UK FOIA Supporters Criticize Creation of Commission

20 July 2015

The British government has announced plans for a commission to study the Freedom of Information Act and transferred administrative responsibility for FOIA to Cabinet Office.

Both moves were widely seen as threatening to freedom of information, following through on previously stated objections from Conservative government leaders.

A “crack down” on FOI is clearly being planned, according to a statement by the Campaign for Freedom of Information.

“They don’t like the fact that the Act requires the case for confidentiality to be weighed against the public interest in disclosure,” said Maurice Frankel, the CFOI’s Director.

Similar reactions erupted from other FOI supporters, including those in the open data community who objected that the government’s announcement used the disclosure of more datasets as an argument that the UK is “committed to being the most transparent government in the world.”

“We were frustrated to learn that the UK Government has used its ranking in our Open Data Barometer in an effort to justify a move that could water down the Freedom of Information Act,” said the chief excutive officer of the World Wide Web Foundation, Anne Jellema. A Foundation blog post cited four objections.

An online petition campaign has begun with 70,000 signatures July 22.

Commission Goals Set

The commission is charged with reviewing “whether there is an appropriate public interest balance between transparency, accountability and the need for sensitive information to have robust protection, and whether the operation of the Act adequately recognises the need for a ‘safe space’ for policy development and implementation and frank advice,” according to the announcement by Cabinet Office parliamentary secretary Lord Bridges.

The commission “may also consider the balance between the need to maintain public access to information, and the burden of the Act on public authorities, and whether change is needed to moderate that while maintaining public access to information.”

The five-person commission, composed of current or former government officials, will report to Cabinet Office minister Matt Hancock. It will be chaired by Lord Burns and other members will be former MP Jack Straw, Lord Howard of Lympne, Lord Carlile of Berriew and Dame Patricia Hodgson. Its findings are expected to be published in November.

Its findings are due by the end of November.

The Campaign stressed that the Justice Select Committee three years ago conducted post legislative scrutiny of the Act, giving it a favorable review.” Recent court decisions :have protected genuinely frank discussions,” the Campaign said, pointing to this article on its website. A recent Supreme Court ruling weakened the government’s veto over requests.

FOIA Responsibilities Shifted

In another development, the government shifted FOIA policy responsibility from the Ministry of Justice to the Cabinet Office effective July 17, 2015.

Blogger David Higgerson said the Cabinet Office is “consistently the worst performing government department when it comes to FOI,” and pointed out, “It is regularly censured by the Information Commissioner.”

Reactions

The UK Information Commissioner issued an initial response saying:

The Act is not without its critics, but in providing a largely free and universal right of access to information, subject to legitimate exceptions, we believe the freedom of information regime is fit for purpose.

Ben Worthy, an academic who blogs on Open Data Study, questioned the premises of the assigned tasks, noting ““the effect of FOI on policy discussions generates lots of heat but very little evidence.” He recalls, “In terms of harder evidence, the Justice Committee ‘was not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act’ and also felt the protections for policy were sufficient and was ‘cautious about restricting the rights conferred in the Act in the absence of more substantial evidence’.” In second later post, he concludes, “Our own studies found a few examples but no systematic behavior changes around advice or space-and also many officials more concerned about the dangers of not having a record if a judge came knocking.”

Worthy also addresses the issue of how much FOIA costs, observing “The interesting point about the remit is that it tilts all discussion naturally towards the two issues of damage and costs, rather than any more equal cost-benefit analysis.” He reviews evidence on the cost of FOIA cost in the second post, stating, “Measuring the cost of FOI in any reliable way is almost impossible.”

Blogger David Higgerson said: “At the heart of this commission is the concern that civil servants don’t feel they can speak freely for fear of what they say, or more aptly write, ending up becoming public via the Freedom of Information Act. Call me a cynic if you wish, but I spy a smokescreen aimed at making it harder for those in power to be held accountable by those who ultimately pay their wages – you and I.”

FOIAMAN blogger Paul Gibbons wrote, “It seems clear that the government is determined to weaken FOI.” He noted, “The Commission is due to report in November which does not allow for much consultation in the meantime.”

Member of Parliament Douglas Carswell wrote in The Daily Mail about what stories have emerged through FOIA requests and the members of the commission. He wrote:

It would be unfair to suggest that all those on the panel are the type of people who have built their careers by toadying up to the Whitehall establishment. They are, however, hardly likely to be radical advocates for extending the public’s right to know what officials are up to.

Putting this lot in charge of Freedom of Information would be like putting supermarket bosses in charge of competition policy.

The Guardian published a mocking cartoon by Martin Rowson.

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