The importance of a clear view

“You idiot. You naive, foolish, irresponsible nincompoop. There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”

So wrote Tony Blair in his autobiography, lambasting himself for his introduction of the Freedom of Information Act 2000. The Act, which came into effect in 2005, is not used by “the people”, he thinks; only as “a weapon” by journalists. “For political leaders, it's like saying to someone who is hitting you over the head with a stick: ‘Hey, try this instead’, and handing them a mallet.”

The coalition government is much keener on the Freedom of Information Act than Blair. Of course, its enthusiasm may not endure: many governments around the world have come into power supporting freedom of information (FoI), only to rapidly go off the idea once in office. But so far, at least, the coalition has shown itself willing to put its data where its mouth is: Lord McNally, the justice department minister in charge of freedom of information, has already expanded the Act’s scope to cover a couple of additional bodies, and more may be set to follow as public service delivery evolves.

This has not been achieved without some concern among ministers. McNally recently told a conference on the Freedom of Information Act, hosted by Westminster Legal Policy Forum, that he had “bound into a meeting like Tigger and said with great enthusiasm: ‘I’ve just extended the Freedom of Information Act.’ I looked around at my ministerial colleagues and they looked as though I had stolen the Crown jewels. They said: ‘What the bloody hell have you done that for?’ It does look different from a ministerial perspective.”

All those in favour

Nonetheless, speaking to CSW after the conference, McNally argues there is a public appetite for FoI: “Whenever you do these extensions, they are generally used and generally welcomed.” In particular, he cites crime statistics. “One of the things that people feel most frustrated about is that when a crime happens in their area, they’re not sure what happened afterwards. To be able to see how the police and courts handled it will give people greater confidence in the criminal justice system.”

McNally also believes FoI is good for governance because it drives up standards. “The key to driving up standards, driving out bad practices, is the spotlight of transparency,” he says. Given more information, the public will feel more connected to service delivery and be able to see how decisions are made, he thinks. That enables comparisons to be made, which in turn allow bad services to be held to account and good services to be praised.

Indeed, McNally says that “one of our objectives was squeezing the culture of secrecy out of Whitehall. Whether that’s been achieved will be a constant study, but I do think it’s had an impact for the better.”

All those against

However, many public servants and observers with experience of FoI are critical of the Act, and the government is consulting to take these criticisms on board as it prepares for further reform.

A key complaint is that the FoI rules are too complicated. John MacDonald QC, author of the practitioner’s textbook The Law of Freedom of Information, said at the conference that the act is unduly complicated and he hopes “the government will simplify it”. In particular, he wants to combine the act with the accompanying ‘Environmental Regulations’, which set out separate rules for the publication of environmental information and were introduced much later than the Freedom of Information Act.

Graham Smith agrees. He is deputy commissioner of the Information Commissioner’s Office and its director of freedom of information, and thinks that there’s “a lack of clarity” around the environmental regulations. In future, he says, “the greater legal clarity we can have, the better”.

Another complaint about the FoI Act is that it has changed the nature of public administration – in particular, the nature of record-keeping. Graham Howell, director of Ofcom England, noted at the recent conference that “there is no doubt in my mind that we do not record meetings as we used to before FoI. We may well have [minutes], but internal meetings are definitely not recorded in the full form they used to be before legislation came in. Our minutes are bland and if you compare current minutes with the minutes from previous regulators going back eight, nine years, there is a clear difference, and that is that comments by members of boards are no longer recorded.”

Howell said his organisation has been inundated with FoI requests over the years, and often he thinks they are not in the spirit of the act but submitted by campaigners – either “designed purely to irritate us”, or to try to find loopholes in regulation. Further, because OFCOM has to deal with a large number of legal complaints, he finds that solicitor’s firms will often use the rules to “steal a march” on his organisation’s legal representatives.

What’s next?

The government is reforming FoI in various ways. It has expanded the scope of the Act by changing clauses in the Protection of Freedoms Bill, which is currently passing through the House of Lords. These clauses expand the scope of FoI to include three new organisations: the Association of Chief Police Officers, universities and colleges admissions service UCAS, and the Financial Ombudsman Service. The Ministry of Justice is also consulting with 19 other organisations about expanding the Act, and has plugged a loophole which previously meant that it didn’t cover publicly-owned companies with multiple shareholders.

Natalie Ceeney is chief executive of the Financial Ombudsman Service and, for her part, is happy that her organisation is now covered by the FoI Act. “I think it will help hugely because it will bust myths; it will help people to understand what we’re up to; and it will inform best behaviour in financial services,” she said at the conference.

Ceeney believes that many of the problems with the FoI Act have arisen because departments weren’t transparent enough in the first place. “Most organisations hadn’t put nearly enough information out there proactively,” she commented. “The idea of intrusively asking for one thing and digging for it was meant to be a backup.” At the Financial Ombudsman Service, on the other hand, “we’ve started from the premise that we should be as open as possible.”

This approach fits in with the government’s plans. Mark Farrow, deputy director of information operations at the Ministry of Justice, explains that “one of the ways we are trying to get better is by looking at FoI as something that is part of a wider picture,” rather than “something that needs to be dealt with in very narrow terms.” Therefore, “we’re looking at publications schemes so that people don’t need to come and ask us for anything; or if they do, it’s because they can’t find it on the website or wherever else we may have put it.” According to Smith, the ICO is currently consulting on such publication schemes.

Finally, the government plans to make departments more transparent by introducing a ‘right to data’. McNally told the conference that this “will ensure that public authorities make datasets available in a reusable format, where they can, and make them available for reuse when releasing them in response to requests from publication schemes”.

Further reforms

In the longer term, government has requested that the Commons’ Justice Committee perform ‘post-legislative scrutiny’ on the Act to examine its impact. The Ministry of Justice is preparing a memorandum for the committee, setting out key questions and problems that it would like to have examined.

One particular problem is that of privacy. As the public sector opens itself up to greater scrutiny, government is starting to ask whether those putting in FoI requests should also be more transparent. Speaking to CSW, McNally says there is a question over whether freedom of information requests should be “blind or identifiable”. If an enquirer has put 2,000 enquiries into a department, he asks, shouldn’t they have to provide some basic information themselves?

Meanwhile, Smith warns of problems that could be caused by departments cutting their FoI teams. “We’ve heard anecdotal evidence that FoI officers and FoI teams are being reduced or that, where somebody used to do FoI as their exclusive area of work, they’re now having to combine it with other duties,” he warns, adding that the number of FoI requests continues to rise – creating a squeeze that could affect departments’  ability to respond efficiently.

Another issue facing the select committee is the cost of FoI requests to departments. McNally expects the number of FoI requests to reduce as departments publish more data automatically. Further, he thinks FoI can save money because it highlights inefficiencies. Yet government has asked the select committee to consider the case for charging for FoI responses. “There is no point in pushing out a wealth of information if the cost of doing so far outweighs the benefits to be gained,” McNally says. He was on a select committee that examined FoI ten years ago, and “the most enthusiastic evidence we got was from the Irish government. They already had a Freedom of Information Act and they made a big impression on us with how enthusiastic they were.” Now, Ireland has now introduced charging in order to deter “frivolous” requests for information, McNally says.

The public sector is changing; will FoI adapt?

Public service delivery is changing. Departments are becoming less responsible for frontline delivery, and instead charities, mutuals, the private sector and some publicly-owned companies are likely to deliver more services. Will they be covered by the FoI Act?

Publicly-owned companies are covered, although they may not be happy about it. McNally tells CSW that his expansion of the Act to cover organisations jointly owned by several public sector bodies has brought Manchester Airport within its scope, “and they may well say: ‘Why is it that we, who are a fully-functioning and very successful commercial airport, suddenly have the burden on our business when Leeds-Bradford airport or Luton Airport or any of the other privately owned airports don’t?’ I think there is an element of rough justice in this, which is why the question of private sector freedom of information will remain a matter for debate.”

At present, though, there are no plans to extend FoI to cover private companies. “The government is committed to reducing regulatory burdens,” McNally says. “It is for this reason that the government has not taken steps to extend the Freedom of Information Act to private companies providing public services under contract.”

This limit to FoI has met some criticism, notably from the Campaign for Freedom of Information. One of the campaign’s research officers, Katherine Gundersen, told CSW that this constraint will present immediate problems with the Department of Health’s NHS reforms. “Under the Health and Social Care Bill, the NHS Commissioning Board and the clinical commissioning groups will be subject to FoI requests but the individual providers won’t be,” she says. “The government has said that contracts will require the providers to assist the groups and commissioning board to assist with FoI requests, but we think it won’t cover the full amount of information that is currently provided.”

Conclusion

There’s always a tension within government between the desire for transparency and the need for secrecy. The FoI Act has highlighted some of the problems this created, raising – for example – the question of whether more transparency can sometimes lead to poorer public administration. Certainly, Howell believes that record-keeping practices have changed for the worse, and the cost of FoI is something to bear in mind as the public sector seeks to make savings.

However, many people support increased transparency, including the top leadership of the coalition government. McNally is also keen to press ahead with reform, and wants to extend the remit of the FoI Act – though probably not to cover private sector organisations, unless the Justice Committee and its witnesses make an inarguable case for such an extension.

Ultimately, it is hoped that the discussion around transparency will not be so focused on the FoI Act. Government intends FoI requests to be a last-ditch measure; and as departments publish more data, it expects to receive fewer requests. McNally is clear on the potential benefits of transparency: increased accountability; increased efficiency.

Tony Blair regretted introducing FoI. However, if it does drive up standards in public services and enable the public to better hold government to account, it may just turn out to be Blair’s best mistake.