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Protection Racket

Maurice Frankel on the government’s restrictions on freedom of information

Only one in ten people trust politicians to tell the truth when in a tight corner and only 16 per cent trust governments of any complexion to put the country’s needs above those of their own party. These figures, from the latest British Social Attitudes survey, should worry ministers. No government can operate effectively if the public don’t trust it, and if ministers are disbelieved - even when telling the truth they’re in big trouble.

Freedom of information legislation was meant to be the antidote to this. In 1996 Tony Blair promised that Labours FOI Act would address the publics disillusion and disaffection with politics. It would signal a new relationship between government and people and be absolutely fundamental to how we see politics developing in this country over the next few years.

That might suggest that an FOI Act would be an early priority - but of course it wasn’t. The governments lack of enthusiasm for its own proposal was soon apparent - and when the Act was ultimately passed, the Prime Minister himself intervened to set commencement back to January 2005. In the meantime, surveys show that public trust in government has now sunk below that of the Conservative years.

What difference will the Act make when it does come into force? On the plus side, almost the whole of the public sector will be covered, from government departments to quangoes, local councils, NHS trusts, schools, the police, armed forces and Parliament itself - with the courts and security services the main exceptions. The law will be retrospective, applying to old records. It will apply to any written or e-mailed request, even if the applicant doesn’t mention the Act. Charges for information will be modest. Authorities will be required by law to assist applicants and an independent Information Commissioner will enforce these rights.

Not bad then? Well, you haven’t heard the exemptions yet. Some of these apply only if disclosure would prejudice a certain interest such as defence or commercial interests - and even so allow disclosure if there is an overriding public interest in it. But in others the balance is weighted against disclosure. The facts on which policy decisions are based fall within the same exemption that applies to sensitive civil service advice to ministers. They will be released only after weighing the public interest in disclosure against the public interest in confidentiality. Officials and politicians have never found it hard to think of reasons why openness is not in the public interest and inviting them to do so will reinforce the very secrecy instinct that FOI should be eliminating. Such purely factual information cannot be withheld at all under the equivalent Irish or Australian FOI exemptions.

Information about health and safety hazards is the bread and butter of FOI laws overseas. But for information obtained during inspections by enforcement bodies, like the Health and Safety Executive, the presumption is that it will not be disclosed - even if no prosecution is pending.

Another catch-all exemption applies to information which in the reasonable opinion of a qualified person would prejudice the effective conduct of public affairs - a unique combination of elasticity and subjectivity.

However, the Commissioner will be able to override these exemptions and order disclosure if the public interest in openness justifies it. But here’s the catch. Any order the Commissioner makes on public interest grounds against government departments (though not other bodies) can be vetoed by ministers. Labours FOI white paper had ruled out this option saying a veto would 'undermine the authority of the Information Commissioner and erode public confidence in the Act.'

The veto could prove just a comfort blanket, calming ministerial fears about the new regime, but never actually used. But the omens are not good. Last year ministers for the first time refused to comply with one of the Parliamentary Ombudsman’s disclosure recommendations under the 'open government' code - something their Conservative predecessors never did. The Ombudsman had ruled that anonymous statistical data about the number of times ministers declared possible conflicts of interest to their colleagues was not exempt. The then cabinet secretary, Sir Richard Wilson, offered the dismal justification that such information could be used against ministers, adding 'there is no such thing as just a little bit of information which can safely be disclosed, there is no piece of information, however small, that cannot become significant.'

This is not a one off. The Ombudsman himself has complained that government departments resist disclosure without grounds where it could 'cause them embarrassment or political inconvenience'. And in July this year he threatened to abandon investigating openness complaints altogether because of the governments 'hardening of attitudes'.

Le'ts hope it will harder for the government to get away with this approach in the face of legislation rather than a code.

But if there are going to be changes, its clear they will have to be fought for.

Maurice Frankel is director of the Campaign for Freedom of Information