Freedom Fighters

by | Jul 30, 2014 | FOI, ICO

At least according to TweetDeck, Ian Dunt’s opinion piece about FOI on has struck a chord. For days, I have seen the headline being retweeted uncritically, usually by journalists: “How Whitehall neutered the FOI Act’. The article itself is stirring stuff. Take this:

Since the Act was passed it has become increasingly useless. Now, after four years of coalition government, the FoI Act is barely worth the paper it’s written on. One of the most powerful pieces of transparency legislation this country produced has been neutered.”

Dunt’s article doesn’t get close to substantiating the hype. Brace yourself – sometimes people ask for information under FOI, and they don’t receive it. Sometimes they have to fight to get the information. Sometimes, the information they want isn’t held. This isn’t neutering (Dunt’s headline even states that the neutering is done and dusted). This is how FOI works in every jurisdiction in the world that has an FOI Act.

Certainly, Dunt identifies some of the problems that FOI applicants encounter. He asked the DWP how much they had spent attempting to prevent disclosure of information about their Universal Credit Scheme. They didn’t provide the data, and he observes “even this small piece of the puzzle was considered confidential”. But it wasn’t. DWP didn’t claim that the information was exempt, they said “The department does not keep a record of the time its staff spend on particular Freedom of Information case work so the information you seek is not held”. There is an equally good example of the Howard League for Penal Reform being unable to find out when and how often they are mentioned in the Ministry of Justice – the quoted refusal makes clear that finding the answer would exceed the cost limits.

It’s frustrating when an organisation doesn’t record the information that you’ve asked for, or cannot search for information in the way you expect. Dunt offers no evidence that either department is not telling the truth, although he does imply that information is deliberately not being gathered centrally or that the civil service deliberately “cripple themselves with ineffective systems” that don’t allow for the right answers to be located.

There is no question that public sector IT systems are dire, but this isn’t anything to do with FOI, and in my experience, it’s often not deliberate. Senior managers everywhere think that everything can just be solved with a new IT system – this isn’t even just a public sector problem. Moreover, Dunt’s apparent solution (bring in Google) carries more Data Protection problems that I have time for here.

Dunt’s complaint about his DWP refusal overlooks the most important point: FOI worked. As he admits, the DWP’s refusal to disclose Universal Credit information was partially overturned by the Information Commissioner, and then wholly overturned by the Tribunal. True, DWP are seeking a further appeal, but we already know their appeal about Workfare schemes failed. The Universal Credit appeal will probably go the same way. This is not a neutered Act that isn’t worth the paper it is written on – on the substantial issue, it worked. Maybe it didn’t work fast, but that’s not Dunt’s complaint. His more trivial request was refused (my guess, legitimately), but the more important decision went in favour of disclosure.

Unless we are to let FOI derail the normal course of the public sector’s business, it has to have cost limits. Perhaps Dunt thinks that 24 hours of searching time per each request isn’t enough, but how high should we go? Should the applicant get 36 hours, 72 hours? Frankly, I don’t think how many times the Howard League for Penal Reform’s name is mentioned in the MOJ is worth more than £600 of public sector time, and if that’s really what they asked, the refusal serves them right for asking that sort of question. Rule number one for any FOI applicant should be to focus, focus, focus. Avoid a request that might involve an unlimited trawl of files and inboxes. FOI favours the stiletto strike, not the blunderbuss.

Any FOI Act will be imperfect tool to get at The Truth. It’s hard for FOI to be instant. Ironically, despite the fact that it is touted as a tool for journalists, the concept of FOI is a bit hopeless for anyone seeking information for the here and now. It favours the patient investigator. Government can cite exemptions or procedural hurdles, legitimately or otherwise, and the story may retreat into the long grass. But complaining about this is like complaining about the weather. Unless you think that all public sector information should be disclosed (paging Julian Assange), regardless of the circumstances and timing, you have to accept that FOI will include exemptions. One member of the House of Lords suggesting junking all of the exemptions in favour of a universal public interest test, and I like that idea. It would still result in refusals.

FOI does face a challenge. The Information Commissioner has proved unwilling to do anything strategic in his regulation of FOI, preferring to work only the case-by-case battle against the backlog. The attitude to FOI in the DWP, the Department for Education, and the Cabinet Office is clearly hostile, as it was when Labour ran the show. Dunt reminds us of Tony Blair’s repudiation of FOI, proving that this is not about politics, it’s about Government. If there is abuse of the process, it’s because Government knows the regulator is only willing to engage in skirmishes – the ICO won’t issue enforcement notices, won’t crack down on tactics. On this, the real problem, Dunt is silent.

The worst thing about Dunt’s article is that his message to his readers and the retweeting journalists is relentlessly negative. FOI is useless, he says, not worth the paper it’s written. It has been neutered. Probably not worth bothering with, then? If that’s what he thinks, fine. Dunt should stop making FOI requests, but his defeatism must not discourage others. My message to anyone with an interest in how government works is simple: ignore Ian Dunt. Work out a good request, make it, and if you get an unreasonable no, challenge it. Use the legislation. Make it work. FOI can only be ‘cancelled’ if we let it.