Can Europe Make It?

A Kafkaesque journey through the Freedom of Information Act

With ministers talking about restricting Britain's Freedom of Information Act, take these experiences of trying to weasel information out of government departments using FoI requests.

Andrew Lownie
26 January 2016
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Flickr/Jonas Schleske. Creative commons.The Freedom of Information Act (FoI) has been in the news recently with the Government complaining that the act is costly to administer and limits the work of government. Plans are afoot to charge for and restrict requests with a new panel due to report later this year.

It is not only contemporary documents, however, which are being suppressed but also historical ones and this - quite independently of our position as responsible citizens - should be of concern to writers. There was an outcry, for example, at New Year when only 58 documents, none of them controversial, were released under the Twenty Year Rule compared to over 500 last year.

Documents are the lifeblood of historians — they provide the bricks to build our picture of the past — and making government records publicly available is an essential part of any democracy. As both citizens and writers, we should be very concerned about this suppression of our past. How can history be written accurately without access to all the documents?

Having just researched a life of the spy Guy Burgess, I’ve had some experience of how the Government brazenly flouts FoI and the Public Records Act which requires all government documents to be deposited in the National Archives after twenty years unless there is a specific exemption on grounds of national security.

I’ve had particular problems with FoI requests to the Cabinet Office — itself responsible for the smooth working of FoI across the whole of government — the Home Office and Foreign Office where they use catch all National Security absolute exemptions, where public interest arguments are impermissible, and they need to give no reason for withholding the documents. They take the view that any mention of the Intelligence Services should be concealed though there are sanctioned histories of MI6 and MI5.

No one can challenge or verify this including the Information Commissioner’s Office which is meant to police FoI. One of my recent refusals was on the grounds the document gave away surveillance techniques – it is over sixty years old.

Some of government’s tricks include:

1. Simply not answering requests.

 2. Carefully worded replies. A recent example: “We have researched our records and have to tell you that we hold no files relating to Wilfrid Mann that fall within this category” ie “files that are still in existence and at least 50 years old if to do so would not damage national security”

3. Being difficult. I was asked to obtain a death certificate for a spy born in 1908 who has several online obituaries in national newspapers to prove that he wasn’t alive at 106.

4. Playing for time. Departments are required to respond to requests within twenty working days but they simply keep extending deadlines claiming the request – even simple ones – take longer to process. Some of my requests from last January are still trundling through the system.

5. Agreeing to release documents and then doing nothing. A file on Anthony Blunt supposedly released last April has still not reached the National Archives but is ‘temporarily retained by Department’. Other sensitive files seem constantly ‘in use’ by the department and therefore not available at the National Archives.

6. Claiming that investigating the request will take more than three days and cost the department £600 though how they know that before they start is a mystery.

7. Aggregating separate requests for different names and then refusing on grounds of costs of compliance. The sinisterly named Knowledge Management Department of the Foreign Office told me they would only process one request of mine every sixty days though they are required by law to agree some sort of timetable.

If National Security cannot be invoked then other clauses are used such as endangering relations with other countries. A request I have in on the spy George Blake, who has been convicted of spying, appeared on television programmes and written a memoir, has been refused because it would contravene his rights under the Data Protection Act.

The Government claims they do not have the resources to properly administer FoI but they spend £150 million on government information services compared to £6 million on FoI. From my experience extraordinary amounts of man hours are spent resisting FoI requests.

The Foreign Office still have 600,000 records – some accounts say double that - going back to the Victorian period. The files, held at the high security facility Hanslope Park shared with MI6 and MI5, only came to light during a court case involving compensation for Mau Mau internees and only reluctantly did the Foreign Office admit to their existence. They claim it will take years to review for release - based on the time it has taken to declassify 20,000 colonial files, it is estimated it will take seventy-five years. What possibly could still be secret and require vetting?

Though some 400 Burgess & Maclean files were released in October, they are still riddled with redactions and retained folios – most made in October 2014 - keeping material closed for over a hundred years including material already in the public domain such as Burgess’s service in the Joint Broadcasting Committee.

Several documents have actually had the period they are to be withheld extended. I found one relating - I think – to a suggestion that Burgess had an affair with one of his male colleagues in the Foreign Office. The man died twenty years ago yet last year it was decided the file should now be closed until 2133. It seems the authorities have learnt nothing since they were roundly criticised during the Burgess and Maclean case about the need for straightforward dealing with the media and public.

In the United States, archivists go out of their way to suggest new revenues of research. In this country government archivists seem to feel their job is to protect documents from release. Ironically I found more secret material in the Russian archives than I did in British ones. One of my key revelations about a fellow spy in the British Embassy in Washington, Wilfrid Mann, came not from government documents but an unpublished memoir by a former Under-Secretary responsible for the Intelligence Services, Sir Patrick Reilly.

There is an opportunity with the new panel review to ensure FoI works more smoothly though I don’t have high hopes as it is filled with politicians who are suspicious of open government and no historian or journalist.

For a start, there needs to be proper separate oversight. More or less every internal review — which is conducted by the same department — I have requested has upheld the original decision. A rare exception was when it was conceded that the material had already been made available to another researcher before so should be open to me. A complaint to the head of the Foreign Office about its Knowledge Management Department was simply passed back to the section I was complaining about.

There is an Advisory Records Committee but it has no power and its members appointed by the Lord Chancellor. It needs to be replaced with an independent body and given stronger powers.

The culture of cronyism needs to go. At the moment favoured tame journalists are given access to material. For example, I was told at the beginning of last year it was ‘physically impossible’ to access the Guy Burgess files due to be released last autumn only to discover that a radio programme had had months of access in the spring. The material is either secret or it is not.

The balance between accountability, transparency and open government and protecting national security is always a difficult one to strike. Once records are released then the genie is out of the bottle but it is hard to argue that records, which in the Burgess case are over sixty years old and where the officials involved must be dead , should not be released. If our history is to be written accurately, we have to have all the records made available - not just those a government department believes we should have.

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