When the Freedom of Information Act (FOI) was first introduced in 1997, it was heralded as a major breakthrough for transparent working within the public sector. Its usage over the years has brought all of these services directly to account, but it has led to many concerns from politicians that journalists are treating the FOIA as a weapon, and as such, merely as a news story generator.
The Act was put forward in 1997, by the then Labour Government, as part of the White Paper, “Your right to know: The Government’s proposals for a Freedom of Information Act”. In this white paper, it’s initial remit was designed to show “more open government based on mutual trust”. [1]
Previous Governments, and public bodies had been accused of being secretive with information and data, and that members of the general public were not able to get the full picture of what was going on behind, so-called, closed doors.
Since its official introduction in 2000 in England, Wales and Northern Ireland, and 2002 in Scotland, the FOI act has had its critics, and even the man who spearheaded the legislation, the then Prime Minister, Tony Blair, who said in his memoirs that he regarded one of the biggest mistakes in his tenureship was “not the Iraq war but the introduction of the Freedom of Information Act”.[2]
Everyone is able to use the FOI act as a citizen, regardless of his or her geographic location. Journalists and other organisations such as campaign groups are entitled to use the FOI act in their day-to-day work.
Tim Farron, leader of the Liberal Democrats argues the case that FOI isn’t just for journalists to find news stories. Farron states “FOI is not just a nice journalistic tool” and that “FOI is actually about making sure that decisions that are made about the British People are accessible to the British People”[3]
Over the years, Journalists have used the act as one of their many tools for their role of news reporting, requesting data that is not generally published as part of annual reports or within press releases. Using that information, the public bodies have been made more accountable for taxpayer’s money, and the decisions that they have made.
News organisations can, and should still, be able to hold public bodies to account, but as with all journalists, there has to be balance to a story, no matter whether that is online, print, or via broadcast media.
Looking at the news over since the FOI act was introduced, there are many stories where it’s use has been a catalyst to the story breaking, and one of the biggest stories to break using the FOI act was the MP’s expenses scandal in 2009.
Under the FOI act, a series of requests were made to Parliament requesting details of MP’s claims using taxpayer’s money. With these requests, the House of Commons staff had to produce receipts, invoices, and other relevant information detailing the claims over a period of years.
This material was printed, first in the Daily Telegraph, and then by the wider media, and resulted in many MPs resigning, or retiring at the next election, and in 6 MPs and two Peers being imprisoned. Further to the scandal, and after an independent audit, a revised pay and expenses system was introduced, and it could be argued that the whole affair has led to a drop in the esteem of Parliament within general society.[4]
One particular example of an MP is Elliot Morley, former Labour MP for Glanford and Scunthorpe, who claimed £16,000 for a mortgage that no longer existed. An article written by Gordon Rayner, quoted a senior source close to the then Prime Minster, Gordon Brown, saying that “It was at that point that Gordon Brown decided there would have to be swift sanctions against anyone who had broken the rules.”[4]
By the Media’s use of the FOI act, Members of Parliament were forced to repay a total of £163,867, which was deemed to be outside of the general claims procedure.
Without the Daily Telegraph requesting the data, and subsequently printing the story, it could be argued that this information may never have come to light.
Politicians are looking to restrict access to data under the FOI act, with the Leader of the House of Commons, Chris Grayling, saying in reply to a question in Parliament from Jack Dromey, Labour MP for the Birmingham Erdington constituency on 29 October 2015, that “It (FOI Act) is, on occasion, misused by those who use it as, effectively, a research tool to generate stories for the media, and that is not acceptable.”[5]
Critics may argue that politicians trying to change the FOI Act, are in fact trying to control what the general public are entitled to know, either as individuals or as part of a free press. Dromey re-enforces the criticisms by stating that restrictions to the FOI Act are “a threat to a cornerstone of our democracy” [5]
There are many other examples of stories that have been exposed by journalists making requests under the FOI legislation.
These include the rise in A&E Ambulance Waiting times [6], unanswered 101 telephone calls [7], changes in immigration patterns [8] and knife amnesty [9], and it is the work of journalists across the country, who have used the FOI Act, to demonstrate where public bodies have fallen short in their efforts to serve the public.
Chris Bryant MP, Shadow Leader of the House of Commons argues that these stories may still be undiscovered if it wasn’t for the journalists able to use FOI. In November 2015, he stated that “countless public interest stories have come to light only because of FOI. It is an essential part of a free press today”.[10]
However, it could be argued that by journalists making vexatious requests for data, one of the dangers is that public bodies may hide behind the legislation that is contained within the act. Although journalists requests account for 10 per cent of all requests to Central Government, it accounts for 21 per cent of the total cost.
An FOI request can be refused on the grounds that “Where a public authority has previously complied with a request for information which was made by any person, it is not obliged to comply with a subsequent identical or substantially similar request from that person unless a reasonable interval has elapsed between the compliance with the previous request and the making of the current request”.[11]
If a journalist requests information that has already been requested and refused on these terms, then the staffing costs to respond to the request could have been used elsewhere to deal with other queries, or utilized within other areas of the public body.
Similarly, if a request is too broad, and it is refused, then journalists may decide to break down the FOI requests into smaller requests, which the public body are entitled to refuse if these requests are identified as being “disproportionately burdensome”, and may be deemed to be an “industrial” use of the legislation.[12]
Each FOI request has a physical cost to the body to whoever the request has been made. Within the legislation, staffing costs for FOI are calculated at a rate of £25 per hour, and depending on the type of body, a limit of £450 per request for local government and £600 per request for central government will apply.[13]
In 2010, Birmingham City Council, the United Kingdom’s largest local authority, stated that the costs incurred by FOI requests was £800,000, from a total budget of £3.376 billion, a figure that represents 0.023 per cent of the money allocated to the authority. In another context, that would pay for the salaries of 59 workers, being paid the minimum wage of £6.50 per hour.[14]
It has been suggested that in the future, FOI requests may attract a small charge to the requester. This has been suggested as an option by Lord Terry Burns, head of The Independent Commission of Freedom of Information [15], but has been strongly opposed by Paul Gibbons, publisher of the FOIMan website. Gibbons argues that a charge would “limit access to information to those who can afford it. The low paid, elderly, unemployed and other groups with limited incomes would be disproportionately affect by such a charge”. [16]
Public bodies have 20 working days in which to respond to a FOI request, in which is has to respond to the request or provide reasonable grounds for its refusal. If the request is not responded to within that time frame, then the public body, could be liable for sanctions, which can include financial ones, which again would take further money out of an ever-shrinking pot of public sector finance.
Ross and Whittaker discuss the relationship between FOI requests and the release of data, and that local government still has a “deeply ingrained resistance to releasing information”, where “some public information may be politically sensitive or even embarrassing” to individuals or the body as a whole. [17]
It could be argued that by Central and Local Government attempting to restrict the release of data using parts of the legislation, that it goes against the very spirit of the FOI act with its promise of increased transparency.
Nick Maxwell puts forward the case that the Government wishing to restrict access to FOI requests is a “weakening of UK citizens’ rights of freedom of information should be a matter of concern”.[18] This is in direct opposition to the vision put forward in November 2015, by David Cameron, Prime Minster of the United Kingdom, where he stated that he wants to make Britain have “the most open and transparent government in the world”, but by imposing restrictions on the accessibility of information, it would go against the spirit of what the FOI was designed to achieve. [19]
Tom Watson, the Labour Party’s Deputy Leader further emphasises Maxwell’s statement by saying that “a more open government will be a better government with more robust policy making”.[20]
In the white paper proposals, the introduction discusses why FOI was needed back in 1997. It states “the perception of excessive secrecy has become a corrosive influence in the decline of public confidence in Government. Moreover, the climate of public opinion has changed, people expect much more openness and accountability.”[21]
Things have changed in the past 18 years. The political colour of the Government has changed, and it could be said that after stories have been published that have shown waste within the public sector, that the General Public want to keep the transparency, and not be restricted to the information that they are allowed to view.
Heather Brooke, Journalist Professor at City University London argues that “public bodies should not feel obstructed by FOI, but treat it as a legitimate way of releasing information”.[22]
It could be argued that by engaging with the press, and general public, the relationship between all parties will be stronger, and lead to better links and increased confidence in the public sector.
The Freedom of Information has brought individuals and public organisations to account, and any changes will need to be considered carefully by all sides, as it could be argued that going back to pre-1997 with Governments, both central and local, shrouded in secrecy, must not be allowed to happen.
