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19 November 2015updated 09 Sep 2021 2:22pm

There is no evidence that curbing the Freedom of Information Act is justified

Why we need to protect FOI.

By Bella Sankey

In 2011, David Cameron wrote in The Telegraph:  “In the years to come, people will look back at the days when government kept all its data – your data – in vaults and think how strange it was that the taxpayers – the people who actually own all this – were locked out. […] Use this information, exploit it, hold your public services to account.”

The Prime Minister’s words hit the nail on the head: data held by authorities is our data. We have a right to know how our institutions are run and our money spent – and if they’re failing to meet the standards we expect and deserve.

Alongside our threatened Human Rights Act, one of the most powerful tools for this is the Freedom of Information Act (FOIA). Since 2005, it’s proven an unparalleled mechanism for dragging stories of monumental public interest kicking and screaming into the light.

Without it, we’d still be in the dark about police use of tasers on childrenthe incineration of foetuses as clinical wasteCyril Smith’s attempts to threaten police investigating claims he had molested young boys and hundreds of care home residents dying of thirst. We wouldn’t have had the seismic MPs’ expenses scandal – not to mention countless local and regional stories of vital importance in holding councils to account.

All revelations of unquestionable public interest, which led to – or should lead to – positive changes in the way our bodies are run. All stories it would have suited the powerful to keep under lock and key.

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Given his barnstorming defence of the value of transparency and accountability, you’d think Mr Cameron would be a fan – but, an election on, it seems his strength of feeling has dulled.

In July, the government announced a new Commission on Freedom of Information – required, they claim, to scrutinise the balance between transparency, accountability and the need for “robust protection” of sensitive information; consider the need for a “safe space” and “frank advice”; and look at the “burden of the Act” on authorities. Launching the review, Cabinet Office 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”.

Perhaps this government has an unnervingly short collective memory. Or perhaps it just wants us to forget that the FOIA was subject to a thorough scrutiny process by the cross-party parliamentary Justice Select Committee just three years ago. That Committee considered expert evidence from senior politicians, academics, civil servants, journalists and organisations including Liberty.

Its conclusion? The FOIA had been a success and its scope should not be diminished. It had “enhanced the UK’s democratic system”, making our public bodies “more open, accountable and transparent”. The comprehensive report remains available online.

Regarding the “safe space”, Committee Chairman Sir Alan Beith was clear: “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 the “burden”, saying: “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”. The right to access information under the FOIA is already subject to restrictions, including an exemption if the cost of complying would exceed an ‘appropriate limit’.

The Justice Committee also heard evidence about savings made to the public purse following FOI disclosures about systemic inefficiencies and serious mismanagement of public funds. And let’s put the cost “burden” in context. government spent £150.7m on press, communications and marketing in 2014/5. Almost five times more than it spent on maintaining a healthy system of access to information under the Act. And we know of this staggering disparity thanks to… an FOI request.

In short, the Committee addressed everything this new review has ostensibly been set up to consider. Why then – at a time of massive cuts to Whitehall budgets – the sudden pressing need for another one?

When it comes to the Committee line-up, the deck has been brazenly stacked. Among its five members are Jack Straw, already all over the public record saying the FOIA should be entirely rewritten. When asked by the Justice Committee whether he would have “killed” the legislation “at birth”, he responded: “I do not know the answer”.

Alongside him are Lord Howard (who felt the full force of the FOIA during the expenses scandal) and Lib Dem Lord Carlile (whose views on the supreme importance of government secrecy are well-known). Nobody on the Commission has a record of having previously used or benefitted from the Act.

Announcing the Commission, Lord Bridges declared the government’s commitment to being the “most transparent” in the world, pointing to data.gov.uk as proof. Of course, authorities can promote greater transparency by proactively publishing information. But, as Information Commissioner Christopher Graham puts it: “Sometimes the full story is in the background papers and minutes of meetings rather than just raw data.”

Politicians, senior civil servants and advisers instinctively hoard power because they think that’s the way to get things done – once again, the words of David Cameron. Without FOI requests, decisions on what to publish will lie with those in power – those with a vested interest in keeping politically embarrassing, contentious or damning information out of public hands.

Fine words extolling the virtues of transparency are one thing. But, just as common law can’t provide the rights protections our equally beleaguered Human Rights Act can, fine words can’t guarantee our right to access information of profound public interest held by our authorities – the FOIA can.

This is a clear attempt to crack down on Freedom of Information – and it’s darkly hypocritical from such a surveillance-obsessed government, taking “no privacy for you, no scrutiny for us” to a whole new level. Perhaps it should come as no surprise, given the very public bruising many senior politicians have suffered at its hands in recent years. But to seek so shamelessly to curtail the FOIA in the face of such recent evidence that it is working well betrays a staggering disdain for accountability and transparency – the pillars that shore up good democracy.

The FOIA’s impact in just a decade has been inestimable. At Liberty, we’ve used information obtained under it to challenge human rights breaches, end discriminatory policy and advocate for the most vulnerable. It’s been critical to some of our most successful legal cases and policy reforms, including curtailing discriminatory stop and search and the degrading treatment of detained immigrants, and exposing dangerous deportation practices. It has helped us force disclosure of statistics about incidents of sexual assault in the armed forces and controversial powers to detain people without suspicion at ports and borders.

We have very few pieces of legislation which let ordinary people hold our public bodies to account. The Freedom of Information Act is one. The Human Rights Act is another. The government is intent on curbing both. If we don’t speak up in their defence, people will look back in years to come – to echo the Prime Minister – and question why we let them get away with such a barefaced attempt to hand power back to the few.

Bella Sankey is policy director for Liberty

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