FOI Fest: What has 21 years of FOI changed?
An expert panel discuss the current situation with FOI in the UK, and how it has shaped power and public life over the last 21 years.
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Panelists:
– Jenna Corderoy, Investigative Reporter, Democracy for Sale
– Warren Seddon, Director of FOI and Transparency, Information Commissioner’s Office
– Maurice Frankel, Chief Executive, Campaign for Freedom of Information
– Rose Whiffen, Senior Research Officer, Transparency International UK
– Gavin Freeguard, State of the Future (moderator)
This was one of the sessions at FOI Fest. If you’d prefer to watch it as a video, head over to our YouTube channel.
Transcript
0:05 [Myf] This is a panel from FOI Fest on the subject of “What has 21 years of FOI changed?”.
0:14 [Gavin Freeguard] So first, we have Rose Whiffen, who is Senior Research Officer at Transparency International UK. We have Jenna Corderoy, who’s Investigative Reporter at Democracy For Sale, and we have Maurice Frankel, the chief executive of the Campaign for Freedom of Information UK.
0:31 So: what has 21 years of FOI changed? So my first question I’m going to put to Maurice, which is obviously, the Campaign for Freedom of Information was extremely influential in getting FOI passed in the first place. How has 20 years of FOI shifted power and public life in the UK?
0:51 [Maurice Frankel] Well, just to give you some taste of what things were like before FOI, this is a minister speaking about a request for a report.
1:03 “You cannot, obviously, have detailed reports made available to every outside organisation and everybody who wants to come along and look at them. No, I will not show you the report. I see no reason to show the BBC the report. You know the contents of the report because she’s told them. If you don’t believe me, that is tough luck.
1:24 So that was Ann Widdecombe, the then Social Security Minister, in 1991.
1:31 This was a response of a Chief Constable to a request for information: “I have to say, I have not the slightest intention of giving you any information about why I reached the decision I did. To sum up, I would please ask in future you direct your inquiries to me personally, but I can assure you you will certainly not receive any answers.”
1:52 That was the Chief Constable, not to a member of the public, but to the chairman of the Police Complaints authority. So those are extreme examples, but still examples of the culture that too many authorities, including central government, displayed in the past.
2:09 When we were running various private members Freedom of Information bills, in the period from when we were set up in 1984 before FOI was achieved and after one of them, the Home Office Minister said, “I had to deal yesterday with a bill to introduce a Freedom of Information Act. This would have meant that Saddam Hussein could turn up at the cabinet office on Thursday after the Cabinet meeting and demand to see the cabinet papers.”
2:41 Well, you know, none of us can turn up and demand, and none of the bills would have allowed that. There were obviously going to be, there were relevant exemptions, which did and still do, protect legitimate interests.
2:54 So what’s the change in culture? The first thing is, obviously we have an Act, but most important, we have a regulator of the Act, and so that, in itself, means that contraventions of the Act now face repercussions for authorities who don’t comply. There are still things are far from perfect, and there are still some authorities which seem to employ delaying tactics in dealing with requests: the consequences of delay are usually not severe for them at all.
3:35 It sometimes seems as if they don’t pay any attention to the terms of the request at the first stage, and then the internal review, which comes up rubber stamps the first inadequate review.
3:49 And it’s only when the Information Commissioner turns up on the scene that, in some cases, they actually look for the information that has been requested. And I mean, there’ve been cases of authorities refusing requests at the first stage, saying that information is not held, the internal review saying, “After a thorough investigation, we confirm that the information is not held.”
4:13 And once the case starts, the Commissioner discovers that the information is held and nobody’s looked for it until that point.
4:25 So I think what we need is authorities to feel that they will receive a lot of attention from the Information Commissioner when they do not make a good faith effort to comply with the act. And I think we have seen from the Commissioner’s office from since John Edwards took over very, very long overdue measures to start doing that, and in particular the use of information of enforcement notices to address authorities which have built up a large backlog and have done have not done anything, or not done enough to deal with the backlog.
5:04 We also are seeing now that the penalty for failure to comply with a decision of the Information Commissioner is action for contempt of court. We’ve recently seen in the last six months, two contempt of court actions which have resulted in a positive finding of contempt.
5:26 In one case against a police force and in another case against a county council – the county council had failed to comply for over three months with a decision notice which gave them a 35 date day limit for compliance. They had carried out a search which was incapable of finding large part of the requested information.
5:53 Somebody had asked for information which had led to a decision to install bollards in the road accessing her home, the search had omitted any reference to the word bollards, and the explanation was they were looking at the circumstances preceding the decision to install bollards. Therefore it wasn’t necessary to search for ‘bollards’.
6:14 Now, in the past, authorities were getting away with even failing to comply with Information Commissioner notices, and I think the system is now beginning to show that that is not a penalty free option for authorities. So we very much welcome the increased use of enforcement powers by the Commissioner.
6:38 It’s still not enough. It is still too easy for authorities not to comply promptly and not to treat their first response as they expect the data which they expected to get their response correct. And the problem here is that authorities who don’t get it right at first, at the first stage, get another opportunity to get it right at internal review, and those who don’t get it right at internal view get another opportunity to put it right when the Information Commissioner begins his investigation.
7:07 And at the end of the day, if the information is disclosed during the Information Commissioner’s investigation, an authority is not penalised in any way. It’s acknowledged in the decision notice, but they’re described as having complied with the Act, whereas, in fact, they have failed to comply with the Act, and they have belatedly made good the failure. And I think there should be more attention to that type of event and that that would help move things along in future.
7:36 [Gavin] Brilliant. Thank you very much indeed, Maurice. And if you could pass the mic to Jenna, who will come to next. Jenna, I think it’d be fair to describe to describe you as an FOI enthusiast when it comes to putting requests in. How do the realities of using FOI match the principles?
7:51 [Jenna Corderoy] This is going to be a little bit depressing, but bear with me. Yeah. So I’m an investigative reporter for Democracy For Sale, and we specialise in reporting politics, and we cover transparency issues, and the FOI Act is fundamental to our investigations, and our best work has been sparked by information that we have obtained under the Act and at Democracy For Sale, we also take FOI challenges to tribunal, and we also work with lawyers to access vital documents. So yeah, we are very enthusiastic about the Act.
8:24 So we’ve had the Act for 21 years now, but I think it needs a serious update, because things have changed over those years. The nature of government has changed, whether that’s from outsourcing public services to private companies to communicating via WhatsApp. There’s just been no meaningful reform, unfortunately.
8:46 And you know, we’ve seen government departments or government bodies, sorry, that ought to be covered by sorry, government bodies. Yeah, meant to be covered by the FOI Act. We had the £800 million government funded Advanced Research and Invention Agency which conducts high risk, high reward scientific research, but that’s not covered by the Act, and so we can’t scrutinise it properly.
9:08 But also feel that the government and governments across the decades don’t really celebrate the Act as it should, and I think they see it as burdensome. Leaders say that FOI furs up government, and we had a minister in 2021 that says the Act is a “malign piece of legislation,” which is not very helpful, but transparency is a good thing, and I just think this needs to be embraced a bit more.
9:37 And the Institute for Government put out a really good report that spoke to that, yes, FOI will, you know, generate stories that are going to be politically damaging, but exposing that type of wrongdoing that is vital for democracy and accountability as well. But yeah, let’s come to the realities.
9:55 So I’m sure that you know, everyone sitting here today has faced very lengthy delays over sending FOI requests. You look at the government’s FOI statistical bulletin for 2024 and across all monitored bodies, around three quarters of requests are responded to in time, down from 81% in 2023, and our particular government departments that are quite poor.
10:21 I know that in December, the ICO issued an enforcement notice for the Foreign and Commonwealth Office over poor timeliness. I just wish the ICO would make more of a noise when it reprimands government bodies. And yeah, when you get to the ICO, you could be waiting months for a decision. And I really sympathise with the ICO after hearing what Warren said earlier, you know, but I sent a complaint, I think, quite significant public interest in August last year, and a case officer still hasn’t been allocated to my complaint, so I’m waiting for a long time now and then, when you get to tribunal level, you’re looking at maybe a year or even more, and then you’re up against counsel – you know, government departments spend lots of money on counsel and lawyers to stop the disclosures and at Democracy For Sale, we found that last Conservative government, they spent close to a million pounds on lawyers for cases listed at information tribunal in 2023.
11:23 I had a case that was heard in 2024 concerning the VIP PPE lane, that controversial procurement channel that the government operated during covid and the Cabinet Office spent tens of thousands of pounds on that case to stop further details of what I was asking for to be released. So yeah, we do work with lawyers quite a bit to try to redress that imbalance.
11:45 But I think to conclude, FOI needs quite a lot of help for it to continue for the next 21 years.
11:54 [Gavin] Brilliant. Thanks. Jenna, if you could pass the mic to Rose. Rose, obviously, Transparency International has a wide ranging interest in transparency, anti-corruption. I know you’ve had a very quiet time of it in the UK recently, but has FOI succeeded in shifting culture inside government?
12:12 [Rose Whiffen] Thanks for the question. So as Gavin set out, I’m from Transparency International, UK, an anti corruption organisation. So I’m looking at this from a much broader perspective, and how FOI really fits into the wider anti corruption toolbox. And I would say in terms of how it has shifted culture, I would look at it in three dimensions.
12:40 So firstly, it shifted the risk calculation of wrongdoing. Secondly, it has shifted public expectation of transparency, and thirdly, it has it, I would argue, it began the momentum towards wider government transparency overall. So if I take each in turn, so starting with how it shifts the risk calculation to prevent wrongdoing.
13:14 So if I just dive into a bit of anti corruption, academia, bear with me. So there’s an academic called Robert Klitgaard, and he proposes that the way that we look at corruption is that it equals monopoly plus discretion minus accountability, and that’s how corruption prospers, or how we can address it.
13:40 So I would argue that Freedom of Information actually addresses each of those three dimensions, and in particular the accountability strand. So if I just give you a quick rundown of what those three things mean.
13:55 So monopoly is the control over goods or services of the decision making process, discretion is the authority to decide who receives a service and how much and accountability is the open oversight mechanism that hold officials responsible. So if you look at the monopoly element in government decision making and government behavior, we see that FOI introduces journalistic counter expertise and exposure of procurement anomalies.
14:32 And we’ve seen this sort of pattern detection in the covid 19 scandal and how so many of those contracts were revealed through FOI. And crucially, corruption prospers where there’s an information asymmetry, and this is where FOI starts to try and rebalance that information asymmetry.
14:54 And then if I take the next dimension, which is the discretion. So FOI changes the anticipated visibility of decision making, because officials know that their advice may be disclosed, their risk assessments may surface, and their communications may be scrutinised, so it can potentially reduce arbitrary decision making.
15:21 But obviously exemptions apply specifically, you know, section 35 a policy formulation and increased FOI. It can potentially mean that some of that policy making then goes into informal channels. So it’s not without its problems, but if we turn to the final element, so accountability, how does FOI increase accountability?
15:48 I would argue this is where it most strongly affects the calculation, because it holds decision makers to account by the fact, you know, it generates evidence for investigative journalism. It supports civil society campaigning. And I think here, the role of the Information Commissioner’s Office is really important, because that’s that additional enforcement mechanism when it comes to accountability.
16:18 So I would say, you know, it’s not without its challenges, notwithstanding a lot of the challenges which Jenna mentioned when it comes to exemptions and delays, but overall, I think that foi has shifted that risk calculation. It’s not eradicated secrecy, it’s not eradicated the influence of private interests on decision making, but it’s just shifted that risk calculation a bit.
16:46 I would also say, you know, it shifted public expectation making in the fact that we now see transparency as a principle and that the public are much more demanding of that transparency then my last point is how FOI has shifted culture is, I think that it was the beginning of an overall move to government transparency, because we now have procurement data, we have spend data.
17:16 And so those are my three dimensions where I think FOI has shifted the culture.
17:22 [Gavin] Brilliant. Thanks, Rose. Want to pass that down to Warren? We will go to questions from the audience shortly. But Warren, first of all, I just wanted to know if you had any reflections on any of that. And also, I will put you the most upvoted question online, which is from Mariana Della Santi: “Statistics show that the ICO is receiving as many data protection complaints as in 2021. Why is workload that was normal four years ago a crisis today?”
17:47 [Warren Seddon] Okay, I’ll come back to that. Just reflecting on the culture point, one thing I’m conscious it’s easy to do with FOI, and certainly is where a lot of my time is spent, is thinking about central government, actually, kind of research the ICO’s done in the past has shown that more than 10 million people have made an FOI request over the years.
18:08 That is a fantastic success in a world where we’re not particularly great at citizenship, education in lots of ways, and we don’t actually tell people what their rights are. The fact that that many people have used FOI, and that the vast majority of that is to their local government, to their school, to their hospital, whatever it might be to find out something that is really important and matters to them, I think it’s a great success.
18:31 And going back to that point that we don’t necessarily celebrate it as much as we should, I think that’s a really good example of why we should celebrate it. And the other thing on culture that I think is interesting is, if you go back to kind of March 2020, which I know a lot of us don’t like to, when FOI had been in for 15 years, and think about some of the risks that people talked about when it came in, when I was working in central government, in that it was going to impinge debate, that people would stop writing things down, that free and frank discussion would fall by the wayside.
19:07 And if we look at the covid inquiry, all the evidence that that’s been looking at, it doesn’t feel like we live in a system where people feel particularly restrained in what they can in what they can say and write down.
19:21 So actually, some of those risks that were around FOI when it came in haven’t really transpired, and we’ve got a lot of the benefits without a lot of the risks that people were concerned about and that certain people were quoted at the start talking about.
19:36 I don’t think the evidence actually backs that up. So I think we really should celebrate the success of FOI, because I think it has had a massive impact. And no, the system’s not perfect, but it’s a really good piece of law that actually works well a lot of the time. Sometimes it doesn’t.
19:51 On the volumes points, am I allowed to use the point that I’m the Director of FOI here, and I must admit, I don’t know the history of EP complaints off the top of my head. So that sounds to me like, er, I don’t know if that data is exactly right, right, I must admit and apologies for that.
20:10 What I can say is that I do know that that team at the moment is obviously kind of been set up staff to deal with what we anticipated coming in in a similar way that we were and that we know we were expecting to struggle this year. We certainly weren’t expecting to struggle anywhere near the way that we have with a rate of complaints that actually is lower than our colleagues in data protection.
20:34 So the pressure on that side of the team is really, really significant. I know they’re working as hard as they can to to get through it. But yes, apologies, I can’t pull the data from the top of my head on that one to know whether like for like is quite the same.
20:48 Thank you. And I’ll take one quick round of questions. I’m going to do a couple from online, and then I will send Alex running to the back.
20:55 So we’ve got one from Kevin Keith, the chair of the UK Open Government Network on FOI: “We speak lots about leaking pipes and not enough about preventing cholera. How do we reconnect the power of FOI to the public and therefore value to politicians?” And I saw one hand at the back, so I’m going to send Alex to George.
21:16 So I would say is, I guess, going back to the comment I made in my initial remarks, what we see across government, but also the public sector as a whole, actually, in FOI teams, is people who are working really hard to get through it, and actually are quite often champions for transparency. Really passionate about it; it is, you know, it’s a calling, FOI.
21:41 So I’d always have that at the back of your mind when, when dealing with the teams making requests, I think what you then you see across, you know, the tens of thousands of public bodies, including central government, is in that cultural point is then different appetites and attitudes towards transparency, towards what goes out.
22:02 And I think that applies to central government as it is to local government, as it does to the NHS. The kind of culture is basically different organisation by organisation. The trick for us as a regulator is to try and understand that and think about what the tools are that we have to try and change that culture where we think that’s necessary, and we do things like the commissioner writing to public sector leaders as part of that, we think about the practice recommendations and enforcement notices that we do to make sure that it’s on the agenda at more senior levels.
22:33 And so we do try and and have that impact where we can, and that includes having discussions with senior officials where we think. We always think that’s necessary as well.
22:42 [Rose] I’m happy to take Kevin’s question. In particular, value for politicians. So you’re going to realise that I’ve been doing a lot of investigation of the Epstein/Mandelson emails. So just to give some context of of the scandal in particular, there was an exchange of emails whereby Mandelson, who was a minister at the time, sent an email to Epstein, about bankers’ bonuses.
23:12 So this was a policy that was being introduced in reaction to the 2008 financial crisis. So arguably, you know, it was sort of in the public interest to introduce however it ran contrary to the interests of Epstein’s banking associates at JP Morgan, etc, etc. So this is very unusual that we see a minister liaising with a foreign private businessman in potentially the interests of a private business, JP Morgan.
23:44 Now, interestingly, at the time, Mandelson then spoke to Alistair Darling, who was the chancellor at the time, and internally lobbied Alistair Darling to curtail this bankers’ bonus policy. Now, had there been more transparency as the norm, had there been more proactive transparency in the circumstance, then Alistair Darling would have known that that internal lobbying where that was coming from, and then he would have had more informed decision making on his part.
24:24 This is just one example, but I can see that when there’s more transparency, the politicians themselves can seem have a better picture of the different opinions that they’re receiving, and thus they can make a better informed decision as well.
24:39 [Maurice] I’m not responding to this this point, but what I do want to say is I want to endorse Jenna’s point about how valuable it would be for the Information Commissioner’s enforcement action to be very visible, because actually, the greatest incentive for compliance is the threat of public shame from intervention by the Commissioner or the courts here, and particularly in the early days, the Commission’s office had a policy of being very gentle with public authorities, but the FOI officers who are keen on FOI didn’t appreciate that, because it meant there was no threat that they could put to the people above them in the authority that resisting disclosure on poor grounds would end badly for them.
25:29 And actually they were hoping for a more robust policy, a more publicised, robust policy from the ICO here, I think we’ve moving towards that. But I think the publicity for that, and to maximise the publicity for that is really going to be a big help in changing attitudes in public and in strengthening the arm of the FOI officers who are trying to improve the performance of their own authority.
25:52 [Jenna] Thank you. Yeah, I just want to echo Maurice’s really great point. Yes, I’d love to see the ICO be bit more visible. I mean, I think a few years ago, I remember the ICO reprimanded quite a few government bodies, and I know it issued a press release, and they got a huge amount of pickup. I mean, I even covered the the enforcement notices story as well.
26:11 So I’d love to see more of that. But also, I think going back to the tone of FOI, and I think it really is down to the central government, the top central government departments to say, you know, FOI is a good thing. I think so. Before coming into power, I know that Keir Starmer was quite enthusiastic about FOI. There was even a mention in an essay that he wrote.
26:33 But I think now coming into power, I’ve heard nothing. I don’t know where everyone else has heard anything, but it just feels a lack of momentum, a lack of enthusiasm. I mean, again, correct me if I’m wrong, but I didn’t see any celebrations of the Act when it reached its 25th or 20th, whatever you feel, anniversary last year. So yeah, I do think the onus is now on central government departments.
26:58 [Gavin] I’m going to ask one final question to the panel, one line answers only, please. If you could change one thing about the FOI act for the next 21 years, what would it be?
27:10 [Warren] Get rid of the first tier tribunal.
27:12 [Rose] For me, it would be reducing the use of the section 35 policy exemption.
27:19 [Jenna] For me, it’s extending the Act to cover…sorry…
27:24 [Maurice] For me, it would be not implementing Warren’s suggestion.
27:28 [Gavin] Well, Warren, Rose, Jenna and Maurice, thank you very much indeed.
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