Giving nothing away

This government has routinely flouted its own freedom of information legislation

As part of his promise last month of more open government, Gordon Brown dropped plans which would have undermined the Freedom of Information Act with higher charges. Information Commissioner Richard Thomas applauded the move, adding that the act was working well. But is it?

And is Thomas, the man charged with enforcing it, up to the job of challenging a government that routinely flouts its own legislation?

Under Section 50 of the act, Thomas is obliged, with some exceptions, to investigate all complaints that public bodies are not complying with disclosure obligations. But his case log - obtained under the FoI - shows that he closes a staggering 87 per cent of complaints without a decision. An important tool in this is his Orwellian "robust approach to complaints".

If, for example, you complain that a public authority has not responded within the statutory four-week deadline, Thomas deems it "frivolous" - one of the exceptions in Section 50 - and closes the case.

When I complained that the Cabinet Office was refusing to answer an FoI request, Thomas refused to investigate on different grounds - that "there is no strong public interest" - setting the bar far higher than parliament did. The Information Commissioner's Office (ICO) will not say whether Thomas thinks the two are the same, but admits it has not checked whether its "robust" approach is actually legal.

Should the man responsible for cracking down on evasion be so recklessly evading his own responsibilities?

With Thomas signalling that he won't enforce the deadlines, some authorities are spinning out their response times as long as they can. As David Leigh, the Guardian's investigations editor, points out: "Delays can make information useless to journalists."

The ICO denies giving up on the deadlines in the act but says that, with "limited" funding, its "enforcement focus is on changing authorities' behaviours". If an authority repeatedly fails to comply it will "consider what action is appropriate". I tested this with an FoI request about the ICO's treatment of the Cabinet Office, a serial offender in my experience. Out of 18 complaints alleging failure to respond on time, Thomas has issued decisions on just four, with three cases robustly closed. All four decision notices find the Cabinet Office in breach of the act.

So Thomas has found repeated non-compliance by the Cabinet Office but is deliberately closing complaints. He doesn't want to know. The ICO admits to making no assessment of the Cabinet Office's compliance with the act, making no attempt to change its behaviour and taking no enforcement action on late responses, ever.

Heather Brooke, author of the book Your Right to Know, a guide to using the act, believes that Thomas has single-handedly destroyed the statutory deadlines, changing authorities' behaviour for the worse. "They are all getting the message that he's not doing anything," she says.

Huge numbers of cases are withdrawn. Often this is legitimate, following informal resolution, but complainants are also told they won't get the decision they want and are invited to withdraw complaints, depriving themselves of the right to appeal to the Information Tribunal.

With no sense of irony - or fairness - Thomas also declares cases "abandoned" if complainants themselves do not reply promptly to correspondence, while giving government departments months to respond to ICO inquiries.

Brooke accuses Thomas of a deference to authority that amounts to institutional bias. This year, together with the Guardian, she successfully challenged Thomas's ruling that the BBC was entitled to withhold the minutes of the governors' meeting that sacked Greg Dyke. The tribunal found the BBC's arguments "unimpressive".

My own experience has been that ICO investigators are too willing to accept civil servants' excuses and largely unable to see through the tricks and nuances of language they deploy to obscure the truth. Leigh believes the ICO is "institutionally incompetent", but blames the government for deliberately underfunding it. Investigators are "too few, too inexperienced and too badly paid to be able to compete with the obfuscation that goes on".

In the case of the BBC governors, the tribunal criticised Thomas's memorandum of understanding with the government, under which he gives it exclusive advance notice of unfavourable decisions and the chance to talk him out of them.

"That seems to us to be a practice likely to give rise . . . to concerns about the independence and impartiality of the commissioner," the tribunal noted.

In March, Thomas was reappointed by Tony Blair; he is entitled to stay in office until his retirement in 2009. In contrast, Alistair Graham, who, as chairman of the Committee on Standards in Public Life, challenged the government, was "replaced" by Blair the following month.

This article first appeared in the 05 November 2007 issue of the New Statesman, Iraq uncovered