The House of Commons Public Administration and Constitutional Affairs Committee is currently conducting an inquiry into the Cabinet Office’s Clearing House function. We have submitted written evidence to the Committee building on our recent report “Reforming Freedom of Information: Improvements to strengthen access to information in the UK”. We outline how tactics used by the Cabinet Office fit into a wider pattern of evasion, and how Scottish FOI legislation provides a model for how these issues can be addressed.
Our full submission can be read online, or downloaded as a PDF. Written evidence from other organisations and individuals can be found on the Parliament website. A summary of our evidence and recommendations is below.
- The Clearing House, and/or any other FOI coordinating body, should be compelled to operate in a fully transparent manner, publishing its procedures, decisions and appeals data.
- The Freedom of Information Act (FOIA) should be revised to improve clarity of process and to close procedural loopholes that currently frustrate disclosure and effective regulation.
- FOIA should be revised to include a legal obligation upon public authorities and the regulator to collect and publish data on the administration of the Act.
- The regulation of the FOIA should be split from the current Information Commissioner’s Office, where its budget and importance is dwarfed by data protection work, and constituted as an individual entity focused solely on FOI.
- The oversight of the FOI regulator should be migrated from its current Ministerial portfolio, where it is vulnerable to political pressure and influence, and should instead become accountable to Parliament.
Q1: The Cabinet Office’s compliance with and implementation of the Freedom of Information Act 2000
- Central Government statistics
- ICO decision notices
- Procedural complaints
- Relevance to Clearing House
Q2: Role and operation of Clearing House
- History and available information about the Clearing House
- Addressing the core problem
- Directly addressing delay and obstruction tactics
- In official statistics, the Cabinet Office stands out as having a lower than average percentage of requests for information fully granted, and a higher percentage of requests that were not returned within the 20 day statutory limit.
- The Cabinet Office has received a high number of decision notices from the ICO, with over 50% of complaints upheld or partially upheld in all but four years (2014-2017).
- The highest number of complaints are upheld in procedural areas, which, taken in combination with wider patterns and specific decisions, are reflective of tactics used to delay or obstruct the release of information. For instance, administrative silence/stonewalling can be a highly effective tactic to delay the long term release of information.
- While a coordinating function can be legitimate, that the Clearing House is based in the Cabinet Office is a cause for concern. There is a key question of whether the Clearing House reduces the volume or quality of information disclosures through permissible or impermissible means.
- Evidence from the information tribunal concerning the release of information related to the Clearing House should be seen as informative as to the general attitude towards transparency: by default withholding everything, and using every tool to delay scrutiny of this decision.
- FOI requests should be ‘applicant’ and ‘purpose’ blind. The storage of unnecessary information about the applicant in the Clearing House system is an information hazard that raises reasonable suspicions that requests are not being treated as legally required.
- However, fixing the underlying problem requires more than changes in which information is gathered and stored. Impermissible methods (such as higher scrutiny for journalists) can be reframed as higher scrutiny for particular kinds of requests (that are likely to be requested by journalists). The root problem requires more effective ways of ensuring the correct information is made available promptly.
- In general, concerns about coordinating bodies undermining the functioning of the Act should be directed at closing loopholes they (and any public authority) can use to delay or obstruct the release of information.
- We recommend mirroring the approach used in Scottish Freedom of Information legislation to provide stronger clarity around time scales and administrative silence that can prevent delaying tactics.
- More generally, the system of regulation could be improved by moving supervision and funding of the Information Commissioner’s FOI functions from government ministerial oversight (where there is clear capacity to limit resources for FOI enforcement) to Parliament.
Header image: Photo by Maarten van den Heuvel on Unsplash