Campaign spotlight: The Campaign for Freedom of Information
Q: How long has The Campaign for Freedom of Information [CFI] been running, and why was it established?.
A: The campaign was launched in 1984, formed by a coalition of organisations that were concerned about excessive official secrecy. Des Wilson, who set the campaign up, had been involved with CLEAR (Campaign for Lead Free Petrol), and also with Friends of the Earth. He'd seen the effects of secrecy first hand. In March 1981 the Secretary of State at the Department of Environment announced a decision that they wouldn't remove lead from petrol, instead reducing it to a level of 0.15 grams per litre by 1985. The CLEAR campaign was set up in January 1982 to try and reverse that decision. But unbeknown to anybody, as far back as March 1981 the Chief Medical Officer had written to permanent secretaries in Whitehall warning them that lead in petrol was a health hazard, that it affected hundreds of thousands of children, and he recommended decisive action was taken. So if we'd had a Freedom of Information [FOI] act, the advice of the chief medical officer would have been made public. Further, a Royal Commission on environmental pollution also looked into the lead question, and all the industries submitted evidence to that. The UK Petroleum Industry Association refused to share its evidence. When it was asked to provide the economic background to their claims that lead free petrol would cost an extra 3-5p a gallon, they refused. Then talks between the government and industry proceeded in secret. That's the situation as it was at the time. In 1983, Des Wilson asked other organisations that he thought might be interested to come together for a meeting, to see if they were frustrated by secrecy, and he found there was a lot of support for the issue, and it was agreed to set up the Campaign for Freedom of Information.
From that point onwards, what were the CFI's main aims and objectives? Did they change over time?.
Obviously not for a long time, because it was a long campaign to get the FOI Act. Our main objective when we were set up was to get Freedom of Information legislation in the UK. We also sought to appeal the 1989 Official Secrets Act, and replace it with a narrower measure which only applied where disclosure would cause real harm, and with a public interest defence. Since the Act has come into force, our attention has focused more on monitoring how the FOI act and other access to information laws are working in practice,ensuring they are implemented effectively, and trying to strengthen them where possible. I mean, there are ways in which we would like the actual legislation itself to be improved, but we've always been warned that if you try and amend the primary legislation it is also opening the door to people who have more malign intentions, and they will try and weaken it. And so our main work has involved providing advice to the public on how to exercise their rights, particularly how to challenge refusals or go through the appeals process. Also, encouraging good practice to authorities responding to requests. We do quite a lot of training for requesters and public authorities on the decisions from the Information Commissioner [IC] and the Information Tribunal [IT].
There are multiple exemptions to the FOI Act. How redundant do you think they make the legislation overall?.
There are lots of exemptions in the act, and when the legislation was going through parliament we were heavily involved in drafting amendments to try and improve the legislation and some of its worst elements were improved as a result. But, yeah, there are a lot of exemptions still in the act, and some of them are very broad, but I certainly don't think they make it redundant. Some of the exemptions contain a harm test so they only apply if disclosure of the information would cause prejudice to a particular interest, so for example commercial interest, international relations, defence. The burden is on the authority to justify withholding the information.
And then about two thirds of the act's exemptions are subject to a public interest test. And this is really the most powerful part of the legislation because where the public interest test applies, in order to withhold information the public authority has to show that the public interest in withholding it, outweighs the public interest in disclosure. So in those situations, even exempt information has to be disclosed on public interest grounds. So that is the key feature of the act, that is what gives it its power.
As far as I'm aware 'public interest' is not defined in any one statement anywhere in the act? How is it conceived of?.
It is not defined at all in the legislation. It is generally considered to be what is in the interests of the public. There is guidance from the Information Commissioner on the public interest test. So, for example, some of the general arguments that he will consider in favour of disclosure: promoting transparency, accountability, public understanding of government decision making. And more specific reasons in favour of disclosure of the particular information may involve spending of public money, or there may be some risk to public health or safety or the environment which are strong public interest reasons in favour of disclosure. What can't be taken into consideration is whether it would be embarrassing to officials. Public authorities quite often say it would be 'misleading' for the information to be disclosed. Those are irrelevant factors. So there is nothing magic about it, it's what you would expect, really.
From your experience of how the legislation has been practically applied, would you say that when requests are seen as not in the public interest, this actually means that private interests are being protected – specifically corporate interests?.
In cases where it comes down to where the Information Commissioner or the Tribunal are considering a balance of public interest, in order to withhold the information the public interest in withholding it has to be greater than the public interest in favour of disclosing it. If the two are equal, the information has to be disclosed. If there is very little public interest in favour of withholding, and very little in favour of disclosing it, again it has to be disclosed. So the presumption is in favour of disclosure. So if it is found that the balance favours withholding the information, I think it means that there is either very little public interest in favour of disclosing the information, or there are strong reasons for protecting the exemption.
The most relevant exemption to corporate interests are where disclosure would prejudice the commercial interests of the person, that exemption has got a prejudice test. The way that is interpreted means that the prejudice to the commercial interest has to be 'real', 'actual', or of 'substance' and there has to be a real or significant likelihood of it occurring. It can't just be remote. And so, it is quite a high threshold to be met. And then, if that threshold is met in order for it to be withheld, the public interest in favour of withholding it has to be stronger than the public interest in disclosing it. So, there is a high threshold to be met, and the burden is on the authority to show that it has been met, and then it is independently ruled on by the Commissioner and the Tribunal. So, if the exemption is upheld, then we have to assume that there are good grounds for that, that significant prejudice would entail and that it outweighs the public interest in favour of disclosure.
Do you have examples of it going either way?
There are two exemptions which are most relevant to corporate interests. There is the exemption for where disclosure would prejudice commercial interests, and then there is section 41, exemption for information that has been obtained from another person and whose disclosure would constitute an actual breach of confidence.
Quite early on after the act came into force, I think it was in 2006, the IC issued a really significant decision in this area – it was a request by the Belfast Telegraph for the financial agreement between Derry City Council and Ryanair, relating to Ryanair flying out of Derry City Airport, which the council owned. There were concerns about whether this agreement breached EU competition rules, and whether the airline had big incentives given to it to keep it flying out of the airport. And so, the council refused to disclose this information citing both the exemptions of commercial interests and information supplied in confidence. I think the information Commissioner dismissed the commercial interests exemption saying that the harm threshold wasn't reached, but the most significant part of the ruling was on the information supplied in confidence because the Commissioner ruled that in the process of negotiating an agreement – or a contract in this case – information wasn't supplied by one person to another, and so it couldn't be withheld under the exemption for information supplied by one person to another in confidence. That decision was upheld by the Tribunal, which said that the implications of its conclusion were that “the whole of any contract with a public authority, may be available to the public, no matter how confidential the content or how clearly expressed the confidentiality provisions”. And in this case the agreement was stamped 'confidential'. And so that was a really significant victory early on. And it has opened up the whole area of contracts.
And since then, has there been a greater disclosure of contracts, with people being able to cite this?
Yes. That decision has been cited in lots of decisions since. It is very difficult now for public authorities to withhold contracts, once they have been signed.
Looking at these two exemptions, commercial interest in particular, how did they come about? Was it within the initial stages?
Yeah, it was always in the draft bill, and the legislation that was introduced to parliament. All FOI laws have protection in these kinds of areas, so there is nothing unusual about it.
I think what's quite interesting, is the provision in the FOI act for it to be extended. So at the moment it only applies to public authorities, but under section 5 of the act, it can be extended to private bodies with public functions, or bodies providing services under a contract with a public authority, services which are a function of the authority. The Ministry of Justice recently announced that there would be an extension of the act to some additional bodies, mainly regulatory and representative bodies. But they wouldn't extend it to Network Rail or Northern Rock, which the Conservatives had made commitments, either in their manifesto or pre-election, to bring under FOI, and they also wouldn't extend it to contractors.
The same process has been going on in Scotland. Scotland has it's own FOI Act. The Scottish government has been consulting on whether to use the same power to extend their legislation, and had been proposing to bring in the private prisons, Glasgow Housing Association, and some trusts set up by local authorities to run leisure and cultural activities. But it just announced, on the 30th January, that they weren't going to go ahead with it. A news headline from then read: 'Ministers backtrack on FOI under pressure from business'.
Do we know what the nature of that pressure from business was?.
The CBI Scotland lobbied strongly against the extension. Their statement read that: “it warmly welcomed the government's change of heart”. And so that's an area of contention at the moment.
I read somewhere that at the beginning stages of the FOI acts introduction, the relatively newly privatised utilities companies would be covered by the FOI act. Is that right, and do you know why they were excluded?.
This has been going for a long time this issue. There was a consultation on extending the act under the Labour government following Gordon Brown's speech on liberty in 2007. Their consultation document was quite encouraging because it referred to private prisons and the utilities, but then eventually after 18 months all they came up with was four additional bodies: academy schools, ACPO (which actually nominated itself for coverage), the financial ombudsman service, and UCAS. So they didn't go for the utilities or contractors or even private prisons, which the consultation paper had strongly indicated. It was extremely disappointing.
The Environmental Information Regulations [EIR] have slightly wider scope, because they apply to all the public authorities which are subject to the FOI act, and then some additional bodies including some private ones – such as environmental contractors. But there has been a case going through the appeals process involving water companies, where the tribunal ruled that they weren't subject to the EIRs.
Do you know on what grounds?.
It's in the definition of who is covered by the regulations. It is bodies with functions of public administration, and it was found that water companies didn't have functions of public administration. That's one of the limbs, or they can be covered if they are under the control of a public authority, and so it was ruled that they didn't meet either of those definitions. And that kind of follows an earlier decision, in which the tribunal ruled that Network Rail, for similar reasons, weren't subject to the EIRs which surprised everybody. The tribunal concluded with something along the lines of 'it [the decision] was unsatisfactory, but it had to apply the legal tests'. So all this is going on all the time.
With the current cuts in public spending, there is going to be an increase in the number of private contracts and the number of private companies stepping in to take over the public services and things formerly supplied by public bodies. Do you think there is going to be a corresponding change in the FOI and EIR Acts, or do you think it is going to become increasingly difficult to get information from these bodies?
That is a real concern, and I know that is something we will be looking very closely at, and trying to ensure doesn't happen. Particularly with the plans for NHS reform and for services to be increasingly provided by private contractors. Potentially, you would be able to obtain information from the NHS authorities but not from corresponding contractors who are providing services, which would be a concerning loss of transparency.
You mentioned that academy schools, for example, were within that initial consultation. So are they now covered?.
They are now covered, they were brought in by the coalition government when they passed the academies bill. We suggested that, rather than wait for the section 5 order to extend the act, or bring them in at a later date, it should be in the academies bill itself, so that as they are created they are brought under. Lord Lucas drafted an amendment to the academies bill in the Lords, then the government accepted it and later came back with their own one.
I'm quite interested in why there are such big differences between the EIR and FOI, in terms of allowing for more information to be released, and also particularly these clauses about private bodies operating with public functions..
The EIRs implement an EU directive on public access to environmental information. I think very early on, the original intention might have been to implement the regulations within the FOI act, but in certain areas the FOI act wasn't strong enough, and so they had to introduce a parallel set of regulations, and so that's why we have the two regimes operating alongside.
They [the EIR] do provide a stronger right of access in several areas, like we've said they apply to a wider range of bodies, including some private bodies. There are shorter response times [from public authorities] in the EIR. So under the FOI act, authorities have to respond within 20 working days, but they can extend that time if they are considering whether to disclose exempt information on public interest grounds, which quite often they are – the public interest test applies to roughly two thirds of the exemptions. If they are considering the public interest then they can extend that for a 'reasonable period' – which isn't defined in the legislation. The IC has issued guidance, saying bodies should only exceed the normal 20 day time frame in exceptionally complex cases, but in reality that quite often happens. The fact that it is not defined in the legislation, means that it is open to abuse. We would like the time limits to be strengthened in the FOI Act.
There is also in the EIR a statutory time limit for authorities carrying out internal reviews. So if you are unhappy with the response you get to a request from a public authority, before you can complain to the IC, you normally have to go back to the authority itself, to ask it to review it's decision. There is no time limit for carrying out an internal review in the FOI Act. Again, there is guidance from the IC, but you quite often see authorities taking several months to carry out an internal review, with the requester struck in limbo before they can go to the Commissioner. Whereas in the EIR, there is a 40 day time limit for internal reviews.
There are also fewer exemptions in the EIRs (they are referred to as 'exceptions' in the legislation), and they are all subject to a public interest test. Also, access under the EIR trumps existing statutory prohibitions on disclosure [such as existing secrecy legislation] whilst the FOI act doesn't override those. This is because the EIR implement EU legislation. There are still a lot of other secrecy laws. And wWe would say that they should be subject to the exemptions in the FOI act already, and that information should be dealt with under those instead of having these other laws which prohibit disclosure.
But another major advantage if your request is dealt with under the EIR, is that if it is information relating to emissions, it can't be withheld under the exemptions for industrial, commercial confidentiality, the interests of the person volunteering the information, confidentiality of proceedings protected by law, or the protection of the environment. If is it emissions data, these four exemptions simply do not apply. That is a really powerful aspect of those regulations and there are advantages of going down that route.
Do you have examples of where people have successfully altered a corporations behaviour, or activities, by using any of these avenues?.
Cornerhouse, under FOI, obtained a letter written by the Export Credit Guarantee [ECG] department to Bermuda registered Sakhalin Energy Company, the letter confirmed that ECG approved conditional financial support of $650 million of contracts to two British subcontractors. There was a judicial review, and I think in the end the company withdrew its application for ECG support. So that possibly might be an example.
There's certainly been cases where FOI has changed behaviour of public authorities and their relations to corporations. Very early on, the Campaign Against the Arms Trade, which made quite effective use of the act, used it to reveal the extent of university investments in arms companies, and that eventually led to some of the universities disinvesting, so that was quite a strong example.
And I guess it is also led to quite strong enacted campaigns from students and from others around the universities, putting pressure on them to disinvest. So it's the way this information can generate activity..
Yeah, it means as a campaigner you are much more informed about what is really going on.
Another significant case is where Friends of the Earth requested the minutes of meetings of the then Department of Trade and Industry [now BIS] and the CBI, and the IT ruled that virtually all of the minutes had to be disclosed, not all, but virtually all of them. There is quite a good quote from the tribunal about the public interest test: “there was a strong public interest in understanding how lobbyists, particularly those given privileged access are attempting to influence the government, and there is a strong public interest in ensuring that there is not, and there is not seen to be, any impropriety.” So there are some really good cases, which have helped open up various areas.
I'd like to ask a question about the impression that the legislation gives about government transparency and access to information. It is often very difficult to navigate and you do come up against lots of exemptions. How much do you think that the impression of government transparency and access to information is misused by public authorities. That they proclaim a lot about the fact that they adhere to the FOI act, and this is how you can submit a request, etc, but actually it hides the fact that it is still very un-transparent.
I don't think that is the case, because if it was you wouldn't hear people complaining about it like Tony Blair in his memoirs. If it was ineffectual and people didn't find it difficult at times, or forced to reveal information that they didn't want to, then they wouldn't, you wouldn't hear them complaining, so I don't think that.. I think there are problems about how it works in practice, for example the delays are undoubtedly a problem, sometimes you can experience very lengthy delays in receiving the information, particularly if you have to go through the appeals process. Authorities can sometimes abuse, use that to their advantage. But yeah, I don't think it just gives an impression of openness, when I think there have been examples of really significant information having been released where an authority has not wanted to release it, so that is really the test of an FOI law.
I guess a test of the people who work to make it as open as possible as well? Which is the main thing, I guess, it is not going to be open in an of itself, but only if people keep pushing it.
It always needs to be defended. As we've already seen, there's already been attacks on it. With the MPs expenses thing, there were attempts to remove parliament from the scope of the act. The previous government tried to also amend the fees provision, which would have really severely restricted peoples use of the act. Ireland did have quite a good FOI act when it was passed, but after five years they tightened the exemptions in several ways and introduced hefty charges for making a request, and also 150 Euros to appeal to the IC, so use of the act immediately dropped off. There's always need to defend freedom of information from attack.
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