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The state of FOI

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Martin Rosenbaum | 12:53 UK time, Wednesday, 20 May 2009

Big BenAs the House of Commons now moves to reform its expenses system, it's worth asking what this whole episode tells us about the state of freedom of information in the UK. I've come to the following conclusions so far - and would be very interested in your thoughts on them.

(1) Freedom of information has been proved to be a valuable tool in promoting accountability for the spending of public money. Whatever its other merits or demerits, this surely can't be denied.

If an FOI Act had not been passed, this information would never have entered the public domain. It would not even have been collated in one place. Possibly some individual scandals might have emerged, but nothing approaching the scale of what has now come out. And so without FOI, there wouldn't have been anything like the same pressure for reform of what is now universally regarded as an unacceptable system.

Green Book(2) However, FOI legislation itself can be insufficient to change behaviour. The Freedom of Information Act was passed in 2000; some MPs took note and started to worry about its implications for their expenses; the Act then came into force in 2005. Yet from the material published by the Telegraph, this clearly did not deter many MPs from their questionable claims.

Maybe they did not envisage the eventual level of disclosure; maybe they had convinced themselves that the House of Commons Commission would manage to block the FOI requests, or that the Parliamentary attempts to exclude MPs from FOI would succeed; maybe, captured by a form of groupthink, they just reckoned that there was safety in numbers.

The FOI Act has only made a big difference because people used it, in this case a number of journalists - freelance Heather Brooke, the Sunday Telegraph's Ben Leapman, and the Sunday Times' Jon Ungoed-Thomas - who were determined to ask questions and fight their case through the courts against the resistance of the House of Commons authorities.

(3) The drive to transparency over MPs' expenses wasn't much to do with the Information Commissioner. He ruled that [55Kb PDF]:

"It is not necessary for fully itemised amounts to be disclosed in order to meet the legitimate interest of members of the public in knowing how public money has been spent".

It was at the next stage in the appeals process where the Information Tribunal overruled the commissioner and demanded the release of full details [157Kb PDF]. Unsurprisingly, there are those within the Information Commissioner's Office who look back at that initial decision and think that it was not their finest hour.

(4) And of course the Telegraph revelations are based on a leak, not on the redacted material that the Commons was about to be forced to release under FOI. This more limited material would undoubtedly still have provoked a huge public outcry and some reform of the system, but would probably not have exposed some of the most dubious practices, mainly because of the FOI amendment [45Kb PDF] which has outlawed disclosures relating to MPs' addresses.

(5) In short, freedom of information was a necessary but far from sufficient condition for the publication of all this data.

foi_oic_chart226.png(6) Nevertheless, freedom of information is now in a stronger and more established and entrenched position. In many countries, the introduction of FOI has led to a backlash from public authorities discomfited by it - for example in Ireland where the government introduced up-front fees for FOI requests, which dramatically reduced the number made [141Kb Powerpoint document].

Here in 2007, the government under Tony Blair did seek to bring in restrictions, plans then abandoned by Gordon Brown when he took over. More recently, some FOI campaigners have worried that remarks by Justice Secretary Jack Straw about the review of the 30-year rule could indicate plans to curtail access to internal government policy documents.

However, it seems to me that in the wake of the expenses scandals, politicians in the UK will now find it very difficult to propose any curbs on freedom of information.

(7) On a more journalistic note, the Telegraph has placed an enormous quantity of data and level of detail in the public domain during this period, well in excess of what is normal even for a very big, long-running story. Much of their reporting hasn't really distinguished in tone and prominence between various degrees of misbehaviour, whether it has been cheating and duplicity, extravagance and greed, devious exploitation of the laxity of the arrangements, seizing eagerly at what's on offer, more marginal playing of the system, inadvertent error, the puzzling but explicable or amusing trivia.

This may just be the inevitable consequence of the vast quantities of material that the newspaper possesses, some of which is complex and capable of multiple interpretation, and the difficulty - if not impossibility - of properly evaluating its full significance in the time available.

telegraph_expenses226b.jpgSome of my colleagues see this as a flaw in the Telegraph's reporting, but there are others (if fewer in number, on the basis of my conversations) who regard this as a good thing - founded on the principle of just putting the information out there and letting the public assess it.

The relevance of this for FOI-based journalism is that information requests can often extract large amounts of data, whose full significance is not immediately apparent. In the future, we may see more examples (although presumably on a much lesser scale) of the media publishing quantities of material without telling their audience what the "story" is.

(8) Finally, in keeping with the spirit of the times, an apology of my own. In the past, I expressed the opinion that the persistent attempts by the House of Commons to prevent full publication of material about expenses was doing more harm to its reputation than would probably be caused by the eventual release. Doubtless there are cases where the reputational damage from insisting on secrecy is greater than that potentially resulting from release of the material in question - but this isn't one of them. Sorry I got that wrong.


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