Why we have reached a moment of truth for freedom of information

Politicians are often exuberant about transparency and laud the notion of freedom of information, until they find themselves in government. For then transparency equates to accountability. It was Tony Blair’s administration that finally wrangled the lofty arguments for “right of access” into legislation, but Blair now retrospectively describes the Freedom of Information Act as “utterly undermining of sensible government,” arguing that the act is not used “to bestow knowledge on ‘the people.’ It’s used as a weapon.”

Yet, having spoken to concerned citizen activists, the Institute for Government, leading academics, The Campaign for Freedom of Information and the figure behind the initial white paper that led to New Labour’s groundbreaking legislation, the consensus is that freedom of information, under threat for some time, is now on the verge of crisis. The most up-to-date data supports this. According to the Institute for Government, of the resolvable requests received by government departments in the second quarter of this year, only 37 per cent have been delivered in full. We are in a crucial moment for a right that is ardently worth protecting.

It has been 20 years since David Clark’s (now Lord Clark of Windermere) brainchild, the Freedom of Information Act, achieved Royal Assent, and 15 years since it came into force. Looking back Clark tells me: “I wanted to increase democracy and therefore I felt freedom of information was critical. I was determined to try and write very radical Freedom of Information Act but also one which served the ordinary citizen.” The act provided citizens the first legal right of access to the information of government and public authorities. Freedom of information is often mistaken as an intrinsic part of the state or a deeply embedded right. Yet it is really only a legislative fledgling and therefore far more precarious and in need of protection than you might think.

The act is enforced by the non-departmental Information Commissioner’s Office (ICO). The commissioner has two main recourses, a decision notice to state whether a public authority has complied with the law and if not what should be done to put things right, and an enforcement notice if there is a systemic problem. However, the office has only ever issued an enforcement notice four times. Maurice Frankel, Director of the Campaign for Freedom of Information, explains to me how “the problem with the use of primarily decision notices is that the offending authority is not in any way disadvantaged by having disadvantaged the requester. We don’t understand why the Information Commissioner does not use [their] enforcement powers. We have said to them that we think [they] should.” Gavin Freeguard, Head of Data and Transparency at the Institute for Government, agrees: “certainly the ICO should be using the powers it has at the moment, and be stronger in departments. The ICO has a huge remit, and increasingly so, as data plays a bigger part in everyday life.”

Still, it is not just about inadequate enforcement; journalists, experts and campaigners have all noticed a downturn throughout the system. Ben Worthy, senior lecturer in politics at Birkbeck, specialises in government transparency and freedom of information. He tells me how “FoI laws are in constant change and often under threat because politicians find them bothersome or outright dislike them.” Current obligations “can be resisted in various ways, such as legal change, undermining from within, and starving of resources.”

Although it is hard to pin down a specific date when transparency began to wither, 2016 seems to represent what Freeguard calls “a turning point.” The spiral continued. In the third quarter of 2019, only 39 per cent of all resolvable FoI requests made to government departments were answered in full, 11 per cent were partially withheld and 44 per cent were withheld in full. This regression has been consistent across departments, with many slipping below 50 per cent after 2016.

A further problem relates to required publication of government datasets on things like spending and staffing structures. The government is releasing this information “later and less reliably than previously,” according to the IfG’s Whitehall Monitor. In 2019, most transparency data required of departments was published late.

“FoI is a long-term concern” Freeguard tells me. “I say this as a member of the Open Government Network Steering Committee in the UK as well: open government is a concern, and this matters for effectiveness as well as accountability.” John Slater, an FoI activist known for taking the Department for Work and Pensions (DWP) to task over Universal Credit data, says: “I’ve certainly seen response rates deteriorate since 2012.” He claims that in his experience “it is very unusual for the DWP to respond within 20 days.” Frankel agrees that delay as much as the actual withholding of information is a threat to Fol: “repeated delays sap everyone’s energy, and the requester loses enthusiasm and by the time the information is disclosed then it is too late to do anything with it.”

There is also a pervasive culture in government that seeks to diminish the importance of FoI. “The culture in recent years has been towards greater secrecy and away from transparency, and that is a more difficult challenge to solve,” says Freeguard. Frankel states that “if a minister at the top of a department doesn’t show an interest in complying with the legislation then that message very quickly filters down to everybody dealing with requests.” Worthy describes such signals as “collective irresponsibility.”

Yet a more concerted attack may be in the pipeline. The Campaign draws attention to recent government proposals to set up new regulators that are shielded from FoI. Another threat is the under-resourcing of the Information Commissioner’s Office, leaving it struggling to keep up with the demands made of it. Furthermore, there is the likelihood that the Official Secrets Act will soon be revised as part of a new espionage law that will only make things more opaque.

As the country became engulfed by the coronavirus pandemic, the ICO took the position that “public authorities require maximum flexibility currently to deploy their resources to best respond to a national crisis.” However, experts express near-universal concern that such flexibility should be proportionate and necessary. Analysis of decision notices makes clear that there has been a sharp drop in the Information Commissioner’s FoI enforcement action since the pandemic. In January and February 2020, the ICO ordered public authorities to take substantive action in 32 per cent of decision notices published during this period. However, only 5 per cent of decision notices published in April and May 2020 required substantive action. The worry is whether there will ever be a return to the—sub-par but preferable—pre-Covid state of affairs.

Frankel is sceptical: “it is obviously easier for them to get away with it in the context of a pandemic. Boris is not keen on FoI to start with.” Now the government “has cover for not dealing with requests properly.” While more diplomatic, Clark also sounds a warning: “We have got to be vigilant that when the pandemic ends, we go back to what we had before. That means we have to put on a lot of pressure politically.”

For Freeguard, the pandemic has highlighted concern about how government contracts are awarded. Indeed, the damning National Audit Office report into the government’s procurement processes over recent months has given Frankel’s campaign to extend the act to private contractors carrying out public service works a significant boost.

As we approach the 20th anniversary of the act’s Royal Assent, things are looking fairly bleak for freedom of information. But can we save it? “I think we need to. I’m not sure if that is optimistic or pessimistic,” is Freeguard’s take, but “we need to have a sensible, grown-up conversation about a lot of the wider issues. I think it is time to think about extending it as well as to fight for what we have currently got.” Clark concurs: “the time has come for a serious assessment of the act, but I do not wish the government or the civil service to make that assessment because in all likelihood they may seek to weaken it.” This is not a counsel of despair: “I think in a democracy, things do take time to become embedded in, but it is there now.” Worthy concludes with optimism that although we are indisputably in a difficult moment for transparency, “it is cyclical and later governments can re-boot enthusiasm.”