Why we’re taking the UK government to court to protect Freedom of Information
openDemocracy is taking legal action over the Cabinet Office’s ‘Orwellian’ Clearing House that vets FOI requests and could breach data protection law
openDemocracy is going to court to force the British government to release full details about its controversial ‘Clearing House’– a secretive unit inside Michael Gove’s Cabinet Office, which is accused of blocking sensitive Freedom of Information (FOI) requests.
In November, openDemocracy revealed that the ‘Orwellian’ unit in the Cabinet Office was vetting FOI requests and sharing personal information about journalists across Whitehall in ways that experts believe could be in breach of the law.
The Cabinet Office has refused to disclose full details about the Clearing House operation under the Freedom of Information Act – despite the FOI watchdog, the Information Commissioner’s Office, ordering it to do so in July 2020.
Conservative MP and former Brexit secretary David Davis told an openDemocracy live discussion last week that the “pernicious” Clearing House should be “abolished”.
Now openDemocracy is going to an information tribunal in a bid to force transparency on the Clearing House.
On Thursday 29 April, a first-tier tribunal will hear the case. openDemocracy has instructed Leigh Day, a firm of public law specialists, to argue its case and has received support from across the British media.
More than a dozen current and former Fleet Street editors signed an openDemocracy letter earlier this year demanding ‘urgent’ action on Freedom of Information and calling for an investigation into the Clearing House. More than 48,000 people have supported our petition calling for FOI reform.
An openDemocracy report published last year found a sharp drop in responses to FOI requests in recent years. The British government has been accused of failing to respond to requests for information in recent months, including around the Greensill lobbying scandal and Boris Johnson’s controversial Downing Street refurbishment.
The road to this week’s tribunal has been long. openDemocracy journalist Jenna Corderoy first asked the Cabinet Office for details about the Clearing House operation back in August 2018.
Last year, the Information Commissioner’s Office ruled that the Cabinet Office had to hand over information to openDemocracy following a successful appeal against the government’s decision to refuse to release information – but the Cabinet Office has refused to fully comply with the regulator.
“It is of the utmost importance that the documents I seek should be disclosed in full. We need to know in detail how the Cabinet Office – which is in charge of FOI policy yet has the worst record on FOI among central government departments – operates the Clearing House,” said Corderoy.
I shouldn’t have to go to a tribunal to get transparency. This has taken almost three years of legal battle
The department, headed up by Cabinet Office secretary Michael Gove, released a limited number of documents related to the Clearing House to openDemocracy in September last year, following the ICO judgement, and handed over more documents in March, just weeks before the tribunal case was due to be heard. But it has still to release full details about how the Clearing House operation functions – which is why openDemocracy is taking action.
“I shouldn’t have to go to a tribunal to get transparency,” said Corderoy. “This has taken almost three years of legal battle. Though the Information Commissioner’s Office told the Cabinet Office to hand over full details of the Clearing House operation, we are having to go to court to get them.”
Erin Alcock, from the Human Rights department at Leigh Day, said: “Our client is seeking disclosure of information from the Cabinet Office to better understand and analyse how the Freedom of Information [unit], Clearing House, is being operated by the department.
“Our client has serious and legitimate concerns that the operation of this Clearing House could present barriers to transparency and access to information the public should be entitled to, and may not accord with the spirit of the Freedom of Information Act.”
openDemocracy’s cause has also been backed by former Labour shadow chancellor John McDonnell, who believes FOI reform is badly needed.
“The weaknesses and undermining of the FOI system prevent the necessary sunlight being shone on government decision making and is critical to upholding democratic accountability,” he told openDemocracy.
“I will be raising the FOI question as part of the Public Administration and Constitutional Affairs Committee inquiry into Greensill and probity in government.”
The National Union of Journalists’ general secretary, Michelle Stanistreet, said: "The NUJ is fully supportive of the journalists determined to get to the bottom of the existence and operation of a secret Clearing House operated by the Cabinet Office.
“Freedom of Information underpins our democracy and the ability of journalists to properly hold power to account and uphold the public’s right to know. Wasting public resources on attempts to stymie and thwart legitimate requests is outrageous and has to stop.”
Art of Darkness
The Clearing House, which was housed in the Ministry of Justice until 2015, gives advice to government departments “to protect sensitive information”. As openDemocracy has shown, this has included blocking the release of files about the contaminated blood scandal to a campaigner whose father died after being infected with HIV by the National Health Service.
The Clearing House has also signed off on FOI responses from other Whitehall departments – effectively centralising control within Gove’s office over what information is released to the public – and collating lists of journalists with details about their work.
Freedom of Information requests are supposed to be ‘applicant-blind’: meaning who makes the request should not matter. But privately government departments commented that “Corderoy is from OpenDemocracy”.
Cabinet office minister Michael Gove maintains that “all FOI requests are treated exactly the same” – he said as much in Parliament this week – but a journalist at The Times, George Greenwood, recently reported on how his FOIs had been targeted by the Clearing House, too, with one official describing him as the “ever-active Mr Greenwood”.
The Cabinet Office has dismissed openDemocracy’s coverage as “tendentious” – but last month, in a rare show of transparency, the Cabinet Office publicly published details about the Clearing House, including that the unit’s remit covers the Supreme Court and the Crown Prosecution Service.
Gove’s ministry has been accused of a ‘lack of understanding of the basic principles’ of Freedom of Information legislation
Most FOIs are sent by members of the public, but fewer and fewer receive any information. openDemocracy’s Art of Darkness report on FOI found that the percentage of requests granted in full had fallen from 62% in 2010 to 44% in 2019.
The Cabinet Office is the worst offender, routinely withholding more information than any other government department. The Information Commissioner’s Office has accused Gove’s ministry of a “lack of understanding of the basic principles” of Freedom of Information legislation.
This week, a new report from transparency charity mySociety warned that FOI was in danger of “sliding into obsolescence” without urgent reform.
openDemocracy’s Jenna Corderoy does not expect that this will be her last visit to the first-tier tribunal.
“I have more FOI requests and internal reviews with the Cabinet Office about the Clearing House,” she says. “It should come as no surprise that they've remained unanswered. Will I need to go to the tribunal again?”
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