Are the rules about to change for Freedom of Information?
‘Please provide me with all emails from the private accounts of Mrs Blurt on matters of official government business.’
That was one of a series of requests made under the Freedom of Information Act 2000 (FOIA) which saw the Information Commissioner rule in 2012 that emails sent to advisers by then Education Secretary Michael Gove from a private account (named ‘Mrs Blurt’) should be disclosed.
While it may have come as little surprise that ministers wanted to keep private conversations with advisers private, the ruling meant that private emails were not exempt from FOIA if they related to official government business.
So why the history lesson?
Well this week you may have seen reports that three years later, Mr Gove, now Secretary of State for Justice – the department responsible for Freedom of Information policy – is looking to change the rules on when public bodies must disclose. During Justice Questions on Tuesday, he confirmed his view that the FOIA needed to be revisited and that there has been ‘a worrying tendency in our courts and elsewhere to erode the protections for that safe space for policy advice.’
Plans might include reducing the maximum cost of processing a request before it is rejected or allowing ‘thinking time’ from officials to be a factor in that calculation. The outcome being that a greater number of requests would likely be turned down.
Newsnight Policy Editor Chris Cook has written that the FOIA is already weak, before any further reforms, and is critical of the failure by the Information Commissioner’s Office (ICO) to address what he describes as ‘a serious compliance problem in Whitehall’.
I’ve been deemed “vexatious” by the Cabinet Office for asking for a named day’s worth of correspondence by a named civil servant.
— Chris Cook (@xtophercook) June 24, 2015
However, the ICO, which is responsible for both investigating data protection breaches by any organisation, as well as upholding complaints on handling of FOI requests by government, has warned that budget cuts are making it more difficult for it to do its job promoting ‘greater efficiency and accountability in the public service’.
It was also reported last week that a system introduced by the Labour government a few weeks before it came into force in January 2005 means that emails sent by Downing Street are automatically deleted within three months.
This is in marked contrast with the data retention requirements on financial institutions to assist potential regulatory investigations, especially around trading. And does this impact public sector attitudes towards Freedom of Information and accountability more widely?
Campaigners often rely on tools such as FOI requests to build their case across a range of issues and sectors, from access to healthcare, to spending by local authorities. Will other public bodies, such as in the NHS, follow Number Ten’s lead?
A Justice Select Committee report in 2012 claimed that while FOI has costs, ‘it also creates savings which accrue from the disclosure of inappropriate use of public funds’. As for a new methodology for calculating processing costs, it warned against including ‘subjective activities such as reading and consideration time’, which would introduce ‘an element of inconsistency into the process that undermines the fundamental objective of the Act’.
Campaigners from across the political spectrum are unlikely to welcome such moves. Unless the Government can offer a credible narrative around an ‘open data’ alternative, those who advocate changing what they see as ‘out-dated legislation may find they face a degree of opposition.
This is an abridged version of an earlier article, which can be viewed here.