FOI: Do we really have a right to know?

When the Freedom Of Information Act first passed from being an idea to something we could all use, it was heralded as a chance to hold government to account.

As we now know, the multiple number of exemptions available makes it relatively easy for public bodies reluctant to release information to, at the very least, place an agonising delay on requests for information.

The new coalition government arrived in Downing Street promising to make government more transparent and accountable. They picked up the baton from where Labour left off, dashing through new rules to make councils and government bodies reveal their spending.

As I’ve mentioned before, while the speed expected by government made a welcome change, it has also led to various problems – not least the latitude the rush has given councils to be vary greatly the amount of spending data they release, along with the format of the release.

What links FOI and the first example of the current government’s commitment to openness is the extent to which both rely on a degree of goodwill from the public body being asked to be open. Sure, there’s the Information Commissioner to turn to if FOI requests are dealt with unfairly, but public bodies also know this takes a long time.

And that’s why the attitude of a couple of public bodies lately should give us cause for concern.

First up, the very department which has been berating councils for not being open enough – the Department for Communities and Local Government. The BBC’s FOI expert Martin Rosenbaum revealed on his blog last week that FOI requests sent to councils regarding forthcoming spending  plans.

Given the Government is so keen on making councils reveal how much they have spent, you’d have thought the DCLG would be in favour of revealing where cuts were being felt. After all, it has been quick enough to point out councils where it disagrees with spending (as Manchester knows to its cost).

Yet Martin reports:

DCLG instructed councils not to provide this data, on the grounds that it is intended for future publication by the Office for National Statistics.

The BBC has seen a copy of an e-mail circulated to councils by DCLG’s Revenue Statistics Branch, which told councils to refuse the LGC’s information request in rather fierce terms.

The DCLG e-mail, sent on 27 April, stated: “Normally the stance DCLG takes is that any local authority data that has not been vetted thoroughly and has not been formally released to all members of the public should not be handed to any individual party under any circumstances without clearance from a national statistics authority (which we represent).”

The DCLG tried to pass this memo off as one-off, specific to the case, but Martin also reports that councils are already trying to use the DCLG’s statement above to fend off other FOI requests.

To me, the DCLG’s position goes against the principles of open government, the right to know and the notion that we should be able to hold the public sector to account from our armchairs (a vision conjured by local government secretary Eric Pickles).

A cynic might suggest the DCLG wanted the numbers delayed because it was obvious the story which would be revealed.

But it isn’t the only example of a government department wading in to stop the release of information. NHS North West, the strategic health authority for the North West, felt it was within its remit to tell hospitals in the region not to release the number of patients being treated for swine flue.

Yes, I know I’ve talked about this before, but the idea that an arm of the Department of Health – and that’s all NHS North West is really – felt it could could tell hospitals to sit on information which should have been freely available to either reassure people or alert people to a risk tells its own story.

The Manchester Evening News is one of a number of newspapers which had to use FOI as a result to get the numbers. No wonder the SHA wanted to keep the figures quiet – they were higher than expected. Should the SHA be criticised for swine flu deaths? Maybe not, but when they behave as suspiciously as they did, you can’t help but think someone at the SHA thought they were to blame.

These two incidents are, of course, isolated from each other. But when you consider the number of government departments and other departments which are achingly slow at releasing information, I can’t help but wonder whether the public sector does really acknowledge that we have a right to know, or whether they are just paying lip service when it suits, and games when it doesn’t?

4 comments

  1. Thought provoking post as always. And I’ve also said all this before, but…I agree that on the face of it, it is wrong for Govt depts or regional authorities to effectively order other authorities not to provide information – public bodies should make their own decisions. But there can be good reasons for them to provide advice to other public bodies – not every organisation has access to the same level of advice or expertise in dealing with requests. One man’s conspiracy is another man’s sensible and well managed government.
    And exemptions…I don’t agree that the number of exemptions makes it easy for authorities to apply them. Exemptions exist for a reason – some things do need to be withheld for the benefit of all. Sometimes they might be misused, but often they are correctly applied for good reason. And believe me, they’re not easy to argue if they’re done properly.
    And “achingly slow”? Are they? Or is it that expectations are unreasonable? I agree that authorities should respond within 20 working days, but there are often good reasons for requests not being answered more quickly, and even when they are answered late. Don’t forget that all public auths are juggling multiple services of which answering requests is one.
    My point, as ever, is that whilst FOI might not always satisfy requesters and commentators, and undoubtedly public authorities don’t always get it right, I think that the right to know is real. But then I would say that wouldn’t I?

  2. I’ve worked for two local authorities, and can see it from both sides here – that of DH and commenter FOIman. My experience lately is that exemptions can be wheeled out all too readily – often by ‘the usual suspects’ – but happily, these are in a minority. Since my research began around compromise agreements and gagging clauses on January 1st this year, from the 345 UK councils asked, I’ve been turned down 77 times. 44 of these were cost exemptions; the rest were a mixture of exempt personal data, or nothing heard after up to 70 working days. The vast majority of cost ‘refusers’ will not do £450 worth of work – which for me shows them up as ‘seizing on’ an excuse not to co-operate.

    On the subject of public bodies making their own decisions, I have to say I’m surprised by the LGA’s stance on a couple of its members (and I’ve mentioned the following before also – it’s catching!). Cheshire West (now facing litigation) and Brent have deliberately used what many regard as unlawful FOI / DP gagging clauses within compromise agreements. This looks very much like a removal of ‘the right to know’, but the LGA have deliberately planted their backside on the fence, stating “The LG Group does not seek to take or advocate any position on whether it is appropriate to include FOI/DP related ‘gagging’ clauses in compromise agreements.”

  3. PC your comment re the £450 limit being used as a reason not to do anything misses the point of s12. If the work needed will exceed the limit then there is no requirement for the authority to do anything.

    That said the authority should then go back to the applicant under s16 and see if the applicant can be more specific in what they require in order to bring the cost of the work needed below the cost limit.

    As a general comment I would also say that in my experience as a DP/FOI practitioner I have always railed against central govt diktats and peers have often felt the same.

    We as practitioners realise that we cannot rely on these diktats as a reason to withhold information and that we must make our own case but unfortunately senior officers see these as a convenient tool to support their reluctance to disclose.

    Regarding the response times I would echo what FOIMAN has said, requesters tend to forget that public authorities may have specific people doing DP/FOI (FOIMAN and myself being just 2) but the people we are badgering for the information needed to respond to requests actually have their real jobs to do as well and often these are as time critical as FOI is.

  4. Thanks for responding to part of my post, and for confirming what I’ve long known, that senior officers are “reluctant to disclose” – at least in your neck of the woods (and in Wirral and Cheshire West and Chester, can I add). Hopefully, “How dare they?” will be your ongoing battle cry, as you conitnue wading through molasses, seeking and gaining access for the public.

    Of course, technically you’re correct. From the 345 councils I approached, and of the now 50+ who gave a costs exemption, a minority DID come back and ask for more detail. But a majority DIDN’T. So there’s something wrong. Shall we sit back, relax, and blame ‘resource issues’ and diktats?

    I worked at the above two councils (not in information / data), and I know the internal pressures, one of which is senior officers who are generally of the opinion that the public get access to certain information ‘over our dead bodies’. Here’s a case in point that might be one to watch:

    http://tinyurl.com/3ld42pm

    Councils may technically “own” the data (not sure if this is correct?), but I believe they’re storing it on our behalf and that everything they do with that data is done in the public interest, not their own interest, and any claim to “business needs” or some other mythical primary function is a false pretext.

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