Information commissioner warns against ‘unhealthy’ government FOI exemptions

Regulator also highlights risk of criminal sanctions for failing to maintain public record
John Edwards. Photo:

By Tevye Markson

07 Jun 2023

Information commissioner John Edwards has warned the government against exempting organisations from Freedom of Information requests.

When launching the Advanced Research and Invention Agency in February 2021, the government exempted the public body from answering all FoIs, claiming this would “cut inappropriate bureaucracy”, and has refused to reverse this decision.

Discussing this situation, Edwards told MPs: "I would not like to see that trend continue, I think that’s unhealthy...unnecessary and ultimately that would be counterproductive.

“We need to be vigilant in maintaining direction of travel towards increased transparency and avoid any temptation to slide back.”

Speaking to the Public Administration and Constitutional Affairs Committee, Edwards also raised concern about the use of FOI exemptions by departments, calling for greater transparency.

“While I’m eager to present a positive picture to the committee, I am not Pollyanna and there is still work to do,” he said.

“I am disappointed that we don’t have greater clarity and consistency around the application of exemptions, for example in relation to policy advice,” he said.

“And for me, that would be a challenge for the next level of maturity in transparency, that we are seeing more proactive publication of material which illuminates the workings of government.”

Edwards said the ICO is working particularly closely with the Cabinet Office, which receives the highest levels of FOI complaints against it.

They have got a high volume, their cases are typically more complex, they often involve a range of other departments,” he said.

“And the approach we have begun with them is that, they’ve drawn a line under the calendar and are dealing with all new matters in accordance with the statutory obligations. And we’ve had conversations with them about how we can work on that backlog and bring that down.”

Ministers could face ‘criminal sanctions for failing to maintain a record’

Edwards also sent a warning on the potential consequences of failing to maintain the public record.

A recent update to Cabinet Office rules on the use of unofficial communication channels warned officials and ministers must not use ‘disappearing messages’ functions in any way that impacts on their recordkeeping or transparency responsibilities.

Asked what sort of sanction a minister could face for using such a function, Edwards said it was “a little perilous to speculate on hypotheticals” but warned that “there are criminal sanctions for failing to maintain a record or destroying a record”.

Edwards said the Cabinet Office guidance is "pretty clear that if it is government business conducted on a non-corporate communication channel it must be retained as part of the official record" .

"So no, they [ministers] shouldn’t be using disappearing messages in the conduct of government business,” Edwards added.

The debate over Whatsapp use in government has reignited in the past few weeks amid a dispute between the Cabinet Office and Covid Inquiry over the handing over former prime minister Boris Johnson’s messages.

In response to claims that senior officials, ministers and special advisers used Whatsapp to make key decisions during the Covid-19 pandemic, former health minister James Bethell said earlier this week that most messages were about coffee orders, not key decisions.

Referring to these comments, Edwards said “the frothiness of coffee” does not need to be forwarded to the record but “discussion setting up a meeting where a decision is to be made ought to”.

As part of the Cabinet Office rule-update, officials and ministers were also banned from using non-government communications platforms to conduct official business on anything above government’s lowest level of security classification.

Edwards said he thinks the changes go “some way towards” providing reassurance over transparency in government.

He said it is important that government business can benefit from new technologies that can improve efficiency but these developments should be supported by policies that “ensure the security of the data and the maintenance of the public record”.

The data watchdog warned in its 2022 Behind the Screens report that the rapid increase in the use of messaging apps and technologies like WhatsApp and the lack of controls might lead to important messages being lost.


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