Ministers need to ‘walk the talk on transparency’, says information commissioner

Denham slates Cabinet Office for FOI ‘clearing house’ stance and exemptions for new public bodies
Elizabeth Denham appears before the Public Administration and Constitutional Affairs Committee Credit: Parliament TV

By Jim Dunton

26 Nov 2021

Outgoing information commissioner Elizabeth Denham has told MPs the government is sending out the wrong messages on freedom-of-information and called for transparency laws to be updated.

She also told members of parliament’s Public Administration and Constitutional Affairs Committee she was taken aback by the Cabinet Office’s lack of openness about its so-called “clearing house” for Freedom of Information Act requests.

Denham’s five-year term at the helm of the Information Commissioner’s Office ends next week and she was giving evidence to PACAC for its inquiry into the clearing house, which campaigners claim blocks requests from some journalists and tells departments how to answer FOIs. But her comments covered wider ground.

She also took aim at ministers’ proposals to exempt some new public bodies from the Freedom of Information Act 2000, which came into law in 2005 and underpins FOIs.

Denham said she was perturbed about proposals from the Department for Business, Energy and Industrial Strategy for the new Advanced Research and Invention Agency – the brainchild of Dominic Cummings – to be placed beyond the remit of the act. She added that plans for a new environment body to be positioned similarly outside its scope were also problematic.

“I am concerned when new public bodies are created that are not subject to the same transparency requirements as other public bodies,” she said.

“When ministers are advocating for public bodies to be exempted from the act, that kind of tone from the top… that’s not a respectful tone about the importance of freedom of information. And I’m passionate about freedom of information: it’s part of our democracy.”

She said: “Ministers and the government of the day are not walking the talk when it comes to the importance of freedom of information.”

Clearing house concerns

Responding to MPs questions on the Cabinet Office’s FOI clearing house, Denham said it was possible that the operation provided a fair and impartial service but that without an independent review of its activities it was impossible to say.

She said her office had offered to conduct a voluntary audit of the clearing house, but the Cabinet Office had declined the proposal.

“It could be entirely legitimate – we just don’t know,” she said of the clearing house.  “There needs to be transparency about the transparency process.”

She added: “People will continue to be suspicious until an independent agency can have a look.”

“I was surprised when our offer of conducting an independent audit was turned down,” she said.

“I think the Cabinet Office missed an opportunity there because we would have gone in and provided evidence of the way that it actually operates in a way that would be helpful to ease some of the concerns and the opaqueness.

“I think it’s just increased suspicion of the clearing house as opposed to allowing us in the doors as a regulator to reveal to the public how it actually operates.”

After the session, a Cabinet Office spokesperson said the department's clearing house function had existed since 2004 “to ensure consistency in responses to information requests”.

“We are conducting an internal review on the way clearing house is run to ensure it is effective and as transparent as possible,” they added.

Need for reform

Denham said that almost 17 years after the FOIA came into full effect, it was clear that the legislation had not been kept up to date to reflect changes in the way government is delivered or respond to the expectations of citizens.

“This country needs modernisation of the act across the board, and that takes a deeper dive into looking at legislation around the world and where the best practices are,” she told MPs.

“There’s all kinds of international norms and measurements out there for who has the best FOI law and the UK law is slipping behind.”

Denham said there was a strong case for extending the remit of the FOIA to cover private sector companies delivering public services.

“The reality of the delivery of government services involves so much of the private sector now,” she said.

“But the scope of the act doesn’t adequately cover private sector businesses that are delivering public services. That’s a huge challenge, and I’ve seen statistics that say up to 30% of public services are delivered under private sector contracts, but those bodies are not subject to the law.”

Denham told MPs that when private sector firms had contracts to deliver public services they were “standing in the shoes of a public body in delivering those same services”. She said that where the value of contracts exceeded a particular threshold they should be subject to the FOIA. Denham proposed a figure of £5m.

ICO resources ‘stretched as far as they can go’

Denham said resourcing for the ICO had also failed to keep track with the times and said it would be the “first issue” her successor as information commissioner, John Edwards, faced in post.

“We’re at a tipping point. The elastic band has stretched as far as it can and now we’re contributing to – I think – some of the misery that applicants are feeling right now,” she said, referring to complaints about delayed or unanswered FOI request responses that go on to make up much of the ICO’s casework.

Denham said earlier in the session that her office – which is funded by grant-in-aid and sponsored by the Department for Digital, Culture Media and Sport  –  had seen its finances cut while its workload increased.

“The resources that my office have are 40% less than what we had in 2010 and at the same time our requests have increased by a third,” she said.

“We’ve used every creative move that we can think of, but without more power and more resources, the oversight of the act is not fit for purpose.”

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