Why pass FOI laws? The politics of freedom of information

Ben Worthy

Why are there now more than 100 freedom of information laws around the world, even though they help opponents and hinder governments? In a new book, published this month by Manchester University Press, Ben Worthy investigates. He concludes that the main reason is that as a symbolic pledge in opposition FOI laws are hard to resist. Once in power these promises are hard to back down from, though experience suggests that proposed laws are often watered down before being enacted. These findings are summarised here.

worthy-bookWhy don’t more politicians react to freedom of information (FOI) like Lyndon Johnson? Why don’t more of them run a mile when presented with the possibility of giving the public a legal right to ask for information from the government? When the idea of an FOI law was suggested to Johnson in 1966 by a fellow Democrat Congressman the US President responded, after some swearing, ‘I thought you were on my side?’ As his Press Secretary explained:

LBJ… hated the very idea of the Freedom of Information Act; hated the thought of journalists rummaging in government closets and opening government files; hated them challenging the official view of reality.

For any budding politician, FOI appears to be the ultimate political boomerang. It helps your opponents. It hinders you.

To make FOI laws even less appealing, there are no votes in them. Merlyn Rees, a Home Secretary who fought hard against an FOI law in the 1970s, once exclaimed that ‘the Guardian can go on for as long as it likes about open government… but I can tell you that in my own constituency of 75,000 electors I would be hard pressed to find many who would be interested’. Only in India, where the Right to information Act was part of an anti-corruption campaign, have FOI laws responded to broad public enthusiasm. So how is it that there are now more than 100 FOI laws around the world?

The question is really why would a politician support FOI in the first place? Sometimes they believe in openness and sometimes leaders who don’t believe in it have it forced upon them, as Theresa May has discovered over Brexit. Other times it is for pure advantage, because a scandal makes it hard to avoid (as in Ireland), so a politician can ensure that they get information in the future or because it has promised FOI as part of a coalition deal (as in India). It is also about context. Often FOI laws are pushed through when there is lots of other constitutional or legal change going on. Across the world, as Rick Snell points out, organised groups and enthusiastic individuals, often ‘outsiders’, push for an FOI law when other key people are distracted or looking the other way.

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Return to the dark: the continuing lack of transparency over spads

11th July 2013

The government released its response to the Public Administration Select Committee’s report on special advisers (spads) yesterday[1]. The more anorak-minded of us focused on Paragraph 8 where the government said something that is certainly misleading if not simply false:

“This Government has already significantly increased the transparency around all special advisers. The names and salary paybands of all special advisers are now published on a quarterly basis.”

Whilst the second sentence used to be true, nothing has been published since a report on 19 October 2012[2]. It is unclear why they would assert something to the contrary in an official publication.

It is only through relying on second-hand and unofficial sources that we are able to examine the number of spads, but it appears that about ten new spads have started working for the government who have not been named in any data release.

As this is about 10% of the total number who have worked for the Coalition at any point, this shows that the lack of clear data limits transparency and hampers data collection, whilst privileging those with pre-existing connections to the government (and frustrating researchers!).

Moreover, some of these spads have quite interesting backgrounds (e.g. the Lib Dem PPC who stood down to become a special adviser[3] or the Conservative spad assigned to a Minister of State who does not attend Cabinet[4]) and not all appointments have been noticed (even by bloggers who are normally quite watchful of these things, e.g. Guido Fawkes[5]).

Unfortunately, these secondary sources do not list information how much individual spads earn (or their collective pay bill), and thus that information will remain sadly in the dark until an eager MP asks a parliamentary question (as was normally the case until Tony Blair began releasing annual lists around 2003) or the government releases its next “eagerly” awaited list.

For those who are interested, information on the new spads is listed below:

Name

Minister

Department

Frith, Emily

Norman Lamb

Health

Gallagher, Will

Chris Grayling

Justice

Jones, Ed

Jeremy Hunt

Health

King, Nick

Maria Miller

DCMS

Masser, Alastair

Lord Hill

Leader of the Lords

O’Brien, Neil

George Osborne

Treasury

Parkinson, Stephen

Theresa May

Home Office

Rogers, Thea

George Osborne

Treasury

Talbot-Rice, Sam

Jeremy Hunt

Health

Wild, James

Michael Fallon

Business

Also, as far as our data shows, there are 89 spads in post (as of May-June 2013), a number which is certainly quite near the numbers reached during the New Labour governments.


No Going Back: Committee Protects FOI

The Justice Committee today published its report following its post legislative scrutiny of the Freedom of Information Act. It concluded:

 The Freedom of Information Act has been a significant enhancement of our democracy. Overall our witnesses agreed the Act was working well. The Freedom of Information Act has achieved its three principal objectives, but its secondary objective of enhancing public confidence in Government has not been achieved, and was unlikely to be achieved.

It should be emphasised that the right to access public sector information is an important constitutional right, a fact that can get lost in complaints about the operation of the freedom of information regime. We do not believe that there has been any general harmful effect at all on the ability to conduct business in the public service, and in our view the additional burdens are outweighed by the benefits.

Some of the key findings were that

  •  The Freedom of Information Act has made government more transparent and more accountable.
  • The Act’s impact on decision-making is unclear, though the committee felt it may have had more of an impact than we felt it did.
  •  The Act’s impact on trust is also nuanced (perhaps more nuanced,in my opinion, than the MOJ memorandum claimed).
  • Publication schemes have been overtaken by technology, though it is too early to tell what impact reforms such as Open Data have had.

The Committee looked into some of the controversies around FOI.

  •  It concluded that evidence for a chilling effect is far from clear cut. The concerns of senior minister and officials may indicate there is a problem though, as the Committee pointed out, much of their evidence fitted particular circumstances, was hypothetical or was anecdotal-see Blair’s letter here. It did not recommend any changes in this area but sought to reassure that the Act itself, combined with use of the veto, should protect the required ‘safe space’ for discussion.  See here for my reasons as to why I am sceptical about this chilling.
  •  Despite a seemingly growing pressure for some form of application fee, the committee rejected this as too difficult to operate. It also outlined how difficult it was to calculate the cost of FOI.
  •  A final interesting and controversial proposal was the recommendation that universities be given a protection similar to that under the Scottish FOI that specifically protects research information. Interviewees we spoke to in our short study were divided over whether such an exemption would work or was necessary (see the UUK evidence and FOI man’s response).

The Committee made a number of recommendations: that the period of internal review have a 20 day limit, the ‘vexatious’ safeguards in the Act be better used and that requesters be told how much their question cost to process.

The most significant part of the report was what is did not do. There has been high profile criticism of FOI, from Tony Blair to David Cameron that worried the Information Commissioner. This had led to discussion of additional protections for discussion, the introduction of fees and other changes. The committee criticised Tony Blair for not appearing.

The report also quoted Francis Maude, who addressed concerns about ‘abuse’ by the press which may be driving some of these criticisms. Maude said: ‘Can [openness] lead to embarrassment? Yes. Do we have to be a bit grown up about that? Yes, we do’.

Cos I’m the Taxman: Opening Up on Tax

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David Cameron, following on from George Osbourne, has spoken of how he would be happy to publish his tax returns. This links to criticism that many of the ‘Cabinet of Millionaires’ benefit from recent tax changes, the recent ‘Cash for Access’ controversy and, not entirely unrelated, the recent row over Ken Livingstone and Boris Johnson’s incomes (you can see Boris’s returns here and Ken’s here)

Not everyone is convinced. Here Liddell-Grainger, the Conservative chairman of the All Party Group on Tax, said publication would be unfair and could trigger “jealousy.”

If you put up people’s tax returns just willy-nilly across the United Kingdom, then you get the envious factor coming in. You’ll get the jealousy. People like myself will be dealing with people whose names have been put on internet sites, Twitter and Facebook.

I don’t think that’s fair on people. They do pay tax. People don’t know what their neighbours are doing these days. Why drag them through the mire if they don’t need to be?

Such publication is common in Scandinavia (see details of Norway here and some analysis by Channel 4.) According to Channel 4, the publication of the details of all tax returns in Norway, where the law on publication was enacted, reversed, and then acted again, led to mixed results as it

Provoked an outcry from privacy campaigners, who claimed it had sparked a “frenzy of snooping”, as people rushed to find out exactly how much their neighbours and co-workers made. Newspapers and media outlets swiftly compiled their own “Top 10” lists, comparing the earning power of celebrity couples, and revealing details of top-earning footballers, actors, and business tycoons.

With details on everyone from reindeer herders to top lawyers freely available, the list seemed to symbolise the best of Nordic openness. As Jan Omdahl, from the tabloid Dagbladet, wrote at the time: “Isn’t this how a social democracy ought to work, with openness, transparency and social equality as ideals?” However a poll carried out in 2007 found most of his countrymen disagreed: just 32% thought the list should be published, while 46% were opposed.

In 2005 in Italy, in a supreme act of ‘last day in the office’ revenge, an outgoing Italian Finance Minister published tax details of the rich and famous.

Publication in Italy also caused quite a stir with allegations that it would be used by organised crime to kidnap the rich and hold them to ransom. Before you ask, Silvio Berlusconi earned £21.9m in 2005 and Giorgio Armani, who earned the most, earned £35m.

The exact point of publishing is not clear, apart from broadly being an ‘open’ thing to do. It is a great example of  the difficult, and unresolvable, balance between openness and privacy. It remains a problematic area in Norway and continues to be contentious. Perhaps this quote sums up the issue, with tax caught between the force of transparency, the voyeurism of celebrity and the irresistible pull of pure nosiness:

What some see as an honest commitment to fairness is for others, an invasion of personal privacy, and a licence for what the Norwegian tabloid Dagbladet described as “tax porno”.

Risk of a Chill?

ImageThe Tribunal has now released details of its final decision over NHS Risk Registers, a risk assessment of controversial reforms to the NHS. The concerns centred on the potential damage release would have and whether it would have a chilling effect in reducing records kept, or in other ways restrict policy-making (see here for our views).

It has a classic defence of the chilling effect from Former Cabinet Secretary Gus O’Donnell on p.15:

‘Lord O’Donnell was very concerned that if there was routine disclosure of risk registers at the stage they were requested in this case that ultimately they would lose their effectiveness as a vital management tool for government and this would have a profound and damaging effect on the public interest in sound policy-making for the following principal reasons:

  • frankness and candour which are essential to the usefulness of risk registers would be fundamentally damaged;
  • the likelihood of the risks materialising would increase;
  • it would distract policy makers from their task at a crucial point in the process of formulation and development; and
  • there was a danger that disclosure of the risks in the form that they are set out in the risk registers could harm rather than assist public debate.’

The tribunal seemed less sure

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. Also in a previous case, OGC v IC EA/2006/2068 & 80 (“OGC”), where the Information Tribunal ordered the disclosure of Gateway Reviews apparently there has been no evidence of a chilling effect since their release.

It asked the opinion of Jon Healey, the (now opposition) MP making the FOI request , who was formerly a Minister

Mr Healey was the Minister responsible for the Office of Government Commerce at the time and said that there was no evidence that a chilling effect developed as a result of the release of the reviews even after he moved to The Treasury.

It ends with two statements that sum up the difficulties with the chilling effect

Lord O’Donnell said it was very difficult to prove one way or the other whether a chilling effect would take place.

Mr Healey expressed the view, that in his experience as a Minister, that the quality of submissions on policy had tended to improve since the above disclosures.

A further difficulty is the complications of the policy process. NHS reform has proved particularly complicated and controversial, as the Tribunal points out

From the evidence it is clear that the NHS reforms were introduced in an exceptional way. There was no indication prior to the White Paper that such wide-ranging reforms were being considered. The White Paper was published without prior consultation. It was published within a very short period after the Coalition Government came into power. It was unexpected. Consultation took place afterwards over what appears to us a very short period considering the extent of the proposed reforms. The consultation hardly changed policy but dealt largely with implementation. Even more significantly the Government decided to press ahead with some of the policies even before laying a Bill before Parliament. The whole process had to be paused because of the general alarm at what was happening.

The problem is that many FOI requests that touch on the policy process will be for matters that are already controversial or sensitive (the war In Iraq, devolution etc)-will there ever be case that is not in some way special?

Justice Committee FOI Evidence: A Quick Guide

The Justice Committee has received 112 submissions providing evidence on which to base their post-legislative scrutiny of the FOI Act. Twenty-five per cent of these are from universities, or bodies representing them, making HE by far the most vocal sector.

A number of common themes have emerged. One point, made by the Information Commissioner, among others, was that public authorities should be allowed to reject requests on the grounds that they are “frivolous” as well as that they are “vexatious”. This would allow them to bin queries which, while not calculated to harass or annoy the Council, are simply very silly. Bad news for the “Concerned Citizen” who caught Leicester City Council napping when he asked what planned to do to fight the zombie menace.

Many public authorities complained about the cost of dealing with FOI requests, and more generally, the costs that currently ‘don’t count’. Requests are cost-barred if the price of answering them would be more than £600 for central government and £450 for everyone else . Staff time is valued at £25 per hour. Time spent considering exemptions or redacting certain information does not count towards the total.  Leeds Council said  that this results in underestimating of the real cost of FOI, not least because an hour of staff time costs them more than £25.

The Ministry of Justice, and the NHS Foundation Trust Network, are two among a number of public authorities who worry about who benefits from FOI. In some cases, they say, commercial organisations use the Act to gain a competitive advantage. This means that the FOI Act is effectively subsidising certain businesses- which they claim was not Parliament’s intention when passing the Act 12 years ago.

Oral evidence by journalists the following week- Martin Rosenbaum, Doug Wills, David Higgerson and David Henke – raised a number of points relating to their experience as requesters. Although the Act had caused a “sea change” in access to information, it has not created a culture of openness among public authorities. Despite apparent commitment to FOI, every so often, Martin Rosenbaum said, “the mask slips” and the true face of government emerges. The Home Office have even accidentally sent him an email discussing the department’s desire to keep certain documents secret, because they show that there is a lack of evidence to support Home Office drugs policy.

The four said Act has altered journalistic practice. It has encouraged whistle blowers, because they now do not need to hand over documents to journalists. Instead, they can simply recommend a FOI request. Additionally, some stories now begin with a request made by a member of the public. This means that more voices are heard in the public debate. But it doesn’t always improve the quality of that debate. On the contrary, sometimes it “improves the quality of people’s prejudices”, by allowing them to feed their hunger for information only on their personal favourite titbits.  They also noted the hypocrisy of organisations that complain about request volume, and also complain about requests from journalists.  Journalistic use of FOI, they said, is efficient:  the information extracted is published and the media’s entire audience, instead of just one person, can be informed.

We submitted oral, as well as written, evidence to the Justice Committee based on our different research projects over the years. We reiterated our conclusions that the Freedom of Information Act has succeeded in its core objectives of promoting the transparency and accountability of public bodies. However, the Act was also sold as a mechanism that would increase public trust and participation, improve the quality of decision making and improve public understanding of the political process. It is almost impossible to measure whether or not it has delivered on these promises and moreover, these policy goals are somewhat out of FOI’s reach (see our previous post on the problem of measuring, let alone increasing public trust, for instance).  We also stressed the problems of measuring ‘concentrated costs’ of FOI against ‘dispersed ‘benefits’, which inherently skews the discussion. You can see this reflected in the submissions themselves, few of which attempt to quantify FOI’s benefits in monetary terms, but are quick to try calculate its costs.

Jim Amos, drawing on his experience in researching and also training FOI, also asked FOI officers to help themselves, adding a pragmatic note to the review’s proceedings. The way to make sure the Act works well is not necessarily amendments and fees, but “robust professionalism”. Public authorities should make use of the exemptions and the cost limits available to them. What they should not do is work very hard to fulfil unreasonable requests, and then complain about the burden involved in doing so. Whatever the results of this post-legislative scrutiny, this advice ought to be heeded.

FOI: university challenged

Running alongside our current project looking at FOI and universities, is the Justice Committee’s own review into the impact of FOI on the UK. This has presented us with some good opportunities – firstly to showcase our research into FOI over the last 6 years, and secondly, giving us the chance to see what public bodies think of FOI via their submissions to the committee.

The Higher Education sector is well-represented in the 112 submissions the committee received. Well, over represented if anything. Almost 200,000 FOI requests a year are received by local government (according to our estimates), and yet only three councils (Leeds, Birmingham and Kent) made submissions. Universities, or their representative bodies, make up a quarter of all submissions to the committee, but receive vastly fewer requests, looking at the latest data.

While most public authorities responding to the call for evidence – including universities – focussed on common themes (vexatious requests; fees and charging; commercial/media use), some universities were unique in calling for them to be taken out of FOI altogether (Durham, Essex, Reading), or at least have specific exemptions applied to some of its activities (colloquially known as the ‘BBC-style’). The latter has been attempted through an amendment to the current Protection of Freedoms Bill. Universities UK pushed for an exemption within section 22 of the Act, to protect research findings from ‘premature’ publication through FOI. (The amendment was based on a similar clause in the Scottish FOI Act 2002). The amendment failed to attract government support.

Our project, through speaking to academics, university managers and officials, FOI officers, bloggers, requesters, media and open-data enthusiasts, has uncovered some interesting ideas about what it means to conduct research in the public domain and the pressure on universities to remain ‘competitive’. We’re also uncovering what requesters want from universities and academics, and how this might inform the place of universities within the ‘public sector’.

Looking in more detail at the submissions made by the Higher Education sector to the committee, their changing funding arrangements appear crucial to the way they view FOI.

FOI applies to all information ‘held’ by the University, irrespective of the source of funding for its activities, whether those be research programmes, teaching, or innovation. Universities make the argument that this can cause tension in their relationship with private funders when negotiating contracts and during the course of the research itself. They fear that this could lead to a “…reduction in the amount of private funding received at a time when the amount of public money being allocated to higher education has been reduced dramatically.”(University of Bristol submission)

Further, some Universities outlined the falling percentage of their funding or turnover that is derived from public sources and linked this to the appropriateness of being covered by FOI. The 1994 Group noted that public funds for teaching this year would only contribute 22 per cent to overall teaching income: “Given this, it may be more appropriate in future for some areas of higher education activity such as teaching to be exempted from FOIA legislation.”

Private providers in the HE market also constitute a problem – in receipt of public funds through student loans, yet not covered by FOI.

Competition can only be fair and effective if all institutions are operating on a level playing field, subject to the same regulations. The question of how the FOIA should be applied to a more diverse set of higher education providers needs resolving as a matter of urgency.” (UUK submission)

Where the Justice Committee will go on FOI is anyone’s guess. But the HE sector was successful in gaining an opportunity to give oral evidence to the Committee, taking one of the coveted four slots.

The sector’s hopes to change the way they’re covered by FOI (in some way) is running concurrently to the many open-data initiatives of academic disciplines and research councils. The other main area of concern for universities regarding FOI – access to research data – is something we’re continuing to investigate. In the meantime, you can read summaries of some other notable submissions to the Justice Committee, and watch Ben Worthy, Robert Hazell and Jim Amos give their evidence to the Committee on our website.