Last month, the property journalist Peter Apps wanted to know how many buildings in the UK were still covered by the flammable insulation that had caused fire to spread quickly in the Grenfell disaster. He asked the Ministry of Housing, Communities and Local Government (MHCLG) how many buildings had applied to have unsafe cladding replaced. Under the Freedom of Information Act, public bodies are legally obliged to provide this kind of information to anyone who asks.
But Apps’ request was rejected by MHCLG, which said it was unable to disclose the information because it didn’t want to disturb the “private thinking space” of government officials.
When Apps tweeted about the rejection, other journalists began to report similar experiences. Political editor for the Times, Francis Elliott, replied that he was “seeing a few of these brazenly outrageous knock backs”, while the Guardian’s Rob Davies said he was still waiting for a response for an FOI he submitted more than 70 working days ago (departments are legally obliged to answer within 20 days).
The statistics back these experiences up. Between April and June 2020 (the most recent period for which there is available data), government departments provided their lowest ever rate “full” responses to freedom of information (FOI) requests. Almost half (42 per cent) of all requests were “fully withheld”.
For 20 years, researchers, campaigners, lawyers and journalists have used FOI to uncover a long list of issues including MPs’ expenses, prolonged emergency response times and the abuse of diplomatic immunity. But – under a government that promised to “improve the use of data, data science and evidence in the process of government” – the right of access to information now appears to be under threat.
Tony Blair, whose government introduced the Freedom of Information Act in 2000, was also the first to decry it. In his memoir, Blair calls himself a “naive, foolish, irresponsible nincompoop” for giving journalists and the public a means to extract information from government. Many other politicians have agreed. In 2007, the Commons passed a controversial Amendment that would have exempted MPs’ correspondence from the Act, and more recently, Michael Gove and Dominic Cummings have flouted the legislation by conducting correspondence over personal email.
The Covid-19 pandemic gave some government departments an excuse to delay responding to FOI requests, while others suspended the function altogether. The Information Commissioner’s Office (ICO) – the regulator that enforces the Act – said it would be lenient with public bodies that failed to comply during the crisis.
But there was already a strong downward trend in the proportion of FOI requests being granted in full. In the third quarter in 2010, 25 per cent of resolvable requests were rejected in full; by 2019, that figure had risen to 44 per cent. In 2018, the Institute for Government noted that the rejection of FOIs was “the new normal” in many departments.
The current government has repeatedly demonstrated its distaste for transparency; SAGE meetings are held behind closed doors and lucrative public contracts go unpublished. But this trend has been accelerating since at least 2010 – why? Is there, as Francis Elliott asked, a “coordinated effort to undermine FOI”?
In many cases, it may not be so much a conspiracy as a consequence of the funding cuts that have affected almost every public body since 2010. In the early days of FOI, trained specialists were employed to answer requests. “As time passed, as staff moved on or retired, they were replaced by people who are not as well trained; sometimes, you wonder whether they’ve had any substantive training at all,” says director of the Campaign for Freedom of Information (CFOI) Maurice Frankel. It’s now commonplace, says Frankel, to see FOI responses which “barely make sense”.
At the same time, journalists have become more fluent in pinpointing which data the government has or has not disclosed. “The increase in refusals may partly be a reflection of the increase in penetrating requests,” says Frankel.
A government spokesperson told the New Statesman this was the case: “With increasing transparency, we receive increasingly more complex requests under Freedom of Information. We must balance the public need to make information available with our duty to protect sensitive information and ensure national security.”
But others say these factors are compounded by a culture of secrecy. “The more signals you get from the top that it doesn’t matter, the less you have to co-operate,” says Ben Worthy, senior lecturer in Politics at Birkbeck University who specialises in FOI. The last prime minister who publicly championed transparency was David Cameron, he points out.
Frankel, too, says he has seen an “active reluctance to act in the spirit of the Act from public authorities” in recent years. “They’re not that dismayed if somebody at the first level of response has refused on incoherent or not very plausible grounds.”
Worthy calls it “collective irresponsibility […] the more people who don’t comply with FOI, the more everyone will get away with it”.
Time is also a factor. A public body has 20 days to respond to an FOI, and a further 20 working days to respond to an appeal if they reject it. The next step is for the person seeking information to go to the ICO, and if necessary to court. By the time the information is released, getting it may have taken years, the subject may no longer be newsworthy. “There’s no repercussion for an authority which drags his feet,” says Frankel.
Jonathan Baines, data protection adviser at law firm Mishcon de Reya, says he can name “a couple of government departments where I think FoI is treated with contempt”, including the Ministry of Justice (MoJ), Home Office and the Cabinet Office. The MoJ is indeed one of the worst offenders, having responded in full to only 40 per cent of requests in the last quarter of 2019.
At the same time, there are “very good FOI officers who are doing their damnedest to comply with the law and be transparent,” says Baines. Gareth Rees, a senior developer at MySociety – which helps organise and publish FOI requests from the public – agrees that most FOI officers, especially in local government, “are really positive about FOI”, which they see, he says, “from a citizen’s point of view”.
Baines says he is more concerned at the “inexplicable” lack of enforcement on the part of the regulator. Until a few years ago, the ICO would publish a list of bodies it was monitoring closely for lack of compliance, but it stopped doing so. Frankel points out that the most powerful sanction the ICO wields, court action, has been used only a handful of times.
At a time when data rights are crucial to the UK’s handling of the coronavirus crisis, the ICO has been castigated for refusing to take any new cases forward. In August, a group of MPs challenged the watchdog over its failure to appropriately safeguard the Test and Trace scheme. The same month, it emerged (thanks to an FOI request) that Elizabeth Denham, the Information Commissioner, had been living in Canada while working as one of the UK’s most senior civil servants.
Without effective enforcement, there is little reason for a government department to release information that might be damaging to it or its ministers. Peter Apps says the unexplained notion of “security” has “used to kick back a huge number of requests” relating to the safety of buildings that may share the same risks as the Grenfell Tower. This refusal to share information that could be relevant to residents’ safety, he says, “appears to have been an edict from MHCLG”.
Without help from the regulator there is little that journalists or anyone else can do to prevent the erosion of the right to information in the UK. Only those with the resources to spend time in court will be able to guarantee their rights under the Act.
Meanwhile, the FOI Act itself remains under fire, and government is only becoming less transparent. The Act survived another challenge when it was reviewed in 2016 (a commission decided to not make any changes to the legislation), but this will not be the last. And government transparency, for all the spin about open data, is in many cases becoming less available: the Whitehall Monitor 2020 report from the Institute for Government found that data such as departmental organograms and spending were increasingly published late, or not at all.
This government has made no secret of its plans to remake institutions from the educational establishment to civil service, the BBC and the judiciary. The right to information is being dissolved more quietly, but – at a time when we are learning the lethal power of misinformation – it is something we should agressively defend.
When approached about this article, an ICO spokesperson said: “As part of our ‘Openness by design’ strategy, we aim to ensure that access to information rights are upheld in a consistent and timely manner and operate effectively in a digital age. One of our strategic priorities to achieve improvements in compliance is to increase FOIA and EIR compliance through targeting non-compliance and taking enforcement action consistent with the approaches set out in our Regulatory Action Policy.”
A government spokesperson said: “The Government is committed to its transparency agenda, routinely discloses information beyond its obligations under the FOI Act, and is releasing more proactive publications than before. The coronavirus pandemic has also had an impact on how quickly public authorities are able to respond to FOI requests, and the ICO has acknowledged this in recently published guidance.”
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