Does Freedom of Information create a chilling effect?

One of the most persistent stories about FOI concerns the so-called ‘chilling effect’ which is, in fact, a bundle of things. Put simply, the chilling effect means officials and politicians no longer record decisions because they may get released under FOI. ‘Proper decisions’ are replaced with chats in the corridor, phone calls or post it notes.

It’s because of this possible consequence that Tony Blair described his support for FOI one of his biggest mistakes, and explained in an interview how he came to feel FOI was ‘not practical for government’ as  ‘if you are trying to take a difficult decision and you’re weighing up the pros and cons, you have frank conversations…if those conversations then are put out in a published form…you are going to be very cautious.’

In all our research we have tried to look into this. We have concluded that it’s all a bit tough, with little sign at central government but some evidence of it happening in local government, particularly in sensitive situations.

But it is a very slippery concept. The first problem is that people won’t necessarily admit doing it. It can, of course, get you into trouble not having a record. It contravenes good practice and all sorts of codes of conduct and ethics. There also may be a bias in us barging into public bodies and asking if anything has changed: a ‘when did you stop beating your wife?’ style loaded question, as one official put it.

The second problem is how do we know its FOI’s fault? Some of the discussion around how minutes used to be features a wonderful ‘golden age’ where full and voluminous minutes, peppered with dry wit, were taken by classically educated officials, which may look something like this discussion of Indian independence.

But why records look how they do depends on all sorts of things. Resources can determine how or if minutes are taken. Fear of leaks too: one authority told us of how they had to stop using paper headed ‘confidential’ as it was ‘automatically’ leaked. Style can also have a lot to do with it. Mr Blair was himself a big fan of sofa government which, as numerous Iraq investigations have shown, is not conducive to a nice meaty audit trail.

One of the big difficulties is that the politics of a decision is often off paper. Even when it’s there it may be considerably less exciting than reality. The cabinet minutes of the so-called Westland crisis, where Michael Heseltine resigned and nearly sunk Thatcher, are a case in point. When the Cabinet minutes for Iraq are released they may be a little more ‘dog that didn’t bark’ than smoking gun.

2 thoughts on “Does Freedom of Information create a chilling effect?

  1. Pingback: Departing O’Donnell: FOI damages discussions « constitutionunitdotcom

  2. Pingback: Palin’s e-mails: Why so bland? « constitutionunitdotcom

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