Freedom of Information: Analysis

From private emails to Post-it Notes: How politicians avoid scrutiny

Matt Hancock, who Labour accused of trying to ‘conduct government business in secret’, joins a long list of officials who have attempted to resist transparency

Ben Worthy
29 June 2021, 10.54am
Matt Hancock did not have a Health Department email address, instead using his private account
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Tim Ireland/Xinhua/Alamy Live News

The news that Matt Hancock routinely used a private email address while in office has prompted a flurry of questions. Labour has called for an investigation, accusing the now departed health secretary of attempting to “conduct official government business in secret”.

The revelation that the former health secretary did not even have a departmental email address has been followed by news of other Conservative ministers using private email. So why would politicians use only their personal email account? Well, the main reason is probably to avoid Freedom of Information (FOI) legislation.

FOI can be a powerful weapon, and one that is often hard to resist. However, this doesn’t stop politicians and governments from trying their best to stop it revealing things. While government-wide, systematic resistance is rare, there are examples of it, often at very high levels.

There are numerous strategies that politicians can use to avoid public scrutiny, which we can roughly separate out into ‘hide’, ‘fight’ and ‘undermine’.

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Hiding

One common response is to see if you can, in some way, hide from FOI laws. Laws are often extensive, but they don’t cover everything, and there are often grey areas you can duck into.

A famously opaque area is around meetings. Do FOI laws make for non-minuted, informal modes of decision-making, as officials turn to phone calls and disposable Post-it Notes? The Swedish government, which has the world’s oldest openness law, claims it does and calls this the ‘empty archives’ phenomenon, though it’s now better known as the ‘chilling effect’. Mentions of ‘Post-it Note’ approaches date back to the US in the 1960s and Australia in the 1980s. More recently, was a group of officials in Washington who were tasked with taping President Trump’s shredded documents back together.

In the UK, investigative journalism cooperative The Ferret unearthed evidence that the Scottish Environment Protection Agency asked for ‘verbal’ updates instead of written documents, mentioning FOI as a reason (see the emails here on page 11-12). This chain from 2008 shows a UK official apparently urging others to delete emails because of FOI. The RHI Inquiry in Northern Ireland also revealed a failure to record meetings, and the head of Northern Ireland’s Civil Service, David Sterling, admitted that the practice of taking minutes had “lapsed” after devolution and mentioned FOI specifically as a factor. The Inquiry opened up the almost existential question of when is a meeting a meeting, and when is it a ‘word in the corridor’?

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Emails are another grey area. Politicians rapidly concluded that they could use private email systems to avoid FOI. In the UK, Michael Gove was found to be using a private system when he was education secretary (reportedly under the pseudonym ‘Mrs Blurt’). Meanwhile US politicians who switched to private email include Sarah Palin, Steve Bannon, Jared Kushner and Ivanka Trump. And now, it seems, much of what we may know about the British health service during the pandemic is hidden in Matt Hancock’s private emails, instead of his official one. What ministers and ex-ministers don’t know is that the Information Commissioner's Office (the watchdog tasked with overseeing FOI) long ago ruled that even private texts or emails are covered under the laws if ‘information “amounts to” public authority business’ or are “generated in the course of conducting the business of the public authority”.

A newer issue is the rise of government by WhatsApp. While this is not necessarily done to avoid FOI laws, it could very much have that effect. WhatsApp is now, as this piece by Sebastian Payne puts it, the ‘political communication method of choice’ as ‘thousands of one-to-one exchanges and informal groups that have replaced emails and formal meetings when it comes to decision-making’. The problem is that ‘no one in Whitehall is certain of how official these discussions are’ and some users ‘delete messages after seven days, shredding any “paper” trail’. The Citizens, a non-profit organisation, found that officials and ministers can now routinely self-delete messages after meetings leaving an empty audit trail.

Fighting

If avoidance isn’t enough, a second option is to fight. Fighting FOI can involve just a general slow down, foot dragging and reluctance. It can also involve simply cutting money and staff, another effective tactic. The UK government, 16 years into FOI, is clearly flagging in its enthusiasm, and what I called a kind of ‘collective irresponsibility’ has taken hold, which means if no one obeys the law no one gets in trouble. The Institute for Government found that just 43% of FOI requests to UK central government in the first three-quarters of 2020 were answered in full, compared with 64% when the law first arrived in 2005.

But government bodies can also be creative over questions of timing, requesting and release. One tactic seen in Ireland and elsewhere is for government departments to deprive journalists or others of scoops by publishing request responses online simultaneously. Even more creative has been the approach of the FBI, which in 2017 asked that FOI requests be sent only by fax (though the FBI FOI email address appears to still exist).

Tony Blair called himself a ‘nincompoop’ for passing FOI law

A more sophisticated approach is to delay the answering of a request by creating specific systems to ‘manage’ FOI, often with the involvement of press advisers and media officials. This was found by Professor Alasdair Roberts when he studied more than 2,000 Access to Information requests in Canada. In 2018 the Scottish Information Commissioner spoke of claims of ‘deliberate delaying tactics and requests being blocked or refused for tenuous reasons’. The Met Police has also been accused of ‘managing’ and flagging requests relating to Black Lives Matter protests.

This brings us neatly to the UK ‘Clearing house unit’, which was intended to, either or both, coordinate responses across government or ensure that FOI did not get ahead of itself. The evidence points to the Clearing House blocking information and circulating lists of journalists. The government has denied that the Clearing House dictates responses to FOIs and we should, of course, never believe anything until it has been officially denied. The Cabinet Office also had the temerity to drag my co-authored book into it, too, so perhaps I’ll find out if there’s such a thing as bad publicity when the next royalty check arrives.

Undermining

The final option would be to change the law itself. No country has yet repealed an FOI law, though some have tried to alter and weaken them (take a bow, Denmark).

In the UK, there have been a series of attempts at ‘dismantling’ or chipping away at the law since 2005, with roughly one attempt floated every 18 months to two years. Proposed changes included bringing in a flat fee, excluding Parliament from the law, clamping down on ‘industrial users’. Only one of these has succeeded, when the monarch and heir were removed from the ambit of the law. The rest were powerfully resisted, and politicians backed away.

What’s happened instead is a flurry of complaints. Tony Blair led the way, calling himself a “nincompoop” for passing the law and claiming that “for political leaders, it’s like saying to someone who is hitting you over the head with a stick, ‘Hey, try this instead’, and handing them a mallet.” David Cameron then spoke of how FOI was “furring up the arteries of government”. While prime ministerial moaning should be a sign of a law working well, it’s odd for politicians to complain about laws, and adds to the narrative that FOI is somehow a ‘problem’ rather than a democratic right.

Overall, FOI is probably here to stay. The more overt attempts to clamp down or weaken laws, and even getting caught avoiding them, carry risks for politicians. What is commonly known as the ‘Streisand effect’ means drawing attention to the very thing you are trying to keep secret. It would be a brave, if not foolish, politician who stood publicly against the principle of the right for the public to know. But it’s in the more subtle resistance, between managing requests, foot-dragging and WhatsApp, where laws can be undermined from within.

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