You Can’t Go Back All the Way: Restricting FOI

FOI, as many politicians know, can be embarrassing. That’s why so many politicians begin with such great promises about openness only to regret them later. Although most FOI requests are not controversial, a few can, and do, cause a fuss. Whether its meetings over dinner between bankers and the Finance Minister (later PM) in Ireland (see http://www.irishtimes.com/newspaper/finance/2011/0212/1224289634652.htm) or possibly inappropriate comments in Australia (see http://www.theaustralian.com.au/business/media/abbott-wasnt-ambushed-riley/story-e6frg996-1226005386171) a small percentage of requests can create a stir and throw a spanner into politicians’ best laid plans. It potentially allows, in Tony Blair’s wonderfully arresting visual metaphor, the opposition to beat you over the head with a mallet instead of a club.

But not all governments simply gnash their teeth and lament their ill-luck. Some fight back, with what Alasdair Roberts calls ‘Executive Pushback’. Here’s three ways it can be done?

1. The first way is the straight change: alter the Act in some way. You can ‘trim’ the law, for example, by cutting bodies out of the Act. A group of MPs in the UK tried to do exactly this in 2007, seeking to exempt parts of Parliament covered by FOI. It didn’t succeed but got far enough to make a stir. Or you can hit the public where it hurts, in the pocket, and make FOI more expensive to use. Many FOI regimes have a standard charge for requests. In Ireland a flat fee of 15 Euro per application was introduced after 5 years of free requests. This had a pretty sharp impact on the numbers of requests, which both the Irish Information Commissioner and the OECD have criticised http://www.oic.gov.ie/en/MediaandSpeeches/Speeches/2008/Name,8400,en.htm . The problem with this approach is that directly changing an Act with the words ‘Freedom’ and ‘Information’ in the title is pretty bad PR.

2. You can try and be a bit more subtle: change another Act or tamper with the process. A bill being considered in South Africa would allow agencies to re-classify documents and to potentially exclude them from the Act http://www.freedominfo.org/regions/africa/south-africa/ . One of my favourite approaches is that being considered in India. This would restrict the amount of words in any RTI request to 250, to make sure everyone is brief and to the point http://www.freedominfo.org/2011/01/indian-government-retorts-to-critics-of-rti-law-proposals/. Judging by the ongoing reaction to these two proposals, they fool potential opponents for a matter of seconds.

3. How about signals? You can try and tell officials that, while you fully support openness, they should, perhaps, think about other factors that may mean not releasing information. You can then hope that your lukewarm enthusiasm will percolate through the bureaucracy. A reasonably unsubtle example was Attorney General John Ashcroft’s memorandum, which instructed officials to be mindful of FOI but more mindful of other things. After endorsing FOI it offered what seemed to be a rather nice ‘get out of FOI for free’ card:

‘Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.’ (see the full memo at http://www.cjog.net/background_the_ashcroft_memo.html)

An even less subtle one was from Irish Taoiseach Brian Cowen, who called FOI ‘an expensive and time-consuming aspect of Government work’. He had no problem with requests from the public, he said, but objected to ‘the idea of the department trawling every question that comes in from people who, perhaps, regard the departments of State as a source of generating information’ which constitutes an ‘abuse of the process’. http://www.independent.ie/national-news/freedom-of-information-laws-a-waste-of-resources-says-cowen-1947896.html. It may be that these ‘signals’, combined with fewer resources, may prove to be the most potent threat to FOI in the long run.

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