. Ministers want certainty that policy discussions will not only take place in secret but be kept secret afterwards. They don’t like the fact that the act requires the case for confidentiality to be weighed against the public interest in disclosure.”

Frankel also says the media have played a critical role in showing FoI works. “They have not only opened up streams of important news stories but demonstrated to the wider public that FoI works and is worth using.”

While FoI may be seen as a cost burden by authorities, it can be argued exposure of money wasting projects promotes efficiency, as does the knowledge that decisions will be open to public scrutiny.

Frankel says it is internal discussions within national government that concern the politicians. “What will be withheld will be the internal discussions and assessment of policies not just advice.” He believes a whole range of information relating to decisions, including the influence of lobbyists, could become protected from disclosure.

It is not just the Campaign for FoI that is alarmed. The Times, in a leader, backed Frankel’s view. "Freedom of information is under attack. The truth is that there is no good time to weaken the FoI act and there is no good reason to. In the ten years of its existence it has become an essential bulwark of both government transparency and accountability."

Santha Rasaiah, the News Media Association’s head of legal policy and regulatory affairs, warns: “The Freedom of Information Act requires extension, not restriction. It already allows a space for frank policy advice, prevents vexatious use and avoids onerous costs burdens. We must not allow the act’s tenth anniversary to be marked by an attack upon the act and a retreat into official secrecy.”

“The act has helped do what good journalism aspires to: holding the powerful to account.”

FoI successes

So, what has the FoI Act ever done for us?

* National newspapers: The MPs’ expenses scandal exposed by the Telegraph began with the determination of freelance investigative reporter Heather Brooke who made FoI requests about MPs’ expenses, staff travel and second homes allowances. The Commons resisted at every turn and it was a battle that went all the way to the High Court, where it was finally ruled all the information should be provided. The full expenses data was then leaked to the Telegraph without the “redactions” MPs had wanted to impose and a claim for a duck house became infamous.

Via FoI requests, we have learnt about cracks in the nuclear reactor at Hinkley Point B, police using Tasers against children, hospitals incinerating aborted foetuses, and aides to Michael Gove taking part in a “toxic” email campaign, the killing of Afghan civilians by British troops, and the Prince of Wales’s lobbying of ministers.

* Regional newspapers: Thanks to FoI, the local press has been able to run stories for the first time on school admission policies, hospital waiting lists, restaurant hygiene inspection reports and repairs to council buildings.

The North West Evening Mail revealed a £250,000 payout to a former chief of an NHS trust after relentlessly pursuing an FoI request. The paper splashed on the campaign victory, with an artist’s image of his face superimposed on a £250,000 note.

The Sheffield Star claimed victory in a two-year FoI battle with Doncaster Council, which was ordered to disclose details about excessive expense claims made by officers and councillors – after the Information Commissioner examined a rejected request for the information by the paper.

The Press in York gained access to secret government papers about a controversial company takeover by Nestlé of Rowntree after a five-year FoI battle. They revealed that a senior government minister had called for the takeover to be referred to an independent watchdog, but was ignored.

* Magazines: An investigation by Community Care and BBC News, using FoI requests to 51 NHS mental health trusts, revealed a funding shortage was putting patients and staff at risk. Doctors’ leaders called for a review of the national personal health budget scheme, following revelations by Pulse magazine that millions of pounds of NHS funding were spent on luxury items and holidays. Another FoI investigation by Pulse revealed GPs were being offered large incentive payments for not referring patients to hospital.

An FoI request by the Architects Journal raised a number of questions about the way the contract for the controversial Garden Bridge project in London was awarded.


Christopher Graham: “Changing the FoI Act is not going to put that genie back in the bottle.”
Private Eye says FoI laws have helped the magazine expose scandals at the National Audit Office, the privitisation of the Government’s international development fund, HMRC’s measure of tax dodging and the extent of the ownership of land and property owned by offshore companies. The Eye claims: “None of which, on past and current form, the Cabinet Office would have wanted anyone to know about.”

Some do claim, however, there have been many frivolous FoI requests and “fishing” expeditions by journalists along the lines of how much do local councils or government departments spend on biscuits? FoI requests are said to have included: How many toilet rolls were used in No 10 during Tony Blair’s administration? What is John Prescott’s weight? and what type of tea is drunk in the Ministry of Defence?

The press fights back

In September, 140 media bodies and campaign groups – including the Daily Telegraph, the Sun, Mirror, the Guardian, Daily Mail, the Independent, the Times and Sunday Times, Liverpool Echo, Oxford Mail, Pulse and Private Eye – sent a letter to the prime minister outlining “serious concerns” over the FoI Commission.

The letter said: “The government does not appear to intend the commission to carry out an independent and open minded inquiry. Such a review cannot provide a proper basis for significant changes to the FoI Act.”

The letter also expressed concern at government proposals to introduce fees for tribunal appeals against the Information Commissioner's FoI decisions and added: “We regard the FoI Act as a vital mechanism of accountability which has transformed the public's rights to information and substantially improved the scrutiny of public authorities. We would deplore any attempt to weaken it.”

Speaking at the LSE in October, the Information Commissioner, Christopher Graham, said local authorities were already empowered to refuse vexatious requests, there were cost limits and fees could be charged in certain circumstances. He also said there were broad exemptions to the FoI Act and “safe space” for policy discussions was respected and safeguarded under the Act. “If the mandarins keep talking about the chilling effect [of FoI] it’s a self-fulfilling prophecy,” he claimed.

Graham added: “I suspect it’s the public’s demand for real transparency and accountability combined with the insurgent power of new media and digital communications that just makes life more difficult for those in authority than was the case ten years ago. Changing the FoI Act is not going to put that genie back in the bottle.”

Over the past decade, editors have got used to asking “can we FoI it?” over possible stories. Publishers and journalists have done well out of the FoI Act, producing powerful stories in the public interest. The act has helped do what good journalism aspires to: holding the powerful to account.

The best way publishers and journalists can celebrate the tenth anniversary of the FoI Act is to make sure they do all they can to stop it being watered down.

The Times: “The truth is that there is no good time to weaken the FoI act and there is no good reason to.”

About Jon Slattery
(Details last updated: 19 May 2017)

Jon Slattery is a freelance media journalist who blogs about journalism at jonslattery.blogspot.com. Jon is a former deputy editor of Press Gazette.

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