Tuesday, 2 June 2009

Interview with Maurice Frankel, Director of the Campaign for the Freedom of Information

Interview with Maurice Frankel, Director of the Campaign for the Freedom of Information

Maurice Frankel is Director of the Campaign for the Freedom of Information, which for twenty years has been at the forefront of the drive for government openness.

ImageQ: How did you get involved in the subject of FOI?

A: My first job on leaving university was with a group called Social Audit, which was looking at government and corporate accountability. I was working on access to information issues there. I was involved with the Campaign for the Freedom of Information (CFOI) from the start, when it was set up by Des Wilson. He brought me in to help him set it up and to do the research. The group was launched in early 1984.

Q: What was the overall position then in relation to FOI in the UK?

A: Well, at that point there were very few FOI rights. There were some public registers of information in certain areas, but that was it. You didn’t have the right to see personal files, although the Data Protection Act (DPA) had just been passed, but it was three years until it came into force. So there was very little and the basic premise was that the information belonged to the public authorities, not to you, and it was up to them to decide whether you could see it.

Q: Why do you think that culture had developed?

A: I think it’s probably the natural state of a bureaucracy that it doesn’t welcome outside scrutiny and it doesn’t welcome participation by the general public, although it might want the participation of certain key stakeholders who are important to it. And it’s very sensitive to criticism and, as it sees it, it’s entitled to use its control over the information to minimise unpleasant consequences, such as criticism from the press and pressure groups, opposition parties and so on. These are part of the inherited rights – the inalienable rights - of the bureaucracy.

Q: Any government introducing FOI legislation has something to gain in terms of public trust, but the might have a lot to lose through the exposure of embarrassing or damaging information. What then do you think prompted this government to introduce the Freedom of Information Act?

A: Well, it was the longest standing manifesto commitment that the Labour party had when it came to office in 1997. There had been six successive manifesto commitments to such legislation. It had been inherited from the time it was party policy to nationalise the banks. Almost everything else from those days had been left behind as the Party changed, but this was something it retained. It was part of its critique of the Thatcher Government that it was doing things in secret that it knew the public wouldn’t tolerate if the public was informed about it. And it was part of the way Labour defined itself and the change that it would bring once in government.

It’s always tempting for oppositions to promise this and less welcome for them to have to implement it. But you expect them to understand this and to allow for it and to realise that there is going to be some inconvenience for them in delivering it. It’s part of the price you pay for the overall benefits to themselves and their relations to the public.

Q: How much internal opposition did you sense there was to the FOIA from within both the Government and Whitehall?

A: Whitehall was ready for FOI when Labour took office. They expected that this would be a high priority and that there would be a tough FOIA. The problem was not Whitehall refusing to do it, it was rather that there wasn’t really a strong political commitment. The exemptions to the release of information were allowed to rise to the surface and were given more weight than they should have been.

Q: Was it possible to identify where within government the hostility towards the Act, or the foot dragging, stemmed?

A: I’m not sure. I mean before the elections, back in 1996, Blair himself came and spoke at our annual awards and made a very powerful speech in favour of FOI, in which he made it clear that it was part of his personal manifesto and his approach to doing politics. So everybody thought that something very tough was going to come as a result of that. When Labour got into power David Clark was given responsibility for FOI and he produced a very good white paper at the end of 1997 but that was then taken away from him. He lost his job and the white paper was largely torn up and a vastly feebler version was adopted as a draft bill.

Q: What was dropped from Clark’s original proposals?

A: It was originally proposed that there should be no class exemptions, that all exemptions should have harm tests with the test of harm being whether disclosure would cause substantial harm to the interests concerned, and that there should be no ministerial veto. All of those were watered down to one degree or another. In some cases the watering down was partly reversed later on.

Q: And you helped achieve that partial reversal?

A: Yes. I mean the draft bill showed no real preparation or understanding and had a provision in it saying that public authorities could insist on knowing why you wanted the information and could disclose it to you subject to restrictions on what you could do with it. That was when a public interest disclosure was involved. They could insist on knowing why you wanted it and they could give it to you in the public interest on the condition that you didn’t make it public! It was a basic misapprehension about what the legislation was about. We described this as the right to pry and the right to gag, and they did drop this from the Act.

I think the critical turning point was that they agreed half way through to drop what was a purely voluntary public interest test. That is, they had class exemptions of extraordinary breadth, including everything to do with the formulation of Government policy, not just advice but also the factual information, and the only counter to it was a discretionary power to disclose in the public interest if they wanted to, but this was entirely outside the range of the Information Commissioner’s powers, so the Commissioner couldn’t require it. I think the critical thing was, they agreed to make the public interest test mandatory. Although they retained the ministerial veto, that fundamentally shifted the organisation of the bill, so, what was then a gigantic class exemption to do with policy formulation, for example, became subject to a statutory test of whether on balance disclosure was in the public interest or not. This then gave you some chance of getting this type of information. We were arguing that, until that change was made, a public body like BNFL would be left to decide for itself whether it was in the public interest to tell the public about nuclear hazards, and Dame Shirley Porter would be left to decide for herself whether it was in the public interest to make public information about the arrangements that were made to sell council houses in Westminster, with no right of appeal against her decision. That would have been laughable. So, although there is a ministerial veto, the public interest is now built into the statutory provisions of the Act.

Q: Which leads on to, what do you see as the particular strengths and weaknesses of the Act that was eventually passed?

A: The strengths are, first of all, the very wide scope of coverage, both in terms of the range of public authorities, which is vast, and the fact that it’s fully retrospective. There are some very useful things, such as the fact that, when requesting information, you don’t have to know about the Act or your rights, which means the rights are available to everybody, not just those who are well informed. It’s very helpful that the duty is on the public authority to comply with all requests. If you talk to people in other countries where they don’t have this provision, public authorities don’t treat requests with the same seriousness if they are made informally and it’s only when you invoke your rights that you’re likely to get them. So we’ve avoided that. And I think that the other positive thing is the duty on public authorities to advise and assist. So, the Act is set up, at least in the initial stages, to be accessible to people; you don’t have to be an expert in the legislation to know how to make a request.

As for the weaknesses, we have to wait for what the fees regulations are going to be. Beyond the cost issue, there’s the ministerial veto; we don’t know how often it will be used and how willing ministers will be to use it. Their willingness to say no to the Parliamentary Ombudsman under the open government Code of Practice, is not reassuring, so it looks like they’ve already practised biting that particular bullet. I’m sure they’re not going to be vetoing hundreds of requests, but they only need to veto a handful to close off some important classes of information. So quite a lot will depend on how free they are in exercising that veto.

Q: And the use of the veto is most likely to relate to sections 35 and 36? [Editor’s note: sections 35 and 36 of the FOIA deal with the exemptions for information concerning, respectively, the formulation of government policy and the effective conduct of public affairs.]

A: Yes, I think the type of information covered in those exemptions are the most likely target and the experience under the old Code is that the closer it gets to Downing Street and the Cabinet Office, the easier they find it to say no.

Q: Are there any other particular weaknesses of the Act?

A: Well, we were also unhappy about the scope of the exemption for investigations and proceedings, and the implication that information obtained by inspectors and regulatory bodies was all going to be exempt, regardless of a test of harm, and disclosable only subject to the public interest test. Our fear about this is partly that wethink all exemptions should have a harm test and a public interest test. What the Government has gone for in certain key areas is just a public interest test. The problem is that the public interest test, where central government is involved, goes with the veto. And therefore that combination of no harm test and just a public interest test, to which a veto can apply, does give ministers great powers of control over very large areas of information. It might just be a security blanket to reassure them, as they move into this new age, that they can always say no.

The optimistic view is that they will pull back from actually saying no. The pessimistic view is that they won’t be embarrassed about saying no. The central issue is whether there is enough political commitment to FOI from the centre. If government departments understand that the Prime Minister won’t be too concerned if they don’t go out of their way to comply, that will have a major effect on the way the Act operates. But some departments look like they’re taking it seriously as do some public authorities. They’ve been planning for the Act and look like they’ve produced their internal guidance in a positive spirit. A further problem though, is that there’s going to be a difference in the way that routine requests are handled, where everything will depend on the approach of the managers responsible for FOI, and the way in which more seriously challenging requests are handled, where permanent secretaries, ministers and their special advisors will be involved who may have an altogether less positive approach

A lot of training has been done in preparation for the Act, but this generally only hits the people within organisations who are responsible for the day-to-day requests. Some ministers have long made more positive noises than others about FOI and I’m sure will be more positive about it than others.

Q: What about the non-central government public authorities?

A: The situation is very variable. It depends partly on the enthusiasm of the individual officers, partly on whether the authority collectively views FOI as integral to the way it operates, or whether they just hope they’re going to get by and not a lot of attention will be paid to them.

Q: Do you feel the Act will be well used, because, as you’ve described, it’s more user-friendly than the Code it replaces and will presumably have a higher profile?

A: I expect it will certainly be better used than the code. A lot will depend on how the Act is reported in the press. Obviously there is going to be lots of testing of the Act in the early weeks. You can see a scenario in which journalists or others ask for a lot of difficult or sensitive stuff and are refused it initially, and they just decide that nothing has changed and write stories to that effect. That’s a quick superficial test which may show the legislation as doing nothing or very little. I don’t think the Act should be judged until people have started to challenge refusals, first through internal review and then by taking it to the Information Commissioner. You can’t expect public officials to change their attitude to the release of information overnight. The worst-case scenario is that people ask for the minutes of a meeting between Blair and Bush, they are refused it and on that basis write the Act off.

Q: So the credibility of the Act will depend to a large extent on the Information Commissioner?

A: Well, what it depends on first of all is people persisting with their requests and complaints to get it to the Commissioner. He can’t do anything about requests that are just abandoned because people lose interest. But, assuming people do persist, then much does depend on him, yes.

Q: Do you have faith that the Information Commissioner will act fully in the spirit of the Act?

A: Yes, I think the Information Commissioner has been giving off very positive signs about his approach, that he expects the Act to make a difference and that he will be taking a pro-disclosure view. So, we’re optimistic about his role and the effect he’ll have.

Q: Going back to the ease of use question, how do you think our Act compares to equivalent legislation in other countries?

A: It’s not necessarily a very profitable question to ask because you just don’t know how good the legislation is until you see how it operates. If you asked me would you do a straight swap between the American FOIA and ours, I would say no without any hesitation.

Q: Because its operation is so ponderous?

A: No, it’s because there is no public interest test in the American Act and because it has to be enforced in the courts. That’s if we’re looking at a straight swap of legislation, but what you have to look at is legislation, plus an expectation, plus a sensitivity, plus a culture.

I wouldn’t swap the text of the Swedish Act for the UK Act either, because ministerial decisions aren’t even subject to their Act. The enforcement is also relatively weak, but what happens is not a translation of the statutory provisions into action. The effect of the Swedish Act is much greater than the words of the statute on their own would suggest.

Looking at the Commonwealth laws, we always thought that the New Zealand Act was a relatively weak one, but in practice it has turned out to be one of the most successful in driving standards forward. It has a very wide veto, but also a very wide public interest test, which on the whole has done a lot more to drive things forward than the veto has to restrain them. So it’s just difficult to predict from the actual legislation.

When you look at the open government Code of Practice, you could have attempted to predict from the Code itself that there would be very high charges imposed on people, because authorities said they would allow a certain amount of free time, between one and five hours, and thereafter would charge impose charges of £15, £20, or £25 per hour. Actually very few requests are charged for under the Code despite the fact that there is a charging regime. So it’s quite difficult to make an accurate prediction of what will happen in practice based solely on the text of the legislation.

Q: My experience of the US Act is that response times are very slow.

A: Well, it depends who you apply to. The State Department and the CIA are the two least responsive agencies. The Environmental Protection Agency or the Department of Health and Human Services, for example, are entirely different.

Q: Is it not to be expected that the UK Act will pan out similarly, with some departments are very responsive and others much less so?

A: Yes, I think that is likely to happen. But I hope things won’t as bad as the US, where you can measure some agencies’ response times in years. The fact we can appeal to the Information Commissioner, rather than the courts should make our system more responsive.

Q: The DPA has proved difficult. Are there likely equivalent pitfalls with the FOIA, for example, will public authorities get bogged down in the exemptions?

A: The DPA has been extremely difficult and that has been driven by several things. The first is that it’s a very complex piece of legislation and therefore very difficult to understand. Secondly, in the hands of the people who operate it, this complex legislation is reduced to a set of very simplistic assertions, some of which are wrong. Thirdly there’s no proper enforcement mechanism, because, although you have recourse to the Information Commissioner, in most cases he carries out a very low level enforcement procedure, which consists an assessment of whether, if what you’ve told him is correct, it is likely there has been a contravention of the Act.

What the Act provides for is an assessment of whether it is likely the Act has been complied with, it is not a determination of the complaint. On top of that you, as an individual, can’t go to the Information Tribunal, you have to go to the court if you want a binding decision. This means that unhelpful behaviour on the part of organisations is not subject to very good external checks. Those type of obstacles don’t exist under the FOIA, so it should be better than that, but the FOIA itself is very complicated. All the stuff about personal data, whether disclosure would breach the data protection principles and the other complexities – there are lots of very difficult areas there, where I think we’re going to see simplistic assumptions as well, because that’s what you get when you have complex legislation.

Q: Is there a danger that public authorities that may be reluctant to release information, or are simply incompetent, will refuse requests on the grounds of cost or time, because their records management systems are poor?

A: I think that’s quite likely to happen sometimes. I mean the obstacles to access are going to be the problems of finding information, whether authorities understand the legislation sufficiently to understand what their obligations are. The workload is another factor – whether they are swamped by the volume of requests, which we just can’t predict at the moment. None of that necessarily involves a reluctance to disclose the specific information, even without that factor there are going to be problems, but there are these administrative issues, which the Information Commissioner and the Department for Constitutional Affairs have been urging authorities to prepare for and overcome for the last three years.

Q: What about the designation of private bodies as ‘public authorities’ under the FOIA. What type of bodies would you like to see designated?

A: I’d like to see the utility companies brought in, also the rail companies, the PFI companies, some of the major contractors who do a lot of government business, housing associations. I think we will see the voluntary, non-statutory regulators like the Advertising Standards Association, the Press Complaints Commission and the Law Society, to the extent that they have regulatory functions.

Q: How much progress towards this is being made at the moment?

A: I think the idea is that the private bodies will come in a later wave, not January 2005, but perhaps for the following year. Of course it’s a rolling process, so different classes of bodies can be brought in at different times.

Q: But presumably there will be a lot of opposition from those bodies themselves. Which ones, in your view, are we most likely to see in the first wave?

A: I can’t judge that really. I mean I don’t think there is any interest in government in bringing in the privatised utilities. They took the decision several years ago not to go down that route. In terms of other private bodies, government has bitten the bullet for itself and it’s bringing in peripheral bodies for which the government’s pain threshold is not so great. I think where there is PFI and contracting out and so on, there is going to be a very strong case for bringing them in. I hope Government will see the sense of doing that in terms of reassuring the public about this process.

Q: In terms of the release of commercial information by public authorities, are you optimistic that the Information Commissioner will stand up to public authorities and demand it is not withheld on the grounds of commercial sensitivity, unless there is very good reason?

A: A lot of these arguments have been gone over in the past in other countries, so the learning curve for our Information Commissioner is not that steep. The position on contracts, for example, is pretty straightforward now and I’d be surprised to see much protection for information about contracts, which have been let. I don’t expect much information about the tenders to come out, but once the contracts have been let I don’t think there’s going to be much sympathy for public authorities that say, ‘We’re not going to say how much has been spent, or what standards of performance we expect, or what the track record of these contractors is.’ So I’m relatively optimistic about that area of information. But if a company says, ‘This is a trade secret,’ it’s quite a burden of work to put yourself in a position where you can say confidently that it isn’t. That’s potentially difficult for the Commissioner as well as public authorities.

Q: What about the Information Commissioner standing up to politicians over the release of politically damaging information. Are you optimistic that will happen?

A: I think one has to wait and see. There is no sign from either the UK Commissioner or the Scottish Information Commissioner that they are going to back off these things. In the UK and the Scottish Act there is a ministerial veto so ministers can overrule the Commissioner. How that interplay is going to work out we just can’t predict.

Q: But in the short term the acid test might be whether, say, the Attorney General’s advice on the legality of the Iraq war will be released. As far as I can tell, no one who is knowledgeable on these matters is particularly optimistic that it might be.

A: That’s a complicated case, because it involves a convention to do with law officers’ advice, where the norm is non-disclosure, but there are exceptions. It also involves a rather difficult technical question of whether by publishing a summary the Government has, in effect, waived its privilege on non-disclosure. The Ombudsman has just said that is a legal question, which she is not competent to determine, but the Information Commissioner is probably going to have to confront the question. Also here you have a gigantic clash on public interests: you have an overwhelming public interest in favour of disclosure for all the obvious reasons, but you’ll no doubt have a formidable public interest argument made by the Government against disclosure. The Information Commissioner is going to have to tackle this at an early stage I think.

Q: I think that’s all the questions I have for now. Many thanks.

A: My pleasure.

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