More freedom, less information

The Freedom of Information Act was supposed to guarantee transparency but has ensured controversial decisions are shrouded in secrecy

This article is taken from the October issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.

This year marks the fifteenth anniversary of the Freedom of Information Act (FoI) and its European half-sister, the Environmental Information Regulations. It’s not something I would have thought about except for a phone call from a civil servant at the department to which I was loosely attached as the government’s Commissioner for Shale Gas — a post from which I resigned a year and a half ago.

The role was controversial, with a high-profile campaign against it. I knew there would be constant requests for every correspondence, email, note and diary entry to be published. I had no problem with being open and transparent. This time, though, there was an appeal, a review, a further appeal, and now, about one and a half years later, a final decision.

As a result, the world will now know that I had email exchanges with the fracking industry. These emails — and even meetings with the industry — were what the Shale Commissioner was commissioned to do, liaising between residents and the industry. These meetings were in the diary that I had published months earlier, so the only revelation was that the meeting had taken place at Starbucks.

This request, and many others like it, occupied both my time and that of numerous civil servants from the day I started work through to a whole year after I finished.

Many campaign organisations depend on FoIs to try to uncover embarrassing facts to organise around or to gum up the whole machinery of government, to wear down departments and ministers in the hope that they decide to drop a policy because it’s just taking up too much time.

Is this really what we had in mind when we campaigned for Freedom of Information all those years ago? Is this what Tony Blair meant when he talked with such passion about it in his 1996 John Smith Memorial lecture? “The first right of any citizen in any mature democracy should be the right to information. It is time to sweep away the cobwebs of secrecy which hang over far too much government activity.”

Over the following 14 years his views changed. In his memoir he said, “I quake at the imbecility of it.” That’s a bit harsh. The principle of freedom of information is as important today as it was then. As the 1997 Labour Party manifesto said: “Unnecessary secrecy in government leads to arrogance in government and defective policy decisions.”

Giving people the right to see the information that public bodies hold on them has led to greater accuracy — and to doctors, civil servants and social workers being a lot more polite in what they commit to paper.

As Francis Maude used to say, giving people as much access to government data as possible will improve its quality because it will “create an army of armchair auditors”. But that’s data. It’s not private conversations — and that’s where Freedom of Information has given us less freedom, a lot less information and much worse government.

One former minister who was looking at other countries to find out how Freedom of Information legislation worked visited Ireland. The Irish team was effusive in its praise for the openness, transparency and honesty that it had brought. As they left the room, the Irish minister put his arm around his UK counterpart and said, “Right, that was for the minutes.” Then he added quietly and out of the reach of his team, “You’d be insane to do it.”

He explained that there now had to be two meetings: the ones that are minuted, to be released under FoI, and then the real meetings where no minute-taker or civil servant was present.

And so was born sofa government. Meetings with civil servants taking notes became, in effect, the dictation of press releases, while the real decisions were taken elsewhere, often without experts or critics present. While a small group of politicians discussed policy, their civil servants, whose time and expertise would be far better used challenging and advising ministers, were busy compiling logs of mainly meaningless meetings and minutes to be released under FoI.

FoI has created a parallel bureaucracy whose cost is literally incalculable and whose value is questionable

It really can’t be any other way. Coming to a good decision in government involves looking at the background information, exploring the cases for and against as well as the possible perverse incentives that a policy might create. All need to be talked through and put into context.

Crucially, the political consequences need to be understood and taken into account. “Could this lose us the election?” is a perfectly legitimate question for any government to ask — but one that wouldn’t look so good splashed across the front pages.

Until now, these conversations always came to light under the 20-year rule when cabinet papers are published. Knowing that the details would only be revealed two decades later allowed people to speak freely and openly. Historians and academics have archives from which modern politicians continue to learn.

But no more. Knowing that every detail of any meeting, however informal, is publishable within 20 days without any context means that the meetings just don’t happen in the way that they used to. We no longer have to wait 20 years to find out how a controversial policy decision was reached because that information now does not exist. We will never know.

Who does this immediate release of information benefit? It’s great for opponents and campaign groups trying to undermine or embarrass a government. But has it really achieved Tony Blair’s vision of “a new relationship between government and people: a relationship which sees the public as legitimate stakeholders in the running of the country”?

In many ways it has had the opposite effect. In the old days, people would vote for a Member of Parliament whose full-time job it was to scrutinise the government and hold it to account. MPs sit on select committees, submit parliamentary questions, take part in debates and lobby governments on behalf of their electorates. They audit the money that governments spend on their constituents’ behalf.

MPs take an all-around and long view on decisions and their consequences. If you don’t like the way they do it, or you don’t think they do it well enough, you can vote them out. There is a direct link between the tax we pay and the people we elect to scrutinise the spending of it.

If the media needs space for open and honest debate why does the same not apply to government?

If that system wasn’t working, or if FoIs were merely cutting out these middlemen and allowing The People to scrutinise government better, then there wouldn’t be an issue. But that’s not what’s happening. What Freedom of Information legislation has done is to create a parallel bureaucracy whose cost is literally incalculable and whose value is questionable.

It’s not only the cost of the Information Commissioner and her office, and the many people whose sole responsibility it is to oversee FoI requests in government departments, but also every civil servant who has responsibility for any requests that cover their area. It means that the amount of time spent on a request cannot be measured, even though an FoI request (free to the requester) forces a civil servant to drop what they are doing and prioritise finding the answers within the 20-day time limit. That’s emails, diary entries, notes from meetings, text messages even. Especially while government is dealing with coronavirus, there are almost certainly better uses of civil service time.

It’s why campaigning charities and NGOs, even some that receive taxpayer money, have long resisted being covered by Freedom of Information on the basis that it would cost them too much and distract from their core activities.

Freedom of Information is popular among journalists, and it’s true that it has revealed horrors that might otherwise not have been uncovered, but there has been a wider impact. At a time when the traditional press is struggling to compete with its social media challengers, the one thing it had in its favour was trust and reliability. Facts were pursued and double-checked — and scoops really meant something.

Where now are the incentives to spend hours knocking on doors, building relationships with local councillors and the police or ploughing through dense documents when you can submit a stack of FoIs, then sit back and wait for 20 days for the fact-checked headlines to land in your inbox?

And what about public service broadcasters? The BBC is taxpayer-funded but is not under the same obligations as government in the information it has to release. A Supreme Court ruling in 2012 which allowed the BBC to hold back a report requested under FoI was welcomed by the corporation on the basis that the decision safeguarded the “space to conduct its journalistic activities freely”. It said: “Independent journalism requires honest and open internal debate free from external pressures.”

As Jack Straw, who was home secretary when Freedom of Information was introduced, says, “What is sauce for the media goose must be sauce for the government gander.” If the media needs space for open and honest debate, if cost is an issue for charities and NGOs, why does the same not apply to government?

The answer is that it should. If we want honesty and transparency, then let’s start calculating the real cost of allowing Freedom of Information such a wide reach — in taxpayer pounds, in what it has done to our civil service and how decisions are now made in government.

At least that way we will give future generations the chance to learn from our mistakes.

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