Denham: We Must Protect FOI For Fair and Free Journalism
Former Information Commissioner Elizabeth Denham answered questions last week from the Public Administration and Constitutional Affairs Committee on transparency concerns raised against a Cabinet Office body which coordinates Freedom of Information responses across Government.
Ms Denham stressed the vital importance of journalists being able to efficiently use the FOI system: “Through journalists the public can understand and get to know why certain decisions are being made on their behalf.
“Journalism and public interest researchers are very important requesters. They do have a commercial interest but protecting the Act for fair and free journalism is an important element.”
In its own response to the inquiry, the NMA said democracy would be impeded if FOI requests from journalists were being vetted by the Cabinet Office.
Ms Denham continued: “I really think it is time for Parliament to think about whether FOI is fit for purpose for a digital age.” Ms. Denham called the Freedom of Information Act a “solid statutory pillar for the engagement of citizens, it is not a bureaucratic tick box.”
When asked if the current FOI system was fit for purpose, Ms Denham said: “I think that the delivery of Government services involves so much of the private sector. The scope of the Act doesn’t adequately cover private sector businesses that are delivering public services.
“Up to 30% of public services are delivered under private sector contracts, but those bodies are not subject to the law.
“I was concerned that ARIA, the new science and technology body, is going to be excluded from the FOI Act. It is a growing concern that when new public bodies are created, they are not subjected to the same transparency requirements as other public bodies.”
Denham also highlighted concerns over the possibility of a separate regime for the new environmental agency, which will not be subject to EIR or FOI.
Ms Denham continued: “I think Parliament could do more, they could ask more of Government departments about their Freedom of Information records: records of their timeliness, their response rate, their percentage of disclosure, and their proactive disclosure of information that is in the public interest.”
The Committee asked Ms Denham if Government’s compliance with FOI laws had improved or deteriorated: “There has been a huge increase in access to information requests that have come in to the ICO to adjudicate. With complex or politically sensitive requests, timeliness and general openness has deteriorated.
“When ministers are advocating for public bodies to be exempted from the Act – there is not a respectful tone about the importance of freedom of information. It is a part of our democracy, not just a tool for researchers or journalists, but also a tool for citizens to obtain information.”
The Committee also questioned Ms Denham on the role of the Clearing House, Ms. Denham said: “I understand through our case work and from journalists that they believe the Clearing House is a discriminatory process that adds delay to FOI requests. The problem is that we don’t know. We don’t have the evidence.
“On the back of the Jenna Corderoy investigation, we looked at the issues, the allegations and we proposed to Cabinet Office to carry out an audit which would examine their processing of an FOI request, to allow us to understand the criteria involved and how Government departments refer requests to the Clearing House.
“The Cabinet Office declined our offer. We don’t have compulsory audit powers. They missed an opportunity there to be able to provide evidence to ease concerns, which has only increased suspicion.”
Ms. Denham also highlighted the importance of the applicant-blind process: “Nothing rules out coordination or good administration but whether the Clearing House is reflecting the spirit of the law. No matter who you are or where you’re from, your request is treated the same as any other and receives no extra layer of review that adds delay to the process.
“Whether you’re an ordinary citizen, businessperson, academic or journalist – your request should be processed fairly and equally. If you are identified, and if there is a different way of dealing with your request, e.g. less timeliness, then that is not an applicant blind process.
“There are significant issues with timeliness and information delayed is information denied.”
Ms. Denham underlined that this was particularly an issue for journalists when carrying out investigations: “Getting the information six months, or a year later, means that the law is not fit for purpose. There are stories in the press every week about FOI requests – some have helped to reveal the Windrush scandal, stop and search and police procedurals. There is so much we have learned from FOI.”
Ms. Denham also stressed the importance of ministers valuing transparency: “They should encourage the disclosure of information, and should espouse the values of freedom of information, as well as the preservation of documents and records.
“It is so important that a minister and senior officials walk the walk when it comes to transparency.”
Ms. Denham outlined some necessary measures which would help to resolve issues within the FOI system: to provide the ICO with compulsory audit powers, to set statutory time limits for internal reviews and to review the scope of the Act to ensure new public bodies are subject to FOI laws.
“When a private sector business has a contract where they are standing in the shoes of a public body, they should be subject to the Act.
“This country needs modernisation of the Act across the Board, we must take a deeper dive into legislation across the world, and find where the best practise lies. The UK law is slipping behind.”