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The Freedom of Information Act – more regrets

Tony Blair’s description of the Freedom of Information Act as a ‘mistake’ received much media coverage, and is now followed by Jonathan Powell in his book, The New Machiavelli. On pages 197-198, Blair’s former Chief of Staff makes several arguments criticising the legislation.

The first is that publishing internal advice will make civil servants more cautious when issuing advice. He also gives examples from other jurisdictions, where civil servants will not write down anything sensitive for fear that it will be released. There is something to this, but this should be addressed not by exempting all advice to ministers, but by striking a balance – as is currently the practice under the Act (looking at the importance of the issue, when the decision was made, etc). Of course, disclosure does erode the tradition of ministerial responsibility, but surely that was an accepted part of greater transparency.

The second is concerned with the costs of the FoI Act and the extra staff needed to deal with the requests. Yes, of course it costs more than not having an FoI Act, but I do not agree that this is simply ‘wasteful’ bureaucracy.

Powell’s third criticism is that the Information Commissioner has mixed roles: he is responsible for promoting transparency and also has an adjudicatory function deciding when information should be released. Powell argues that this means the Commissioner will normally favour ‘extending the boundaries’ of what should be released when hearing cases. Not sure this is fair. The Information Commissioner also has responsibility for protecting privacy and personal data, so it should not be assumed that his brief will always make him pro-disclosure. A mixture of policy and adjudicatory roles can also be found in other regulatory bodies. For example, Ofcom has a role in drawing up broadcasting standards while also acting as adjudicator. In any event, those unhappy with a decision from the Information Commissioner can always appeal to the Tribunal – that body does not have a policy role and has on many occasions taken a more pro-disclosure stance than the Commissioner.

Finally, Powell argues that while the Act was designed for use by citizens to access information held by government, it has largely been used by journalists to harass rather than illuminate. There is something in this criticism. The FoI Act can be used to get hold of an isolated piece of information or statistic, and then run a story of the ‘you couldn’t make it up’ variety without any background context or explanation.

One issue is with requests that are purely for entertainment and say little about the workings of government. The complaint is not new. In 2007, critics complained that people were using the Freedom of Information Act to find out how much the Foreign Office spent on Ferrero Roche chocolates or how many people were reported to have had sex with sheep in Wales. Requesting trivial information is not a good use of public funds, but how common is this really? In any event, the public authority do not have to reply to vexatious requests.

More common are stories on public spending. A couple of days ago the Express, using a FoI request, reported that the Forestry Commission spent £8,000 on contractors watering plants at its HQ. Similarly, other stories report the amount that is spent by the NHS on consultants. These statistics are not contained as part of a broader investigation by the newspaper, the sum spent is the story. The story does not provide much additional information, like why the authority thought it was a good idea to use the resources in this way or what proportion of the authority’s budget was spent on plants or consultants. Instead the story is just giving you the bottom-line sum. Few people are going to approve of a public authority spending money on something that does not appear to be part of its core remit. As a result, the FoI Act can provide a fairly quick and cheap route to stirring up public outrage.

Does this mean the FoI Act was a mistake? Absolutely not. While you may not like the way the information is being used, that is not a reason to deprive the people of the information. Of course, we may want the media to behave more responsibly in its analysis, but I don’t think that can be enforced by keeping people ignorant. There are also many important stories that are published due to the FoI Act – so maybe the other stories are the price we pay.

I also do not agree with the line of argument that the FoI was for individuals to use and not journalists. The critics say the FoI is used to boost newspaper profits. In other words, the cost of administering the FoI is a kind of subsidy to the media, as the public authority carries out (and pays for) research that is then used by the media. The response to the criticism is that there are already some controls on the costs of requests. The cost is also less than the sums spent by the government on its own press relations operations, which feed positive stories to the media. It is also no surprise that the media use the Act more (and the experience overseas would have told the government that before the Act was passed). Most people do not carry out their own investigations into the workings of government and, instead, rely on the mass media as the source of information. The use of FoI is necessary to the media in performing its central functions in holding government to account.

The Freedom of Information Act has some uses and consequences that are good and others that are bad. No system can be absolute and some guards must be in place to protect privacy, for example. But I don’t think this is a reason to conclude the Act was a mistake.

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