Just Say No: The Impact of the FOI Veto
May 9, 2012 3 Comments
The Coalition government used its powers under FOI to veto the release of NHS Risk Registers yesterday, an issue which has been rumbling on since an FOI request by a Labour MP. Andrew Lansley’s full statement is here. He justified his actions as being due to a fear that, if released, future records will be altered and policy made differently (the so-called chilling effect):
This is not a step I have taken lightly. I am a firm believer in greater transparency and this government and this department have done far more than our predecessors in publishing information about the performance and results of our policies. But there also needs to be safe space where officials are able to give ministers full and frank advice in developing policies and programmes.
The Freedom of Information Act always contemplated such a ‘safe space’ and I believe effective government requires it. That is why cabinet has today decided to veto the release of the department’s transition risk register. Had we not taken this decision, it is highly likely that future sensitive risk registers would turn into anodyne documents, and be worded quite differently with civil servants worrying about how they sound to the public rather than giving ministers frank policy advice.
As with the decision over Iraq, it appeared to come down to a different view of what is in the ‘public interest’
The choice to use the veto rather than appeal the decision to publish the risk register was made because the secretary of state and the cabinet views this as an exceptional case where there is a fundamental disagreement on where the public interest lies in relation to the disclosure of the risk register…The upper tier tribunal would focus on points of law arising out of the first tier tribunal decision rather than the balance of the public interest on the evidence.
The Tribunal itself had referred to the Unit’s work in refuting fears of a ‘chilling effect’:
Lord O’Donnell brought to our attention his own view of the likely chilling effect and the opinions of others. There was no actual evidence of such an effect. We note that independent research carried out by the Constitution Unit at University College London has concluded that there is little evidence of FOIA leading to a chilling effect.
What will the consequences be? In the short term the Risk Registers will remain unreleased (though some are arguing for partial release such as Lib Dem David Heath). To the government, it will probably be better to be criticised for non-release than add fuel to the debate. This will not, of course, stop the controversy.
For FOI, the use of the veto gets easier politically the more it used. As ever this case is the ‘exception’. However, some feel it sends out the wrong signal and each veto use erodes confidence in the system.
It also adds to growing criticism of the Act from Gus O’ Donnell, Tony Blair and Jack Straw, who called for additional protections for policy makers. This growing concern about FOI reflects the fact that politicians don’t like surprises. It may also be because those high up in an organisation only see the 1 or 2 per cent of particularly troublesome requests, sensitive cases or, worst of all, the ones involving them. So they get a very selective, and very negative, view of what is being asked.
Has David Cameron joined the concerned? He remains very pro-Open Data, even offering us his tax returns, but his recent (albeit brief) comments to the Select Committee indicated some worries about FOI being used for process rather than spending. He also appears to have voiced concern about a ‘chilling’:
Because of Freedom of Information (FoI), he explained, officials and ministers are increasingly reluctant to put on paper what they actually think…Mr Cameron says he is trying to set an example by writing what he thinks on the memos he receives.
It will be interesting to see how he feels about openness if Leveson releases his texts and emails to Rebekah Brooks.