talk to Act Now 2nd Annual Freedom of Information Scotland Act Conference, Edinburgh, 07 February 2006.
Overview- experience with freedom of information
- excuses, excuses - the bad old days
- these days - a change for the better
- new excuses - remaining problems
- comments on the Scottish Executive review
Experience- over 40 requests under Freedom of Information Acts and Environmental Information Regulations to more than ten government agencies in UK
- mostly about environmental issues: nuclear power, nuclear weapons, transport, agriculture and wildlife
- seven appeals so far to the Scottish Information Commissioner
- many stories in the Sunday Herald and New Scientist based on the answers, and more to come
- journalist’s perspective, not that of a normal person
Excuses, excuses
Bad old days when official secrecy ruled. A secretive state, much more secretive that the US or most other European countries. Many excuses offered by public officials to prevent the release of information - very frustrating. These are just a few of the excuses I’ve been given over the years.
“we cannot talk about this because we are in a general election period”“that which we do know, we may not necessarily share”
“the information is not currently recorded centrally in a form that we could release”
“the information is only available at disproportionate cost”
“it’s commercially confidential”
“it’s sub-judice”
“it’s a matter of national security”
“it’s an internal document”
“it’s a draft”
“it’s an official secret”
“it’s not in the public interest”
Changes for the better
But now with the introduction of the new FoI regime this year, there has been a distinct change for the better:
- radical shift in the balance of power: balance of power shifted decisively in favour of the public and the individual questioner, away from official bureaucracies.
- emerging culture of openness: slowly but surely the UK government, the Scottish Executive and other public agencies are changing, becoming more open, more approachable, more straightforward, more honest.
- new truths told, new histories uncovered: as a result the public are better informed. We know things now we never knew before, about the history of nuclear weapons, about the financial crisis that was Black Wednesday, about our judiciary, about our schools, about our hospitals, about our surgeons, about nuclear safety, about major industrial polluters, about shooting wildlife - even about the cost of MSPs’ taxis. And lots of other things.
- cover-up of mistakes less likely: it is now less likely that any major mistakes by governments or public agencies will be covered up.
New excuses
Things are better, but of course they are not perfect. When they don’t want to release something, officials have had to find new excuses. This means they comb the FoI legislation looking to see what exemptions they can use.
Sometimes the new excuses civil servants offer are baffling. So that for example, when I asked the Department for Environment, Food and Rural Affairs about a list of potential nuclear waste dumps which the government waste agency, Nirex, had given them, they said they didn't have the information:
“What I am saying is that we don't have the list. I wouldn't want and couldn't be definitive about whether we had never had it. All I am saying is that if we did once have it, there's no record or memory of that being the case.” Spokesman for the Department for Environment, Food and Rural Affairs, January 2005
Earlier this year I asked the Ministry of Defence for a copy of a report assessing the safety of the nuclear weapons convoys that regularly trundle up and down the country. So far I have had the same frustrating response seven times - on 2 and 18 August, 9 September, 7 October, 4 November, 9 December and 31 January. It’s not our fault, they keep saying, because the public interest is being determined by another government department, someone else is causing a delay. This is clearly something the MoD is used to as all these letters are marked ‘FOI Template Nine’:
“A public interest test is required to consider whether there are overriding reasons why disclosure would not be in the public interest… Assessment of the public interest test by the Department for Constitutional Affairs remains ongoing and has not yet been concluded.” Ministry of Defence, 4 November 2005 (FOI Template Nine)
When I asked the Scottish Executive for some files they had on the emergency exercises held at nuclear sites, their initial response was unhelpfully pedantic:
“You have detailed the file numbers of certain files that you wish to see…The Freedom of Information Act provides a right of access to information not documents therefore you must be specific about the information you require.” Richard Bellingham, Scottish Executive, 17 May 2005
I should say that, after I rephrased the question, they supplied five fat, red ring binders full of background documents, about which I wrote a story.
Another common, new excuse, is the one I got from the Scottish Executive when I asked them to review their decision to withhold ten documents about nuclear exercises. We really don’t want to embarrass anyone, they said:
“The release of the information would inhibit both the free and frank provision of advice and the free and frank exchanges of views for the purposes of deliberation.” Michael Cross, Scottish Executive, 16 September 2005
And this is my favourite, revealed by an article in The Times. In response to an academic who had asked for background documents on the working of the Freedom of Information Act, the Cabinet Office revealed that the Freedom of Information Act is itself secret:
“Releasing information which would allow analysis of policy decisions affecting the operation of the Freedom of Information Act would of itself be detrimental to the Act’s operation because it may reveal sensitivities.” Histories, Openness and Records Unit, Cabinet Office, September 2005
Remaining problems
- ritual delay of 20 working days: 20 working days rule means some requests take longer to answer than they used to, because agencies consider any request as an FoI request and then ritually take 20 days to respond. Example of Glasgow City Council responding to air pollution query, using FoI 20-day rule as a delaying tactic. Other councils just provided the information.
- system overload: flood of requests to government departments and agencies, followed by flood of appeals to the information commissioners in Scotland and England, has produced a large backlog, and long delays. Hence what happened to my long-running request for the secret list of potential nuclear waste sites. My appeal to the English Commissioner was only acknowledged three months after I made it, and two months after the nuclear waste agency Nirex had released the information I was after.
- different agencies, different responses: I’ve had very different experiences with different agencies, which it’s probably unfair to summarise, but here goes anyway. The best was from the UKAEA at Dounreay, who immediately faxed me an internal report about a lost radioactive source. I've had good experiences with SEPA, SNH, HSE, MoD and parts of the Scottish Executive. My experience with other parts of the Scottish Executive, has been poor, however, as with my request for EU infractions information. Basic aim to understand what Exec is accused of by EC. We know that Scotland has been under investigation for over 30 breaches of European environmental law. We know which laws but not what the alleged crimes are. The Executive has repeatedly refused to provide this information, offering various excuses, including a deliberately narrow interpretation of my request for “responses” rejected by Commissioner. The Executive is still refusing to say anything about the substance of the charges they are facing, with the result is that we know less about their alleged environmental crimes than we do about the charges faced by common criminals in the dock. Silly. I've also had to wait more than 6 months for a response from BNFL. Oddly, Scottish Water proved me a photo of documents I asked for.
- advice to ministers: a frequent reason for the Scottish Executive refusing to release documents is that they contain advice to ministers which should remain secret. I can, I suppose, understand this if it is about something that is under active consideration. But I can’t understand why the advice should stay secret after a decision has been made. That, in essence is the subject of some of my appeals to the Scottish Information Commissioner, including one about the M74.
- enduring official secrecy: in some areas danger that official secrecy will endure. Recent example of leaked memo allegedly describing a conversation between Blair and Bush in which Bush suggested bombing the Al Jazeerez TV station, now the subject of a court case. Also more secrecy on nuclear plants because of risk of terrorist attack, could deprive the public of the ability to judge safety. And refusal of civil servants in London to accept a ruling by the English information commissioner forbidding the routine deletion of civil servants’ names.
- too much black felt-tip pen: finally, there is too liberal use of black felt-tip markers, or ‘redacting’ as it is called in officialese - so much so that I’ve thought of going into the business of selling black felt tip pens.
The Scottish Executive review
- Might be a good idea, but - possible that review of the FoI launched by the Scottish Executive might be a good thing, as any review holds the potential for improvement. But I have my doubts.
- Right time? - worry that it’s too soon. Just over a year has passed, the new regime still being understood, still bedding down. And it’s not clear that the first year will be at all typical of later years.
- Right motives? - the Exec’s consultation document reads like one that is designed to help bureaucracies like the Executive, not ordinary people trying to find things out. Most of its questions are about about deadlines, costs and administrative inconveniences. It seems like, a year after having introduced a radical culture-changing regime, civil servants seem taken aback that so many people should actually want to use it. The most worrying statements are about fees. It would be a backwards step if upfront fees were introduced. That may put off ordinary people, but not journalists or lawyers. The consultation paper also mentions in paragraph 16 the idea of aggregating costs when two or more requests are made by the same person. This sounds like the Executive is getting fed up answering numerous requests from journalists, like the hundreds that have been filed by my colleague at the Sunday Herald, Paul Hutcheon.
- Hidden agenda? - so there’s a fear that the real purpose of the review is to try and stop journalists asking too many awkward questions. A review to screw Paul Hutcheon, perhaps. When the minister, Margaret Curran, introduced the review in December she expressed concerns that the FoI regime in some way acted as a substitute for journalistic research. It doesn’t. In fact in my experience, it makes research harder. Believe me, I have never had so many tedious tomes to read through and understand in my life.
- Wrong outcome? - I fear for the outcome. Could be wrong of course. Hope I’m wrong, for it would be sad if the substantial gains that have been made were to be retrenched in any way. The task now is to expand and improve the freedom of information regime, not contract it.
