The Freedom of Information Act - like our HRA - is under attack

Posted by Bella Sankey on 04 August 2015

For more than eight decades, Liberty has sought to hold governments to account, ensuring they make fair and just decisions which do not infringe on our fundamental rights and freedoms.
 
For the last 10 years, the Freedom of Information Act (FOIA) has played an essential role in helping us do just that. Information disclosed under the FOIA has been critical to some of our most successful legal cases, including challenging discriminatory stop and search and the degrading treatment of detained immigrants.

But, if the Government gets its way, that may not be the case for much longer. Earlier this month, it announced the formation of a new Commission on Freedom of Information, claiming it is needed to scrutinise:

  • whether there is an appropriate public interest balance between transparency, accountability and the need for “sensitive information to have robust protection”
  • whether the operation of the Act adequately recognises the need for a safe space for policy development and implementation and “frank advice”
  • the balance between the need to maintain public access to information and the “burden of the Act” on public authorities

Announcing the review, Cabinet Office Parliamentary Secretary Lord Bridges insisted the Government supported the FOIA, but added: “after more than a decade in operation it is time that the process is reviewed, to make sure it’s working effectively.”

Either the Government has a disturbingly short collective memory, or it has intentionally omitted to mention that the FOIA has been subject to a process of thorough scrutiny by the cross-party parliamentary Justice Select Committee just three years ago. Happily, we can jog their memory: the extremely thorough report remains available online.

After considering expert written and oral evidence over seven sessions from witnesses including senior politicians, journalists, academics, civil servants and organisations including Liberty, the Committee found the FOIA had been a “success”, had “enhanced the UK’s democratic system” and had made our public bodies “more open, accountable and transparent”, concluding that its scope should not be diminished.

Committee Chairman Sir Alan Beith said at the time: “The Act was never intended to prevent, limit, or stop the recording of policy discussions in Cabinet or at the highest levels of Government, and we believe that its existing provisions, properly used, are sufficient to maintain the ‘safe space’ for such discussions.”

He also dismissed concerns about cost, saying: “Evidence we have seen suggests that reducing the cost of FOI can be achieved if the way public authorities deal with requests is well-thought through. Complaints about the cost of FOI will ring hollow when made by public authorities which have failed to invest the time and effort needed to create an efficient freedom of information scheme.” Indeed, the right to access information under the FOIA is already subject to practical restrictions, including an exemption where the cost of complying would exceed an ‘appropriate limit’.

The Committee’s comprehensive report addresses all the concerns which, according to the Government, its new review has been established to consider. Why, then, the sudden pressing need for another one?
 
In his statement, Lord Bridges avowed the Government’s commitment to being “the most transparent” in the world, pointing to the volume of information publicly available via data.gov.uk. Of course, governments and public authorities can promote greater transparency by proactively publishing information. But without FOI requests – as the Justice Committee concluded in 2012 – decisions on what to publish will always lie in the hands of those in power. Or, to put it another way, in the hands of those with a vested interest in keeping certain politically embarrassing, contentious or damning information well out of the public’s reach. A chilling thought.

The new Commission is dangerously stacked. Chaired by Lord Burns, it includes Jack Straw who is already on record saying the Act should be rewritten, is currently subject to criminal investigation for his alleged involvement in the kidnap and rendition of a Gaddafi dissident and had to suspend himself from the Labour party earlier this year following a deeply embarrassing Dispatches and Daily Telegraph “cash for access” sting. The Commission also includes former Conservative leader Lord Howard (who was at the sharp end of FOI requests during the expenses scandal) and Lord Carlile (whose views on the paramount importance of secrecy are well-known).

This attempt to crack down on the FOIA is breathtakingly hypocritical, taking “no privacy for you, no scrutiny for us” to a whole new level. It may well give Government cover to pull down the shutters, denying us access to information of potentially profound public interest.  To seek to limit their accountability in this way, in the face of such recent scrutiny showing that the FOIA is working well, reveals a startling contempt for the public’s right to know how our institutions are run and how our money is spent.

The FOIA’s impact over the past decade has been invaluable. Without it, we would not have known about the MPs’ expenses scandal, police use of tasers on children, the incineration of miscarried and aborted foetuses as clinical waste, Sir Cyril Smith’s attempts to threaten police investigating claims he had molested young boys and hundreds of care home residents dying of thirst. The list goes on and on, and includes countless regional news stories which – though they may not make it into national headlines – are of vital importance in holding our local authorities to account.

All matters of indisputable public interest. All revelations which led to, or will hopefully lead to, positive changes in the way our public bodies are run. All stories it would have suited authorities to keep firmly behind locked doors.

We have very few pieces of legislation which let us hold our public institutions to account. The Freedom of Information Act is one. The Human Rights Act is another. It appears our new Government is intent on curbing both – and they cannot be allowed to get away with it.