Keeping information free
The meeting on defending the Freedom of Information Act at the House of Commons on 16 April was one of the best London Freelance Branch has held: Branch Vice-Chair
Phil Sutcliffe later described it as "probably intellectually the most stirring Branch meeting I've ever been to" - and he's only missed two since 1979. Practical politics is set to follow, with a decent chance of stopping the government's attempt to hobble the Act. This is a nearly-complete report of the discussion.
Heather Brooke, Norman Baker and (speaking) Richard Shepherd at the House of Commons meeting on 16 April
Our meeting did not get off to an auspicious start. Police outside Parliament were directing Branch members to at least three different places, including sending a random selection of people to a locked filing cabinet in the unlit basement of a building on Alpha Centauri - sorry, that should read "to Portcullis House", the Parliamentary office building across Bridge Street. A better metaphor for the operation of a weak freedom of information régime could hardly be devised.
Jeremy Dear, NUJ General Secretary, opened by recalling when the union had made a Freedom of Information request for the minutes of the BBC governors' meetings about its "value for money" job cuts. On day of the deadline by which the law obliged the BBC to respond, they called in the evening to ask whether he was still at work. He was. At 9pm a taxi arrived with a two-foot heap of papers - all of which contained "David said" and blank pages down to "Chitra said", then more blank space.
Nevertheless, journalists, campaigners and MPs are among the biggest users of the Freedom of Information Act (FoIA) and would be the biggest losers from the government's plans to change the way it is applied. These are justified as cost savings: they are designed to save £11.8 million a year, or about 0.02 per cent of the cost of Trident replacement. And Vera Baird, a junior minister at the Department for Constitutional Affairs (DCA), had the audacity to suggest the changes would lead to better journalism because they would would force us to ask better questions.
Before New Labour were elected in 1997, Tony Blair trumpeted their plans for freedom of information FOIA as "a change that is absolutely fundamental to how we see politics developing over the next few years."
Even as the Bill was brought in, campaigners suggested the exceptions that were introduced would cripple it. That turned out not to have happen. Though massively watered-down, in its first year in operation it allowed the publication of hundreds of stories that would not otherwise have seem the light of day - from uncovering the true costs of Public Finance Initiatives to details of "Rendition" flights suspected of delivering those captured by US forces to torture centres to water charge - and countless local stories such as the pay enjoyed by officials of Hackney Council.
Under the Act as it stands, an authority can refuse a request if delivering documents would cost more than £600 if it is a government body - or more than £450 for other public authorities. These costs include locating, retrieving, and extracting documents.
(Officials' time is charged at £25 per hour. So Jeremy Dear rang PCS, the public and civil servants' union, and asked how many members were getting £25 per hour. They said no-one below the most senior levels would get that much.)
NUJ General Secretrary Jeremy Dear (standing) apparently preparing a stage-dive, but actaully speaking at the House of Commons meeting
The proposed changes add charges for time taken to read, think and consult - otherwise known as "staring out of the window time". And they allow authorities to aggregate the costs, not just of similar requests, but of all unrelated requests made by the same individual or organisation - and to refuse them all if the costs of all requests made within 60 days exceed the threshold. Imagine the impact of this on an organisation like the BBC, with 4000 journalists all having their FoIA requests lumped together.
And requests from freelances could be thrown in with those of any organisation we have worked for. That could be a restraint of trade on freelances.
The likely impact is, by the estimate of a study commissioned by the DCA, that 20,000 more requests will be rejected each year.
These proposed changes will particularly affect politically contentious matters.
It's OK by the government if a private individual asks for a single piece of information that is readily accessible. But if someone with the skills and paid time to analyse documents is asking about a minister making a mistake...
It wouldn't be hard for public authorities to engineer refusals. The more people who attended a meeting to discuss whether to grant a request, for example, the more likely its cost alone would be high enough to justify refusal.
The meeting doesn't actually have to take place. The authority has only to estimate that if they were to have a meeting and there were so many people there, it would cost so much.
A cynical person might suggest that this is a plan for the prevention of proper scrutiny of public authorities, rather than a move to save £11.8 million per year.
The group Public Concern At Work (www.pcaw.co.uk) calculates that the cost of implementing the proposed changes is about £12 million.
Already the protests from editors, journalists and news organisations - particularly those by the Campaign for Freedom of Information (www.cfoi.org.uk) and the petition led by the Press Gazette - have led to the government delaying its plans.
"It is vitally important", Jeremy Dear concluded, "that we use this opportunity to lobby against the proposals".
And once the current proposals are defeated there is a bigger battle - "we need to promote a new Freedom of Information regime - one that takes as its starting point not cost, but the public interest."
Heather Brooke, author of Your Right to Know and blogger at www.yrtk.org notes that last week two things had happened:
- In Washington DC the Senate Judicial Committee passed legislation - supported by both Democrats and Republicans - to strengthen the US FoIA. There have been incursions into the US public's right to know since 11 September 2001. This "looks like one of biggest changes since the Act was last revised" in 2002.
- Heather received an answer to a FoIA request from the DCA - which had earlier refused a request from Maurice Frankel of the Campaign for Freedom of Information asking what the study of the functioning of the FoIA had cost. Heather had asked for this cost, and that of the public consultation on the changes, and that of the second consultation on the principle that there should be changes. The response: "the information you requested was not recorded and is therefore not held by the Department."
Heather Brooke confessed that since she has published a book on using the FoIA, if the changes go through there will be no effective right to freedom of information in the UK "and that will be sad for me and for my publishers".
"If I were an MP, I'd be worried by the attack on the public's right to know," Heather said: "trust in Parliament is collapsing. The public must be welcomed back into parliament and into government."
But things are going the other way. Not only are there the planned changes to the Act itself. Former Conservative Whip David Mclean MP has introduced a Private Members' Bill excluding the Houses of Commons and Lords from the FoIA. [It was debated the following Friday - see below.]
"It is a fantasy," Heather said, "that you can have good government in secret. Secrecy benefits only two types of people: the incompetent and the corrupt."
It is easy to see how officials will find it easy to conclude that it's better to get rid of those pesky public and journalists. Many don't want any information to get out for fear that people might misinterpret the information and their reputation would be damaged. They may even labour under the delusion that it is their information. It isn't. It was paid for by the public.
The problem is that it was precisely this control-freakery that led to the collapse of confidence in the system - this feeling by officials that the public can't be trusted.
"With reporting budgets on local media being slashed, Heather observed, "there are no journalists to send to meetings - Councils and their committees for example. No-one has time to make FoIA requests. "I suspect some local politicians have breathed a sigh of relief," she said, "if they no longer have to answer FoIA requests."
But "be careful what you wish for," she warned - "an uninformed electorate is a very dangerous thing." The way to re-energise citizenship is to tap into activism and into people's wish to re-energise their communities. Freedom of Information is essential to that.
Norman Baker, LibDem MP for Lewes, took up the theme that FoI is "essential for a modern democratic society where the citizenship have rights and are not treated like children" - a society in which people are not fed information only when the authorities feel they want to feed us.
The Bill was indeed watered down. The process involved David Clark losing his job which included responsibility for it - "the first Minister to be sacked for implementing his own party's manifesto."
In Norman Baker's own constituency, the Evening Argus is constantly using FOA and thereby eradicating excesses in public life.
He had himself made an FoIA application for MPs' expenses. It had been bitterly resisted. When information finally came out, it showed that there are MPs driving 60,000 miles per year on constituency business. Are they driving all day, every day? Now the public can ask their MP: "why, when your neighbour goes by train, do you fly, with all the implications of that for the environment?"
"The government's proposals are not about improving the Act," Norman Baker declared, "but about destroying it. It's been hobbling along despite being watered down - so it has to be destroyed.
"This is not a question of the public interest, but of the government interest. If Mrs Miggins has a harmless request that affects nobody, she can have the information: but any troublemakers, like those in this room, can be refused.
"So draconian are the changes that if any request is in any way embarrass to the government, they provide an easy way to refuse it."
The next stage in fightback would be on Friday (20 April) when David Maclean's insidious Bill was coming up for debate. The government Whips have remained silent - unusually for a Private Member's Bill. In Norman Baker's view, the Whips were "colluding with David Maclean". But Norman has "tabled a large number of amendments to, ensure that the Maclean Bill will be given full scrutiny. It may be so fully scrutinised that it runs out of time." [It did: see Guardian report. Norman Baker, however, was, we hear, told off by the Speaker for using notes.]
Richard Shepherd, Conservative MP for Aldridge-Brownhil and veteran of the struggle for freedom of information, recalled a fantastic parliamentary speaker of the 18th century who, overwhelmed by the power of his predecessor's argument, stood up and said "ditto".
He was particularly grateful to Heather Brooke for bringing an 18th-century dimension to the discussion, through her reference to the US constitution. "From that great Declaration - 'We the people' - follows a long march of everyman in this country. It is through the diligence of ordinary citizens that this became a democracy. Another 18th-century man, often misrepresented as a conservative, wrote of "men and measures": the people must make a judgement on the politicians and on the programme. Without this, how do we form judgement? How do we exercise sovereignty? Everything this society constructs is constructed in our name, from government to the hived-off companies that now run so many things, is - or should be - conceived in the spirit of a belief in the people.
"A long time ago Winston Churchill said 'the people is sovereign' - though zealous editors keep incorrectly correcting him."
There was, Richard Shepherd observed, "a great man in this room and it's Maurice Frankel."He and James Cornford "slowly chipped away at the defences of a great imperial state's last cry that we should not know. They slowly brought forward individual Bills opening up information such as medical records, to attack the central secrecy around pertinent facts that will affect our lives.
And to use another 18th-century epigram, Shepherd quoted Alexander Pope: "how can we reason but from what we know?"
"We know a little about the war in Iraq," as Shepherd observed, "that was not known by our predecessors. We were entitled to this information. In this war it looked as though policy informed intelligence - if policy informs information, how can we judge it?"
The question on the proposals to change the Act cannot be whether they cost £12 million or whether the application of the Act costs £30 million or whatever. "It must be about people's right to know.
"To make and break governments we want to know and we need to know. An informed public is the axe to do the job. It needs to be informed, not by a crazed headline or by a press officer spinning you to hell in a handcart, but by facts.
"There is an alliance of us across this land that believes passionately that this is our right this and this is our entitlement and that one day we will achieve it."
Mark Fisher, Labour MP for Stoke-on-Trent Central and another long-standing campaigner for freedom of information, observed that "Whereas for you journalists the focus is on the role of parliament, this meeting so far has been too modest on the importance of freedom of the press and freedom of speech.
"MPs' job is to raise grievances and ask questions and the right to know is the foundation of a democracy.
"You have heard the background of the long fight it's been, over 20 years, to get to where we were about to be 10 years ago.
"We all owe thanks to Maurice Frankel. He held Richard's and Norman's and my hands through all the detail - through the US legislation and that in Commonwealth countries and eventually in the Republic of Ireland, and he described what heeded to be done here.
"Sadly many thought that after we'd heard from Neil Kinnock and then John Smith that they'd put their weight behind freedom of information, we'd won the battle and we were going to get this legislation. David Clark did a superb job in producing a policy and a White Paper that was state of the are. It was not watered down, it was destroyed. We got a mere shadow of the sort of Bill we should have had.
"But it has been a surprisingly effective shadow."
A government that really believed in freedom of information would have invested in training civil servants and in collecting information and in ensuring that information provided to citizens was in accessible forms and in ensuring that people understood what their rights were.
During the campaign on Mark's earlier Bill, he received much information from around the country on how "lives had been stunted by not having information - jobs and marriages and businesses had been destroyed, lives blighted and constrained by not having their own information, for example their work or health records.
"All this will get worse if ID cards are introduced, with 52 pieces of information on each, and no right to see it and correct it.
"There is the argument about the importance of freedom of information to democracy, so eloquently put by earlier speakers.
"And there is the human element - freedom of information empowers people - and it empowers government because it gives them credibility and assists them to make good decisions."
"Government have nothing to fear. Rather, they have plenty to fear if they are corrupt and inefficient. You may not believe it, but most people in the administration are not: they are trying to do a good job. If they only realised that freedom of information gives government credibility they'd likely give it more support."
Mark Fisher thanked participants for coming: "but let us not just congratulate ourselves."
"We can campaign on it during the next 2 to 3 months - let us make good use of this time. Get in touch with your MP. If they are not supporting freedom of information, ask why they are not writing to Faulkner. Why have they not demanded meetings with Faulkner? We have power as journalists - and have also power as articulate citizens.
"Do something over the next few weeks.
"At the moment apart from the MPs in this room, there aren't many who have freedom of information as a very high priority."
"What is the timetable?"
Maurice Frankel responded that the new, second consultation closes on 23 June then the government will probably give itself three months more to decide what to do.
It is a mistake, Mark Fisher said, to say "my MP already supports this". It is important to let them know they're not out there on their own. Those who are committed appreciate hearing this."
Opening the discussion, a Branch member asked: Who is responsible, apart from [Lord Chancellor] Faulkner?
The White paper was signed by the Prime Minister, Mark Fisher replied. "This is the end game for him - you may want to consider sending sympathetic letters suggesting that this is as good a contribution to his legacy as any."
Jeremy Dear mentioned that Baroness Ashton had said the changes would not hinder any reasonable request. "Either the Baroness is stupid, or she is lying. Since she must know, even if only from talking to her husband, the columnist Peter Kellner - that the changes will hinder requests, she must be lying."
Mark Fisher observed that the proposed restrictions on freedom of information are not about the quantity of information released: they are about the information that's embarrassing for the government - whether about the Iraq war or about hospital closures, this is a very small amount of the total data that could be requested, and it is this that will be restricted.
Norman Baker added that Baroness Ashton had told a Select Committee of MPs that staff are spending a huge amount of time finding files - it can be weeks and months before they get around to reading them. A member of the Select Committee responded tartly that there "seems to be some problem with record management".
Mike Holderness asked about procedures for opposing the changes. The procedure for objecting to the "negative resolution Statutory Instrument" that the government would use to introduce them is that an MP, in the jargon, "prays against" it. Could we see a mass prayer? Can we force it to a vote in the Commons?
Norman Baker responded that "When the government has dug its heels in" over a Statutory Instrument that it has tabled, "it's too late".
LFB member Alison Macleod (standing, right) recalls having to report under the censorship regime of World War Two
Phil Sutcliffe asked what can we do as a trade union? "It's worth spending a lot of time on for the next few months - it's essential."
Branch Chair Dave Rotchelle asked Heather Brooke to respond. She mentioned that at present she's doing an academic study on corruption - which involves making 25 requests to a single government department. Under the existing rules she's restricted in the number of requests she can make to the same department on the same subject. But she has three interns working with her. They make an application, then wait a while until the department has forgotten who they are before using the same name again.
Under the 2000 Act, public authorities have to provide advice and assistance on making your request. They should be coming back to say way the way a request is worded is too broad, not just refusing it.
The reason the government is stuck on the cost argument is that it's the only legitimate argument it has left. It has lost the moral and legitimiacy arguments - and it is important that it is politically vulnerable on this point. "The more the public lose trust in government, the more expensive it becomes to persuade the public that the policies it proposes are in our best interest."
To illustrate this problem of legitimacy: in 1997 there were 300 Public Relations officers in the Central Office of Information, at a cost of £111 million a year. The latest figure is that there are 3200 costing £322 million - and that doesn't count the 50-odd at the Home Office or those within any other ministry or department. All these are employed to tell us what the government wants us to know.
Compare this cost to the £35 million or so it costs to tell us what we actually want to know, and the latter seems quite cheap.
A member reported that the Office of Fair Trading had released documents to him, but threatened him with prosecution if published the material or gave it to anyone else, under Sections 241 and 242 of the Enterprise Act. (See the entry "An enterprising approach to secrecy" on the Your Right to Know blog.)
Mark Fisher responded that that can't be right. If the documents were actually covered by the Enterprise Act, the OFT would be liable to prosecution for releasing them at all.
Another member asked the MPs how much has FoIA made it easier for them to get information. Norman Baker replied that "we use Parliamentary Questions (PQs) as our main means of getting information out, not least because they're quick, whereas FoIA requests are slow."But Norman Lamb MP got details of invitations to the Prime Minister's country residence at Chequers, which MPs could never have got before. For Norman FoIA requests are an adjunct to PQs to use "on a long fuse". Richard Shepherd added that for the Opposition Front Bench FoIA requests had become an important way of assembling a case on policy proposals. "PQs have become a sport for junior ministers' officials. They compete to draft content-free answers.
"And FoIA requests get documents - whereas PQs get those officials' summaries, at best." At worst, they get that standard refusal to answer on the grounds of cost.
Jeremy Dear recalled that it was an FoIA request that finally uncovered how much had been spent prosecuting NUJ member Robin Ackroyd - see our report in February 2006. Members of the NUJ Parliamentary group had asked PQs and received no answers. How many hip replacements could the Merseycare NHS Trust have paid for instead?
Member Alison Macleod announced: "I think I'm the only person in this room who had their copy mucked about by censors during the Second World War. It's a ghastly experience - and it's murderous in its effect on the government." Less than six weeks before victory was declared in Europe, she had heard some women talking about how the UK must be losing the war. People thought the press and the government must be lying about everything. After all, this was at the time of this nearly last V2 missile. If the government weren't telling the truth about these - they were commonly referred to as "flying gas mains" after the euphemism "gas explosion" used by the censors to avoid reporting where they had landed - how could they be telling the truth about the war?
"We need," Alison declared to applause, "to ask unreasonable questions."
A member attending her first meeting asked whether freesheets are diluting the news and affecting our ability to ask good questions. Heather Brooke replied that from a purely capitalist point of view, the cost of getting legitimate information - as against celebrity press releases - was high. When the 2000 Act was passed, the editor of the Times asked for a proposal on setting up a specialist FoIA unit within the newspaper. A bare-bones proposal involving a handful of salaries was rejected by management as too expensive. Then we see Clive Goodman, as Royal Editor of the News of the World, hiring private detectives at a cost of hundreds of thousands of pounds. That cash is floating around - but managements choose not to spend it on legitimate reporting.
Jeremy Dear found this a really interesting question - but part of a much bigger debate, about resource-intensive journalism and another fight, one being addressed by the NUJ's Journalism Matters campaign .
Zoe Young reminded members that there is an international dimension with the Global Transparency Initiative campaigning for openness by institutions such as the International Monetary Fund, the European Bank for Reconstruction and Development and the World Bank - see www.ifitransparency.org. There could be strong links between these campaigns.
In conclusion Norman Baker said that there were two challenges - to defend the Act and then to campaign actively for an extension to it. Who was in a better position than journalists to place articles on both these matters?
Heather Brooke concurred that we should not be defensive, but proactive in campaigning to strengthen the law.
Jeremy Dear also agreed that while he has reservations about the Act it has been enormously useful and we must campaign against it being hobbled, right to to the end.
John McDonnell, Labour MP for Hayes & Harlington and Chair of the NUJ Parliamentary Group, assured us that the Group will do all it can... "What would be invaluable," he said, was "if Norman could draw up a statement for all the Labour leadership and deputy leadership candidates to sign." [John McDonnell was a prospective nominee for the leadership.] Or there could be a hustings meeting on the issue.
Mark Fisher found this a very good idea. The same question could, of course, be posed to Mr Cameron and to Mr Osborne, Leader of the Conservative Party and Shadow Chancellor of the Exchequer.
Chair Dave Rotchelle concluded by quoting what Tony Blair said at the Campaign for Freedom of Information's
annual Awards ceremony on 25 March 1996:
Our commitment to a Freedom of Information Act is clear, and I reaffirm it here tonight. We want to end the obsessive and unnecessary secrecy which surrounds government activity and make government information available to the public unless there are good reasons not to do so. So the presumption is that information should be, rather than should not be, released. In fact, we want to open up the quango state and the appointed bodies, which will of course exist under any government, but which should operate in a manner which exposes their actions to proper public scrutiny.
...There is so much disaffection from politics, so much disillusion with it, and one of the very clear and simple reasons is that we live in a modern and far better educated and far more open and far more assertive democracy and country - and it is good that people feel in that way. The irony is that the system of government is about fifty, sixty, seventy years behind the actual feelings and sentiments of the broad majority of people. A Freedom of Information Act is not just important in itself. It is part of bringing our politics up to date, of letting politics catch up with the aspirations of people and delivering not just more open government but more effective, more efficient, government for the future.