Probing beneath the spin

By Director of the Campaign for Freedom of Information Maurice Frankel

After a four-year delay to allow public authorities to prepare, the
Freedom of Information Act finally comes into force on 1 January. It
should provide journalists with a valuable tool for looking behind the
gloss and spin at the actual documents in authorities’ files. Some
authorities accept they will have to adopt a more open stance and are
likely to respond positively to press requests for information. Others
will carry on as before, until forced to do otherwise.

FOI is not
for fast-breaking stories. You’re more likely to wait weeks than hours
for information. But if you’re dealing with an issue that will still be
news in a month’s time or gradually putting a big story together, the
Act should be just what you need.

Some 100,000 public authorities
are covered by the UK Freedom of Information Act. Government
departments and agencies, local councils, NHS bodies, the police, armed
forces, schools and universities, regulators, quangos, advisory bodies,
publicly owned companies, the BBC and Channel 4 (except for
journalistic and artistic materials) and even Parliament are all
covered, though the courts and security services are excluded. Private
contractors providing services on behalf of an authority can be brought
under the Act in their own right. Future candidates might include Group
4 in relation to its prison contracts, Capita’s running of the Criminal
Records Bureau and private finance initiative contractors.

While
Welsh and Northern Ireland authorities are covered by the UK
legislation, authorities in Scotland are subject to a separate,
slightly tougher FOI Act, which comes into force at the same time.

The
acts apply to information of any age, in effect abolishing the ’30-year
rule’. Your chances of getting old Government files depend on whether
the contents are exempt at the time of your request, not on how long
they’ve been sitting in the National Archives.

There’s no special
trick to making a request. Apply in writing or by fax or e-mail to the
authority concerned describing the information you want. It’s a good
idea to say you’re applying under the Act, but strictly speaking you
don’t need to. Any written request is automatically valid. You can ask
to be sent photocopies of originals, have material e-mailed or ask to
inspect records in person- the authority is required to comply with
your preference if practicable.

Send your request to the
authority’s FOI officer -the larger authorities will have one with
contact details on their website. You can also send it to the press
officer or official handling the issue. As long as your name and
address are on the letter, that’s the end of the formalities.

Describe
the information you want as specifically as possible. So long as the
cost of locating and extracting the information held by central
Government doesn’t exceed £600, the equivalent of three and a half
day’s work, access will be free. You will only pay for photocopying,
computer printouts and postage. The limit for other authorities is £450
– two and a half days’ work. If these costs are exceeded, the authority
can refuse to provide the information or ask for the full amount. So
“give me everything you have on the issue” is unlikely to work unless
you’re dealing with a very small file. If you have trouble working out
what kind of information the authority is likely to hold, ask it.

The
authority should reply “promptly”, but has up to 20 working days to
provide the information or justify a refusal. This can be extended for
an unspecified “reasonable” period where decisions are being made under
the UK Act’s public interest test (this delay is not available under
the Scottish Act), but you should be told how long the authority
expects to take. Complain if the delay seems excessive. An extra 10
working days are allowed for closed files in the National Archives,
with longer extensions for information held overseas, by armed forces
on active duty or schools during holidays.

Only a few exemptions
provide unequivocal grounds for refusing information. There’s no right
to copies of court documents, information about the security services,
information subject to Parliamentary privilege or whose disclosure is
prohibited by other laws.

Personal data about individuals can be
withheld where disclosure would breach the Data Protection Act, but you
should challenge any attempt to cite privacy as a reason for concealing
the identity of officials acting in an official capacity.

Other
exemptions require the authority to show that disclosure would
prejudice a specific interest (or in Scotland cause “substantial
prejudice”) and/or are subject to a public interest test. Information
whose disclosure would be likely to prejudice defence, international
relations, law enforcement, regulatory functions, commercial interests,
the economy, the frankness of advice, the “effective conduct of public
affairs” is exempt -but in each case may have to be disclosed if the
public interest in disclosure is greater than, or equal to, the public
interest in confidentiality.

The public interest test also
applies to exemptions for trade secrets or an authority’s legal advice.
Don’t expect any insight into current litigation, but legal advice on
the implications of a new judgment or EU directive may be a different
matter.

Information obtained during inquiries by the police or
prosecuting authorities is covered by a wide exemption, but subject to
the public interest test. If disclosure would cause no harm, or would
clearly be beneficial, the decision may go your way. Information
relating to the formulation of Government policy is also exempt, but
the public interest test should require the disclosure of factual
information.

Public interest arguments might include the need for
properly informed debate, exposing wrongdoing, protecting the public
from danger, accounting for public funds, demonstrating that standards
are being observed, that authorities are properly discharging their
responsibilities, ensuring that people are dealt with fairly and the
public is not misled.

If information is withheld, the authority
should tell you which exemption it has relied on, why it thinks the
public interest favours confidentiality and how to challenge the
decision. The first step should be to complain under the authority’s
own complaints procedure. Strictly speaking, it’s the authority’s job
to show why information should not be disclosed, not yours to prove
that it can. But if you feel the authority may have an exaggerated view
of the likely harm from disclosure, or has failed to recognise the
public interest in openness, you should point that out. If you’re still
unhappy after the authority’s review, you can complain to the UK or
Scottish information commissioners, who have the power to compel
disclosure.

But it’s at this point that ministers could pull the
plug. Both FOI laws and EIRs give ministers the power of veto if the
information commissioners order them to disclose information on public
interest grounds. Given the central role of the public interest test,
that is a formidable power, although it could be judicially reviewed.
The UK Commissioner has already said he will make a special report to
Parliament every time the veto is used. Whether it is actually used in
practice will tell us a great deal about how seriously ministers take
their FOI commitment.

Maurice Frankel is director of the
Campaign for Freedom of Information. For information about FOI training
courses see the campaign’s website, www.cfoi.org.uk

ENVIRO-WATCH OPENS UP

Requests
for information about the environment will be dealt with under separate
Environmental Information Regulations, which also come into force on 1
January. These are surprisingly wide ranging.

As well as
information about pollution, energy, noise and radiation, they include
genetically modified organisms, air and waterborne disease agents, food
contamination, planning, road building and transport schemes.

The
20 working day time limit can be extended for complex requests to a
maximum of 40 working days. Utilities and public authority contractors
with environmental responsibilities are covered. The exemptions are
fewer, all are subject to a public interest test and there is no upper
cost limit for requests. There are separate regulations for the UK and
Scotland.

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