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Freedoms at risk? What the ‘Spider Memos’ tell us about the right to open government in the UK

The attempt to stop us seeing Prince Charles' letters pose a much bigger question: how transparent is the British government?

Nick Maxwell
19 May 2015
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Freedoms at risk? What the ‘Spider Memos’ tell us about the right to open government in the UK

The UK government spent 10 years and £400,000 attempting to prevent the Guardian’s Freedom of Information (FOI) requests to disclose the so called ‘Spider Memos’ from Prince Charles.

As part of the case, in March 2015, the UK's highest court found that the use of a Ministerial veto to override a judicial decision on a FOI request was unlawful. In response, recent statements indicate that No.10 intend to bring forward legislation to strengthen the use of the veto in FOI cases. There are also fears that the grounds for civil servants to refuse freedom of information requests may also be extended in any new legislation.

This weakening of UK citizens’ rights of freedom of information should be a matter of concern.

The letters have highlighted the use of the Ministerial veto to block requests for information, but this is just one of a number of weaknesses. A recent review by Transparency International UK found that there are already a number of substantial shortcomings in the use of the Freedom of Information Act (FOIA) to enable accountability and scrutiny of the UK government by citizens.

In particular, there are some significant problems with the appeals process in terms of outcomes, timelines and, perhaps consequently, the numbers of requests taken to appeal. Moreover, our analysis also suggests that some of the most powerful Whitehall departments have the worst FOIA compliance records.

Poor disclosure performance from key departments.

Ministry of Justice (MoJ) data shows that the disclosure rates of key Whitehall departments are consistently, and sometimes significantly, lower than the central government average. Over the four year period 2010 to 2013, the 21 departments of state responded in full to 56 per cent requests and provided no information in 28 per cent of cases.

The Cabinet Office was the worst performer in Whitehall over the four year period (28 per cent disclosed, 50 per cent withheld). The MoJ came second (35 per cent disclosed, 50 per cent withheld), and the Foreign & Commonwealth Office, Treasury and the Home Office performed marginally better but were still the wrong side of both averages.

It may be that these rates reflect the specific or sensitive nature of the departments’ work. However, the Ministry of Defence, another large department which handles sensitive information (national security and commercial confidential data), has far better disclosure statistics (64 per cent disclosed, 21 per cent withheld).

Poor judgments by government about what merits release at the first stages of request.

Transparency International-UK analysis suggests that there is widespread failure within central government departments at the first stage of appeal – ‘internal review’. When a FOIA request is refused, the requester can submit an appeal to the authority which issued the decision. This is known as an internal review.

MoJ statistics show that central government departments have upheld in full their initial handling of requests 75.5 per cent of the time for the calendar years 2010, 2011, 2012 and 2013. In the next stage of the appeals process requesters can challenge the decision by appealing to the Information Commissioner’s Office (ICO). ICO data shows that over the same four-year period the ICO upheld or partially upheld 52 per cent of complaints about central government departments. This suggests about half of central government internal reviews, which upheld in full departments’ initial handling of requests, were incorrect judgments that overly restricted open governance in the UK.

Long appeal timelines also present a major barrier to requesters.

At 10 years, the spider memos case was exceptionally poor in terms of the period between request and receipt of information. However, long timelines are the norm for a requester facing any appeals process. The typical duration between the date of a complaint to the ICO from a citizen and the date on which the ICO issues a decision notice is five months, our analysis suggests.

Transparency International reviewed all of the 95 ICO Decision Notices published in January 2015 and found that, on average, the ICO issued a Decision Notice 22 weeks after the date of the complaint. But, this does not reveal the full period which requesters had to wait. Complaints were submitted to the ICO, on average, 17 weeks after the initial FOIA request was made. This means in total, a requester waited an average of 39 weeks for the publication of a Decision Notice.

Where the disclosure of information is ordered in a Decision Notice, public authorities are given five weeks to comply. This means that a requester could wait, on average, 44 weeks from the date of the initial request to actually receive the requested information.

One of the reasons for long appeal averages may be as a result of budget reductions, as the ICO is operating on 23 per cent less budget compared to 2010-11. The low volume of appeals at internal review and ICO stages is concerning. It suggests that public bodies which do not apply the FOIA correctly are rarely challenged and held to account, internally or externally.

Beyond the FOIA, there are few rights provided to citizens to engage in government and hold government to account. The vast majority of the UK’s open governance regime is provided at a policy level, on the discretion of policy makers.

There is a very strong case for protecting UK citizens’ rights to open governance, and even extending them.
Firstly, without rights, it leaves the system vulnerable to the political momentum behind the open data agenda and to the discretion of policy-makers. Secondly, without legislation, it is difficult to audit the open data work of public bodies and achieve high uniform standards and consistency where necessary. If an authority wishes to suppress data, there is little the public or regulators can do to stop it and it would be difficult to find out whether such suppression was happening or not.

Those in executive power may suffer criticism and embarrassment following a disclosure of information in the public interest. Ministers may disagree with one another, or other parts of government, about how much transparency is sufficient. A policy-driven regime gives the holders of information the power to determine whether the public interest test, which carries a degree of subjectivity, is best served by withholding or disclosing information. A fundamental strength of a rights-based approach to transparency is that citizens can challenge decisions by the executive and compel bodies to disclose information.

Our analysis has shown that, even where citizens’ rights do exist under FOIA, the executive routinely fails to make the appropriate level of disclosure. Despite its problems, the FOIA appeals process is administered independently by the ICO and the courts, both independent institutions that are demonstrably better placed to judge whether disclosure serves the public interest.

Policy that relies on discretion – on the part of the policy maker – to establish transparency or invite participation presents problems for achieving genuine accountability and effective open governance.

The Prime Minister has repeatedly stated a policy objective of making the UK “the most open and transparent government in the world”. Any new legislation which affects UK citizen’s freedoms to information and rights to open governance will be a key test of that commitment.

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