Maurice Frankel (London, Campaign for Freedom of Information): Gordon Brown’s recent Speech on Liberty is a turning point in the government’s approach to freedom of information. For the first time since 1997, a prime minister has not only spoken out clearly in favour of FOI but proposed to extend, rather than restrict, the legislation.
Tony Blair once proclaimed the benefits of FOI too - but only in opposition. In government he rarely mentioned, let alone showed pride in, the measure. Even before reaching the statute book FOI was cold-shouldered. During its final parliamentary stages, ministers let it be known that if peers went too far in strengthening the bill the government might not even bother to reverse the changes in the Commons. The measure would simply be allowed to die.
Once law, the Act’s implementation date was delayed by over four years, supposedly to allow authorities to prepare. In fact it had the opposite effect. Many of the specialist FOI staff who had been put in place had moved to other posts by the time the law took effect. By January 2005, when it came into force, some authorities were less ready for FOI than they had been two years earlier.
Last year, the government’s unhappiness with the legislation manifested itself in an devastating two-pronged attack. New regulations were proposed to make it easier for authorities to refuse FOI requests on cost grounds. The proposals would have allowed many thousands of requests which are currently answered to be refused in future, regardless of their merits. Politically contentious requests or those seeking to open up new areas of information for the first time would have been amongst the casualties.
Then the government gave surreptitious backing to a private member’s bill to remove Parliament itself from the scope of the FOI Act. Although David Maclean’s bill was passed by the Commons, it faltered in the Lords where no peer could be found to introduce it.
One of Gordon Brown’s first acts on becoming prime minister was to kill off this ill-advised measure. In his ‘Governance of Britain’ green paper he announced: “It is right that Parliament should be covered by the Act”.
Now he has gone further and put an end to the proposed fees regulations too. In his October 25 speech he said:
“Freedom of Information can be inconvenient, at times frustrating and indeed embarrassing for governments. But Freedom of Information is the right course because government belongs to the people, not the politicians….
When anything is provided without cost, it does risk being open to abuse. However the Government does not believe that more restrictive rules on cost limits of FoI requests are the way forward. And so Jack Straw has decided, and has announced today, that we will not tighten FoI fees regulations as previously proposed.
We do this because of the risk that such proposals might have placed unacceptable barriers between the people and public information. Public information does not belong to Government, it belongs to the public on whose behalf government is conducted."
Brown’s recognition that FOI can be “inconvenient, at times frustrating and indeed embarrassing” was not purely hypothetical. Only weeks before becoming prime minister he had been heavily criticised after FOI disclosures about his 1997 decision to end tax credits for pension funds. The furore cost him dearly in the opinion polls on the eve of becoming PM. But in the resulting Parliamentary debate Brown defended the FOI Act, declaring that he supported the release of the papers.
The prime minister has not limited himself to abandoning attempts to restrict the Act. He has announced a consultation to extend the Act to private contractors providing services on behalf of authorities and to private bodies with public functions. Candidates for inclusion would include PFI contractors, private suppliers of GP and other NHS services and professional regulators like the Law Society. A second review will consider reducing the 30 year period for the routine declassification of old cabinet papers.
The FOI Act has never been completely friendless in government. Having a prime minister who is openly supportive of FOI is unheard of. Many obstacles, caused by an implicit understanding that the Act was ‘legislata non grata’ in Downing Street, could now be unblocked.
A key challenge is the Information Commissioner’s backlog. Some complaints have sat in the Commissioner’s office for over a year before even being looked at by an investigator. Decisions requiring disclosure which appear almost three years after the original request, as some do, defeat the purpose of the Act. How the government responds to that problem – which requires more funding - may be Mr Brown’s next critical FOI test.