22 October 2015

The Cabinet Office has recently established a Commission on Freedom of Information (FoI) to review aspects of the Freedom of Information Act. Gavin Freeguard outlines the Institute for Government’s view.

Transparency and openness are important for effective government, which the Freedom of Information Act (FOIA) plays a part in supporting. The Government recently established an independent commission to review the Act. The Commission’s call for evidence expresses particular concern about changes in the legal interpretation of the ministerial veto – which allows the Cabinet to block the release of information – and its effect on a ‘safe space’ for policy development. But the Government’s concern over the ministerial veto – a device used only seven times since 2005 – should not be allowed to bring the shutters down completely around a ‘safe space’ for policy making and implementation. The background In 1999, then-Home Secretary Jack Straw told the House of Commons, ‘Unnecessary secrecy in Government and our public services has long been held to undermine good governance and public administration’. It was hoped the resulting Freedom of Information Act (2000) would ‘transform the culture of government from one of secrecy to one of openness’; in doing so, ‘it should raise public confidence in the processes of government, and enhance the quality of decision making by the Government’. The white paper that preceded the Act – Your Right to Know – began by saying that ‘Unnecessary secrecy in government leads to arrogance in governance and defective decision-making’. A more sceptical Straw is now one of the members of the Commission on FoI, established by the Cabinet Office to review the operation of the Act. The Commission – now taking evidence and planning to publish a final report in December – has prompted letters of concern from the Open Government Network and 140 press and civil society groups. One of the main issues the Commission will examine as part of its review is the protection of government decision-making, and whether ‘the Act adequately recognises the need for a “safe space” for policy development and implementation and frank advice’. Safe spaces are important, and ministers  clearly benefit from being able to 'think the unthinkable'. But this argument can be overdone: for example, opening the policymaking process to others, has many advantages (as the Institute for Government has demonstrated). The problem? Is there a problem protecting such ‘safe spaces’? Section 35 of the Act already provides an exemption for formulation of government policy, and Section 36 for ‘Prejudice to effective conduct of public affairs’, particularly collective responsibility. In the second quarter of 2015, these were the ninth and eleventh most-used exemptions by government departments in response to FOI requests. Cabinet members can also exercise a ministerial veto. The Commission’s call for evidence notes government concern at a changed legal interpretation of the veto. But the veto has only been used seven times since 2005. If the Government does want to strengthen its protection of ‘safe space’, it will need to present convincing evidence that preserving the status quo is damaging. The Justice Select Committee examined this issue in 2012, finding it was difficult to assess whether the Act had had the alleged ‘chilling effect’ on government policy. Some in policymaking had suggested it was a problem, but research by the Constitution Unit found only a ‘marginal effect’. Given the value of ‘increased openness’ brought about by the Act, the Justice Select Committee concluded it was ‘cautious about restricting the rights conferred in the Act in the absence of more substantial evidence’ – in other words, it would need compelling evidence to recommend changes and there was none. In its response, the Coalition Government agreed: it felt ‘that the legal framework of the FOIA, through both the exemptions and the availability of the veto, offers sufficient protection’ for Cabinet records and safe space. The way forward Technological advance and concerted Government efforts mean that the UK Government is more open than ever. Ministers rightly point to the UK’s high international standing on open data and its position at the top of international indices, as we reported earlier. But it would be wrong to assume open data can replace FoI. The two may be complementary (witness TfL’s analysis of FoI requests to work out what open data to publish) but they are different: open data is proactively published at government’s behest, FOI disclosures are reactively in response to requests. The latter is particularly important, given the lack of any statutory right to data or legal underpinning of the open data regime. If the Commission ends up recommending restrictions to the Act, it will need to present compelling evidence that ‘safe spaces’ are being threatened to the extent that effective government is imperilled. Its recommendations will need to be clearly proportionate to those threats, taking into account the opposing evidence that excessive secrecy itself undermines effective government. If the Government ends up accepting any recommendations to restrict the Act, its actions need to be placed within a much wider discussion about openness and transparency. As it stands, the Commission has such a narrow remit that, as Ben Worthy points out, it ‘tilts all discussion naturally towards the two issues of damage and costs, rather than any more equal cost-benefit analysis’. There is no consideration, for example, of whether to extend the Act to private providers of public services. The Institute for Government has drafted a standard contract clause to get some key data released, and we believe there is a legitimate debate to be had about private providers being subject to the same FoI rules as public ones (which may be happening). While the Commission is unfortunately constrained by its remit, any Government response is not. ‘The climate of public opinion has changed: people expect much greater openness and accountability from government than they used to.’ Those words resonate more now than they did when first published as part of Your Right to Know in 1998. We are still in the relatively early stages of assessing how best to govern in a more open age. As with the digital revolution, this could fundamentally alter the relationship between government and governed, and how government operates. The public and civil society have already become used to greater openness; they are unlikely to tolerate the diffusion of the 'disinfecting sunlight’ already shining on government.