There can surely be no better proof than the debacle over MPs’ expenses. Today, the outgoing information commissioner, Richard Thomas, called the row a "coming of age" for openness. He also said that the leak of MPs' details to the Daily Telegraph, following a court ruling that they must be disclosed, "cemented FoI's reputation as a success story".
The Freedom of Information Act 2000 (FOIA) usually gets good reviews. A recent presentation by Mark Glover and Sarah Golsen for the UCL Constitution Unit found that the UK freedom of information regime is more open than other countries’. In its first four years of operation, information was more likely to be fully withheld than in comparable countries; but the UK legislation also did quite well in terms of ensuring a full disclosure. Last month, a study by Jeremy Hayes for the Reuters Institute was, overall, very positive about the legislation.
The legislation could be improved, however. Yesterday, Gordon Brown announced plans to consult on extending the FOIA to bodies spending public money that were not currently covered by it. He also said official papers would be published after 20 rather than the current 30 years – but sensitive material would get more protection.
Brown’s plans aren’t as good as they may have sounded. He hasn’t gone quite as far as the 15 year period recommended by the Dacre Review earlier this year. By “sensitive material”, Brown means papers relating to the Royal Family as well as discussions between senior ministers. And – worst of all - the whole class of cabinet papers will now be excluded from the openness regime. [Click here]
There are other ways of judging the FOIA. One is how well it works in practice. Too often, departments tend to drag their feet in responding to requests. As The Economist has noted, investigations by the information commissioner often take more than a year. [See also the Reuters Institute study’s findings on departments’ delaying tactics.]
There is a solution. Richard Thomas noted today that:
“Open government is good government, but it is has to be properly paid for. Last year we closed 17% more cases, but – reflecting the growing popularity of FoI - we received 15% more complaints. My office is flat out, but too many cases still have to wait to get started. If the law is to be extended, that must be accompanied by adequate and secure funding.”
A parallel issue is ‘cultural’: how much ministers and civil servants believe in freedom of information and try to make it work. On the one hand, Gordon Brown won plaudits for FOI campaigners by junking Tony Blair’s plan to impose limits on the number of information requests a person could make, and, as noted, he now proposes to extend the scope of the Act. On the other, Labour and Conservative MPs tried in 2007 to exempt MPs’ and peers’ expenses from the FOIA.
And, lest we forget, in February, the Labour government vetoed the release of the cabinet minutes relating to the decision to go to war with Iraq. That takes us back to the legislation itself. I have come around to the view that the ministerial veto on Information Tribunal decisions should be abolished. The Liberal Democrats’ Freedom Bill would do just that.
If this government, or its successors, is really serious about open government, they must lead from the front. Today, Richard Thomas called for “an instinctive “culture of routine, proactive and substantially increased openness”. He said:
“Public authorities must earn the trust and confidence of the public. They should identify their Crown Jewels - the information that really cannot be made public - and ensure that other official information is routinely disclosed without waiting for requests. The public sector culture must continue to shift so that openness is the norm.”
Such a cultural shift must come from the top but, on the basis of experience, I hold no illusions that the Labour government will take such a lead.
There may be other reasons to be concerned. Glover and Holsen, whilst seeing a number of reasons to be positive about the future for freedom of information, noted that political sensitivity and budgetary pressures may lead to more restrictive approaches. They anticipated a shift towards more ‘legal trench warfare’, through the introduction of ‘legislative amendments to reduce the scope of FOI and curb demands’, coupled with a strategy of resisting disclosure by ‘contesting every legal argument before the Information Commissioner, the Information Tribunal and the courts’.
Hayes considered the attitudes and histories of government departments and civil servants and concluded:
“It would be unrealistic on current experience to anticipate any let up in the game of ‘cat and mouse’, involving delaying tactics and appeals . . .
“. . . Even after the use of the veto in the case of the Iraq Cabinet minutes, a queue of cases to come before the Information Commissioner and the Information Tribunal will ensure that arguments . . . continue to be heard. How such future cases will be judged cannot be anticipated. But it is possible that rulings against government departments may prompt moves to amend the Act to place certain ‘categories of information’ beyond reach."
The last, gloomy prediction (also made above by Glover and Holsen) appears to be coming true, in the form of Labour’s proposal to exempt Cabinet papers from the FOIA.
Another of Jeremy Hayes’s observations was no less worrying:
“The Conservative Party’s support for the use of the veto in the Iraq Cabinet minutes case may indicate broader sympathy for restricting the use of the Act.”