FoI - Happy 5th birthday

The following article on the 5^th anniversary of FoI appeared in yesterday’s (4.1.10) Guardian and was written by Ben Dowell.

How many toilet rolls were used in No 10 during Tony Blair’s administration? How many accidents have there been in the BBC Television Centre toilets? What is John Prescott’s weight? And what type of tea is drunk in the Ministry of Defence?

The public’s right to know the answers to these questions was probably not foremost in the minds of the Labour government pioneers of the Freedom of Information (FOI) Act, which became law five years ago on 1 January 2005. But they have all been asked, mostly by journalists.

Blair is reported to have said, only half in jest, that the introduction of the act - and not the Iraq war - was the biggest mistake of his 10 years in government. Five years on, how effective has it been?

For many supporters, the FOI has radically altered Britain’s climate of secrecy for the better and improved openness within national and local government. The revelations about MPs’ expenses would not have been available to the Daily Telegraph had the parliamentary authorities not been preparing a heavily redacted document for FOI release; and there have been many other disclosures that have served to highlight stories many would wish to hide - such as Princes Charles’s “black spider memos” to government ministers.

Yet journalists have also criticised the act as a bureaucratic waste of time and money, with requesters complaining that important information is all too often redacted or withheld by authorities who are keenly aware of the news value of the material they hold. Sometimes information is simply lost for three or even four years in a slow appeals process as the information commissioner’s office is swamped with cases.

Some believe Whitehall and government ministers are getting bolder in manipulating the delays in order to scupper an already weakened FOI law. “It will take a huge scandal to get up steam for a reformed ‘strong’ law,” warns one reporter. “In the meantime, ministers are busy weakening it even further.”

But, according to Professor Robert Hazell from University College London’s Constitution Unit, it is the journalists who have brought the act into disrepute and helped to ensure that it has met only two of its initial six objectives (on greater transparency and accountability) failing on the other four - to increase public participation in government, improve government decision-making, and the public’s trust in, and understanding of, government.

Hazell’s report on the legislation - Does FOI Work? The Impact of the Freedom of Information Act on Central Government in the UK - which will be published in the summer, suggests that as many as two thirds of FOI-originated stories led to a decrease in trust in the government, focusing, as many published stories did, on financial misuse, poor performance, inefficiency and failures. “This is not a failure of FOI, it’s actually a story about the media’s editorial values,” says the former civil servant.

So who is right? Is the government wasting time with delaying tactics, or are the media at fault? Fatima Zohra, the corporate information manager at Westminster council, cites one request for the number of exorcists employed for the council’s housing estates as an example of a time-wasting request. She believes campaign groups have used FOI as a way of being “deliberately disruptive”, or it has been used by those who believe the council is a “Big Brother authority that’s making these dark decisions”.

But Zohra also feels the act has created a culture where information is regarded as belonging to everybody and this, in turn, has meant that, even within the council, staff have been more prone to liaise with other departments and share information. “There has been a sea change of attitudes and this has meant a lot more openness,” she adds.

Maurice Frankel, the director of the UK Campaign for Freedom of Information (CFOI) and a member of the lord chancellor’s advisory group on the implementation of the act, says public bodies have been guilty, especially in the first years of the legislation, of a “redaction mania”.

Perhaps the most hilarious example he cites came soon after the act was introduced when a Foreign Office disclosure blanked out the name of Nelson Mandela and the journalist’s byline from a published press cutting. He blames a culture in which some public bodies are nervous about issuing information containing names because they believe - wrongly - that it contravenes the 2001 Data Protection Act.

Similarly, the BBC has managed to avoid a number of disclosures because of an exemption for anything that comes under the vague categories of material used by the corporation for “journalistic, artistic or literature purposes”.

The CFOI argues that this is a serious flaw in the legislation’s wording and has underpinned, for example, continued resistance to the publication of BBC stars’ pay. A CFOI study in July 2009 revealed that of the 493 cases still outstanding in the 18 months to March 2008, 46% had been delayed by between one and two years, 25% by between two and three years and 5% by more than three years. One case had been outstanding for almost four years.

A News International journalist says organisations have worked out ways to “get round legitimate requests” in the hope - and often the expectation - that the journalist will not have the tenacity to appeal. “All they do is pick a spurious exemption - cost is a common one - and eventually the stuff you’re requesting may well have ceased to be relevant,” he adds.

Other reporters cite excuses of commercial confidentiality or national security, or have been told that the information is only available in draft form. The NI journalist argues that organisations who could be shown to have wilfully withheld legitimate information should be fined. “That would definitely focus the minds of people whose job just seems to be to sit there and tell us to sod off,” he says.

If more people were to use FOI, as the act suggests they must, then fees could be inevitable in order for it to be workable. Whether this happens will be down to the new commissioner, Christopher Graham, and he rules out any form of charging or fining at present. He is keener to tackle the backlog of cases, partly by prioritising straightforward appeals cases.

He is also adamant that public service cuts will not hamper the release of information after receiving an extra £500,000 of financing on top of the £5m core funding to help clear the backlog. Many feel Graham, a former producer for Radio 4′s investigative show File on Four, at least has a journalist’s instincts and understands the frustrations of requesters - and he is pleased that the number of decision notices was up by 40% in 2009 on the year before.

“When the message gets through that we will be coming after them (public bodies) things will speed up and there will be less gamesmanship,” Graham warns the more than 100,000 public bodies in the UK covered by the act. “We are now in a freedom of information age. Public organisations are increasingly realising that they have to put a good case to withhold information, or it will be released.”

He thinks some faults in the act ought to be re-examined “in time”, and that is likely to include the BBC’s exemption. As for the toilet and tea conundrums, “great journalistic stories come for asking impertinent questions”, he says with a twinkle. “People wouldn’t have thought to ask an MP if he was using money to pay for a duck house, now would they?”

Information: 493 the number of cases outstanding in the 18 months to March 2008

£5.5m available finance to clear the backlog of FOI requests

40% increase in the number of decision notices issued in 2009