LOCAL authorities and other public bodies throughout the country are preparing for a new era of open government in which the public will be able to exercise a right of access to a vast range of information.
Fifteen years after the Thatcher Government emphatically rejected the opportunity to introduce freedom of information legislation, Britain has caught up with the culture of transparency that has for some time characterised the United States, Australia, France and Canada.
The Freedom of Information Act will become law on January 1 next year, and advocates of the new law proclaim its importance in consolidating Labour’s “bond” with the citizenry. At last, the argument runs, we will have legislation that is integral to accountable democratic government. It may have taken some time, and other Western democracies may have had similar legislation for the past 20 years, but better late than never. Labour has fulfilled a manifesto pledge, and Whitehall’s culture of secrecy will vanish.
The only trouble with this view is that many of those best-placed to profit from the Act — the country’s lawyers — have doubts about its tangible benefits to the ordinary person. And some go so far as to say that, far from creating greater transparency, it will add to what Richard Crossman, a Cabinet minister in Harold Wilson’s Government, once described as “the British disease” — an obsession with secrecy that he said had reached “ epidemic proportions”.
On paper, the Act looks sound. It gives the public a right of access to information held by public authorities, requiring them to respond in writing to specific requests stating whether they hold the information requested and, if so, to communicate it to the applicant.
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Louise Townsend, a solicitor with Masons and an expert on the new law, says that “information” can be recorded in any form, style, medium or location. And, she says: “Anyone, anywhere can ask for information — and they don’t have to give a reason. The aim is to create accountability for public decisions.”
The public authorities that fall under the Act’s spotlight include national and local government, health authorities, school governing bodies and the police and Armed Forces. The security services and GCHQ are exempt, and institutions such as the Bank of England and Channel 4 will not have to provide certain categories of information. The BBC is another example: it does not have to provide information held for the purposes of journalism, art or literature.
There is, though, a catch. As Keith Mathieson, a media lawyer with Reynolds Porter Chamberlain, says, the Act is subject to numerous qualifications. “In particular, there are no fewer than 24 categories of information that are exempted from the duty to disclose. They range from security and defence matters to international relations, from the economy and law enforcement to government policy. When a person comes up against these, the value of the new law is debatable.”
Mathieson explains that some of the exempt categories of information are classed as “absolute” exemptions. “If an absolute exemption applies, a public authority does not even have to tell you whether it holds the information requested, let alone provide it.”
Absolute exemptions include court records, information provided in confidence, information supplied by bodies dealing with security matters and, perhaps rather worryingly, information held by either House of Parliament whose disclosure “would prejudice the effective conduct of public affairs”. In effect, critics argue that this gives ministers a fallback position that preserves the endemic secrecy in British governmental affairs.
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Even where an exemption is not absolute, there may be a reason for not disclosing information requested. The Ministry of Defence can withhold information sought by a journalist if it considers that disclosure could prejudice the effectiveness of the Armed Forces. It must believe that the public interest in withholding it outweighs the public interest in disclosure. Cynics will swiftly point out that the ministry is unlikely ever to come down on the side of disclosure.
On top of what seems to be a rather more fettered right of access than its proponents would allow, the Act has another serious drawback, so far as the man in the street is concerned. Searching for information — say, from a local education authority on why a child was refused entry to a particular school — is not free. The exact cost of searches has yet to be finalised but Chris Hutchings, a partner with the Soho media firm M-Law, says: “There are widespread concerns that the potential cost of searching — up to £575 a time — will effectively prevent a large part of the public from seeking information. This could result in a situation where the Freedom of Information Act primarily benefits only big businesses and wealthy individuals.”
Anthony Burton, senior partner of the West End media firm Simons Muirhead & Burton, suspects that the legislation will be “a useful tool for journalists, lobbying groups and business competitors” but doubts its efficacy for members of the public. “If I wanted information about a local education authority about decisions in relation to children, arguably the new law creates an obstacle course where it could have made things simpler.” And, as for what the Government is describing as “a bold and determined response to generations of secrecy”, Burton has some cautionary words: “Officials will simply avoid putting things in writing. The fear is that far from changing things the culture of secrecy will become yet more entrenched.”
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