On 1 March, to some surprise, the Burns Commission concluded that the Freedom of Information Act was ‘generally working well’. Ben Worthy and Robert Hazell explain how the Commission came to this unexpected result and, drawing on the results three major research projects, argue that since it came into force in 2005 FOI has achieved its primary objectives of making British government more accountable and transparent.
Freedom of information was in the news again when the Independent Commission, chaired by Lord (Terry) Burns, delivered its report on 1 March. To some surprise, the Commission concluded the Act was ‘generally working well’, and there was ‘no evidence that the Act needs to be radically altered’. This was not the expectation when the Commission was established last summer, with a membership of Lord Burns, Lord (Alex) Carlile, Dame Patricia Hodgson, Lord (Michael) Howard, and Jack Straw. Their terms of reference invited them to consider whether there was a need for sensitive information to have robust protection; whether the Act adequately recognised the need for a ‘safe space’ for policy development; and whether change was needed to moderate the burden on public authorities. All that suggested a report that was likely to restrict FOI in various ways, but that is not what has happened. Why has the Commission come to this unexpected result?
The answer lies mainly in the evidence they received. The Commission received over 30,000 written responses, with 29,334 coming via the 38 Degrees campaign website. The media and civil society organisations like the Campaign for Freedom of Information were strongly supportive of the Act, and it was left to a few local authorities, police authorities and NHS Trusts to explain the burdens they felt it imposed. No central government departments submitted evidence, so if the government had wanted to restrict FOI, its case went by default.
The Commission came down against introducing up-front fees, which would have reduced the volume of requests. It recommended tighter deadlines for public authorities to respond to complex requests, and to conduct internal reviews; some strengthening and rationalisation of the exemptions for policy formulation; and legislation to clarify that the executive does have a final veto over the release of information. This was minor tweaking, rather than a radical review. The government has, so far, agreed with the broad thrust of its recommendations, though they turned down the option of legislation to tighten the veto, perhaps because of parliamentary arithmetic.
How can this be squared with the claims of Tony Blair that the law is one of his greatest regrets, or David Cameron’s reference to FOI as just another ‘buggeration factor’? The single most powerful factor was the response of the media. Fears of diluting the Act generated unified criticism across the media including the Sun, the Guardian, the Daily Telegraph and the Daily Mail, with a personal editorial from the head of Associated Press attacking any attempt to cut back on FOI. There was also resistance in parliament, with opposition MPs forming a cross-party counter commission in December 2015, vocal opposition on the Conservative party backbenches, and backing from a post-legislative review by the Justice Committee in 2012 which concluded that FOI was a vital part of democracy.
So what does the data tell us about FOI ten years in? In terms of numbers the UK has a relatively high use of FOI, rising steadily across central government by around five per cent a year from 30,000 in 2005 to 46,000 by 2014. Many more requests are made to local government, with 70-80 per cent of requests made to local councils, in excess of 200,000 per year.
We have conducted three major studies of the operation of FOI, evaluating its impact on Whitehall, local government, and parliament. Our studies concluded that FOI has achieved its primary objectives of making British government more transparent and accountable. We now know much more about a vast range of subjects from nuclear convoys to ministerial gifts, and from parking fines to councillors’ expenses. The most high profile example of FOI making politicians accountable was the 2009 MPs’ expenses scandal that helped trigger MPs stepping down and resignations. At a more local level, in 2012, requests led to the resignation of an entire parish council in Walberwick in Sussex. Day to day, FOI has become a tool for information collection at all levels, by citizens pursuing private interests, by organisations conducting a wider campaign, or by companies chasing government contracts.
But we also concluded that FOI had not achieved its secondary objectives, of increased public participation, better public understanding of government decision making, or increased trust in government. If anything trust has decreased, especially as a result of the MPs’ expenses scandal. This is not necessarily a failure of FOI, but a recognition that in these respects FOI was over-sold. FOI was never going to be a magic cure for the ills of modern government. Shifting levels of participation and public trust are complex and FOI alone is unlikely to make a difference.
If FOI hasn’t realised all its supporters’ hopes, nor has it realised its opponents’ worst fears. It has added to the burdens on public authorities when their resources are being drastically reduced; but it has not had any significant impact on government decisions or decision-making processes. In our research we looked hard for evidence of a ‘chilling effect’, but could find none. Despite former Cabinet Secretary Gus O’Donnell’s suggestion that officials are ‘working on Brexit plans in their head’ to avoid FOI, we found the chilling effect to be a myth (as did the Justice Committee). The quality of government records has certainly grown worse, but that is a consequence of more chaotic record keeping in an age of emails and mobile phones, and not of FOI. Despite this lack of evidence, the belief that FOI has a chilling effect continues to be strongly held.
So where will FOI go in the future? Debate will turn now to coverage of private contractors, an issue touched on by the Commission. The question of costs will not go away, but no government can change the UK’s generous fee regime without parliamentary approval. There will always be ‘fighting on the borders’ and struggle. One academic saw openness as a pharmacon: ‘it heals in correct doses and kills when the doses are too high’.
To read our full article ‘Disruptive, Dynamic and Democratic? Ten Years of FoI in the UK’ in Parliamentary Affairs, click here.
About the authors
Dr Ben Worthy is Lecturer in Politics at Birkbeck University London and a former Research Associate at the Constitution Unit.
Robert Hazell is Professor of Government and the Constitution at the Constitution Unit.