WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO
March 04 2021
WE ARE A MAGAZINE ABOUT LAW AND JUSTICE | AND THE DIFFERENCE BETWEEN THE TWO

Freedom of information: clearing houses, blacklists and the need for reform

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Freedom of information: clearing houses, blacklists and the need for reform

Red Cell: Patrick Maguire from Proof magazine, issue 4

Of all the governments that the recent openDemocracy report could have been released under, it is appropriate that it is Boris Johnson’s. OpenDemocracy, an online magazine, have found that the UK government, at both a local and national level, is increasingly unwilling to engage with the Freedom of Information Act (FOIA), preferring to prevaricate, obfuscate and delay in sending responses, rather than comply with requests promptly and candidly (see here).  

Every government is averse to scrutiny in some way, but it is Johnson’s that has shown the most disdain towards it.  It has sought to isolate the media, preventing journalists and broadcasters from properly examining its conduct. At one stage, ministers were stopped from appearing on political programmes that subjected them to incisive questioning, like Channel 4 News or Radio 4’s Today Programme, and last year, Lee Cain, then a communications adviser, tried to block some members of the press from attending an official government briefing, thwarted only by the camaraderie of the political lobby, who staged a boycott.  

Alongside this, attacks on the judiciary and human rights laws have become quotidian, with ministers openly questioning the legitimacy of judges after losing in the courts, and with the government having now launched two separate reviews, the Independent Review of Administrative Law and the Independent Review of the Human Rights Act, clearly hoping to clip the judges’ wings. 

This is behaviour that, while undesirable and undemocratic, is not strictly speaking unlawful. But what the behaviour uncovered in the openDemocracy report reveals is that when it comes to disclosing information to the public, the government may have ceased to comply with the letter of the law as well. 

The FOIA was enacted during Tony Blair’s government, recognising that citizens have the right to know how the government, acting in their name, has come to its decisions.  Such a right is crucial for any true democracy.  If people are to effectively hold their government to account, it must be possible for them to scrutinise and question the government’s decision-making, something that cannot be done if they don’t have the information relied upon in the first place.  Given this, it is alarming that central government is refusing more FOIs than ever, with Whitehall departments relying more and more on the myriad exceptions available to them under the FOIA, ranging from excessive cost (with the paltry figure of £600 enough to absolve the public body from fulfilling the request) to national security.  

But while it is important for citizens at large to have access to such information, it is arguably even more crucial for the press.  Journalists and investigative reporters have the skills, motivation, and – most crucially – time to use FOIs effectively, using them to garner information and uncover scandals that governments would prefer to have kept firmly under the rug, and to expose venality, corruption and waste.  Most infamously, the MPs’ expenses scandal was dragged from the mire as a result of an FOI request, while requests have also uncovered outrages ranging from the existence of a secret British torture programme based in Germany after World War II to the revelation that hospitals were disposing of miscarried foetuses as clinical waste.  

This is why the disclosure of a ‘Clearing House’, allegedly operating from within the Cabinet Office, is profoundly concerning.  FOI requests are supposed to be subject blind, with the requested department ignorant of the identity of the applicant.  While the FOIA is riddled with exemptions, there is no provision for the government to treat requests from journalists or campaigners any differently from those from ordinary citizens.  In theory, at least, the government is well aware of this, with a statement issued by the Cabinet Office acknowledging the existence of a body performing a ‘clearing house function’, and accepting that it ‘would be unlawful for the Cabinet Office, or other departments, to blacklist enquiries from journalists…’. 

The focus of the government should be on ensuring that requested information is released efficiently and transparently, not on cutting off funding to the Information Commissioners Office (which has seen its budget effectively cut by 41% over the past ten years) and establishing secretive operations that seek to obstruct the release of information.  As well as these alleged ‘watch lists’ of journalists and campaigners, public bodies are turning to more prosaic ways to stymie requests, sometimes simply choosing not to respond FOIs, leaving the applicant in limbo, unable to ask for an internal review of the decision without a refusal, but also left without the information they want or need.  

Ostensibly, it is the role of the Information Commissioners Office (ICO) to step in and redress this, but it has been reluctant to bring all the tools at its disposal to bear on obdurate public bodies. Over the course of its history, it has only issued four enforcement notices against public authorities, which are intended to force authorities into line if they repeatedly fail to comply with requests. Not only does this fail to hold public bodies to account for their failures, but it serves as a signal to other public authorities that there is no need to comply with the Act, with there being little risk of any real sanction being imposed upon it for violating it.  With public bodies’ finances now desperately stretched, refusing to comply, even for those that aren’t trying to deliberately evade requests, may seem the more financially sustainable solution. 

Significant reform is needed for the FOIA to have the effect it is intended to.  While Blair may call himself a ‘nincompoop’ for his ‘imbecility’ in passing the Act, the need for citizens to have access to government information is fundamental in any democracy.  As the scandal over the Queen’s consent has shown us last week, much of government takes place behind closed doors, with hidden pressures shifting government policy and changing legislation.  Some secrecy is inevitable in government, but the FOIA should be redrafted to give the ICO genuine power to push back against government protestations like that the information cannot be effectively gathered, or that its disclosure poses a risk to national security. 

The thought of Johnson’s government enacting the reforms necessary is almost laughable. But a future government, perhaps one led by Keir Starmer, that recognises the need for accountability should let the moment pass, rather than blinded by the allure of having unaccountable power themselves.  

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