FOIA and loathing: why government departments are less free with their information

They say sunlight is the best disinfectant, but clouds have been gathering over Whitehall for the last few years. Government departments are granting a lower proportion of freedom of information (FoI) requests in full now compared to 2010, let alone 2005, when the Freedom of Information Act (FOIA) came into operation.

2020 marks not only the 15th anniversary of the Act—which allows citizens to request information from the government and expect a response within 20 working days—coming into effect, but the 20th anniversary of it becoming law. It was designed, in the words of then home secretary Jack Straw, to “transform the culture of government from one of secrecy to one of openness” since “unnecessary secrecy in government leads to arrogance in governance and defective decision-making.” Through granting citizens the right to know, freedom of information should also promote better government.

But the latest figures point more in the direction of unnecessary secrecy than a culture of openness. In the third quarter of 2010, 15 government departments granted more than half the requests they received in full. In the third quarter of 2019, only five did. In 2010, government departments withheld information in part or in full in response to just under 40 per cent of requests; in 2019, that figure is closer to 60 per cent. What is going on?

In some circumstances there may be good reasons for departments not to grant requests. They can refuse to release information on cost grounds (if it would cost more than £600 to answer), if the requests are “vexatious,” or using any of the 23 exemptions available under the Act.

Some departments withhold more than others. The Foreign Office, Ministry of Justice (MoJ) and Cabinet Office have refused more than half of their requests in every quarter since 2010. The three departments created in July 2016—the Department for Business, Energy and Industrial Strategy (BEIS), Department for International Trade (DIT) and now-defunct Department for Exiting the European Union (DExEU) have all refused more than half of the requests they have received in every quarter of their existence.

This will be partly due to the nature of information held by these departments: the “international relations” exemption is sometimes deployed by the Foreign Office, DIT and DExEU; the “court records” exemption by MoJ; the “government policy” exemption (which provides for a “safe space” for policy making) by the Cabinet Office and DExEU; and “commercial interests” by the Cabinet Office and BEIS. Her Majesty’s Revenue and Customs is prohibited by law from disclosing a lot of the information it is asked for. Across all departments, “personal information” is the most commonly used exemption, accounting for just under half of all exemptions used by departments in the third quarter of 2019. Next up is the “government policy” exemption and where the information is due to be published in future.

Why are departments releasing proportionally less information? The number of requests has increased, from around 7,500 in the third quarter of 2010 to around 9,600 in the third quarter of 2019, and most departments have not increased the size of their FoI teams to cope. With the government publishing more information and there being more material in the public domain from previous FoIs, it may be that requests are now more complex or after more sensitive information. That said, and whatever the Cabinet Office might say, proactively publishing data that the government has chosen to release and reactively responding to specific requests from the public fulfil very different functions: doing more of the former does not justify less of the latter.

Of course, FoIs can be uncomfortable for politicians. Tony Blair, whose government introduced the legislation, later reflected that it was like handing someone who wanted to hit you over the head with a stick a mallet instead, and branded himself a “naïve, foolish, irresponsible nincompoop” for introducing it. David Cameron, a prime minister strongly associated with other initiatives to open up government, decried FoI as “clutteration” and a “buggeration factor.” Accountability should sometimes be a useful friction. And however politicians feel about FoI, it is no excuse for being less open.

Openness campaigners have complained that FoI is broken, having to take departments to tribunals and complaining that the regulator—the Information Commissioner’s Office—is not taking sufficiently strong action to enforce the FOIA. And all this is happening against the backdrop of a Brexit process criticised for a lack of transparency, with parliamentarians resorting to archaic and arcane procedures to drag information out of the government, and departments failing to fulfil promises to publish other data on time.

For too long, the government has seen transparency as an obligation, not an opportunity—in the case of FoI, an opportunity to better understand what information the public are interested in, to better understand the information it holds, and to allow its own decisions to be interrogated. This year, the anniversary of the Freedom of Information Act, provides the chance of a new dawn.

Now listen to a musical representation of the trends discussed in this piece