Falconer must address 'scoop paradox' of FoI Act

Lord Falconer’s bemusement at last Friday’s Law for Journalists Conference was something to behold.

He’d just given his upbeat verdict on the forthcoming Freedom of Information Act, now just weeks from coming into force.

And then the man from The Times asked him an innocuous sounding question.

Was there, wondered legal manager Alastair Brett, any degree of confidentiality involved in an FoI request by a newspaper? If a journalist had worked for weeks on a story, and had then filed a question using the legislation, would the answer be given only to that journalist? Or would it be broadcast on a website or by press release, allowing rival publications to get a piece of the scoop without having done any of the legwork? Falconer looked on in amazement. Let’s get this straight, he said. You want the facts to be freely available-but only to you? You want freedom of information to be restricted to accommodate your commercial interests? A chill wind blew through the room. Some of those journalists who had daydreamed of great FoI scoops could almost see them turning to dust before their very eyes.

The temperature dropped further as The Guardian ‘s David Hencke pointed out that the results of a request he’d made under the old open government code had actually been leaked, before he had been given the answers, to an opposition paper.

Falconer admitted he had not given the ‘scoop factor’ much thought. It’s time that he did.

Because there is a very real danger that the act could become a ‘spoiler’s charter’, allowing government departments to take the heat out of the most embarrassing stories by judiciously drawing other media’s attention to them.

For Sunday newspapers, or weeklies, that could seriously hit their effectiveness.

But journalists too have to ensure that they don’t let the FoI paradox prevent them from using it as an effective tool. As Falconer pointed out, if this is all about making secret information available to the public, you can hardly cry foul if that’s exactly what happens.

In the end it may all come down to trust between journalists and the agencies covered by the act -one of the key points of the Lord Chancellor’s earlier speech.

If that trust breaks down, we could yet end up seeing this most valuable piece of legislation losing its potency.

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