Maurice Frankel: We need to defend our right to freedom of information

It’s time for more secrecy, according to the Government. Only two years after bringing the Freedom of Information Act into force, ministers have decided to clamp down on the right to know. And journalists are one of their main targets.

The Act may be more a candle than a spotlight, but it has begun to illuminate areas that ministers prefer to keep dark. We have learnt that the Government considered weakening money laundering controls to encourage US-style super casinos in the UK. We’ve had fuller figures about British casualties in Iraq, details of landings at British airports by planes thought to be transporting US prisoners to countries where they may face torture, and the dates on which Tony Blair spoke to Rupert Murdoch and Richard Desmond.

The Government is currently appealing against the Information Commissioner’s order to reveal the costs and benefits of ID cards. It’s also challenging an order to disclose its discussions with the US government over the toxic ‘ghost ships’towed to the UK for dismantling.

Elsewhere, the Act has helped to reveal excessive spending on contracts, consultancies and expenses claims – and highlighted failings in the NHS.

Now the Government is striking back. It is no longer content to allow requests to be refused if the cost of searching for the information would exceed £450 or, in the case of government departments, £600.

Ministers want to allow the cost of consulting about the request and considering whether to release the information to also be counted. Simple requests would be unaffected, but if the issue was complex, contentious or just unfamiliar, the cost barrier would loom.

Once the limit was reached, a request could be refused out of hand, regardless of its merits. Perversely, a public interest case for disclosure would only increase the chances of a refusal – the hours needed to consider any public interest arguments would count against it.

An unwelcome rule change Draft regulations now available for consultation propose that the cost of the time spent considering disclosure would be capped at £300 out of the £450 total (or, for Whitehall, £400 out of £600). Although meant as a safeguard, it doesn’t go far. The time spent looking for the information, reading it and consulting others about it might easily make up the difference.

The rules could easily be manipulated by authorities. The hours needed to deal with an unwelcome request could be boosted by deliberately consulting lawyers or other specialists or ensuring that meetings involved not just the officials handling the issue but line managers and departmental heads too. Meetings wouldn’t actually have to take place – an estimate of their likely hours would do.

That’s not all. Authorities would also be able to aggregate requests made by the same individual or organisation and refuse them all if the total cost exceeded the £450 or £600 thresholds.

The draft regulations would allow aggregation if it was ‘reasonable in the circumstances”, a slight improvement on the original proposal. This test would depend in part on the level of disruption to the authority’s work. But there is no suggestion that authorities would have to consider the public interest in disclosure.

The applicant’s identity and past record could also be taken into account. The consultation paper says it would be more reasonable to aggregate requests from someone acting in a business or professional capacity – a category likely to include the press – than from an individual.

Aggregation would be more likely if the applicant had made large numbers of requests in the past, another stumbling block for many journalists. Requesters who had been ‘uncooperative or disruptive’could also be penalised.

One of the Act’s central premises, that disclosure should be ‘applicant blind’and depend on the nature of the information, not the applicant’s identity, would be fatally undermined.

What’s the cost?

The Government claims that these measures are merely an attempt to keep costs under control. But a review commissioned by it suggests that the annual cost of the Act, across the whole public sector, including the cost of the Information Commissioner and Tribunal, is no more than £35 million.

These restrictions would save less than £12 million a year, a tiny sum compared with the damage that would be inflicted. For comparison, the National Audit Office has just highlighted potential Whitehall savings of £660 million a year from more careful purchasing of office supplies.

The consultation document acknowledges that these changes would hit ‘journalists, MPs, campaign groups and researchers’more than private individuals. It’s no coincidence that these are the people who use FoI to promote scrutiny of public authorities. Nor is it any coincidence that the new rules make no exceptions for information that is in the public interest – these are the requests the government is targeting.

The proposals are open for consultation, until 8 March – although the Government has said it will introduce the new regulations on 19 March, a timetable which raises questions about the seriousness of the exercise.

Editors should nevertheless respond to it – and copy their responses to MPs. They should highlight the stories they have uncovered under the Act and let their readers know what is at stake if this important legislation is cut back.

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