a seminar on freedom of information, Napier University, Edinburgh, 27 October 2008
Hello. I'm glad to be here. It's daunting to give my views rather than report other people’s. First here is a brief overview of what I’m planning to say in the short time available.
experience with freedom of information
excuses, excuses - the bad old days
these days - a change for the better
new excuses - other problems
exercising your right to know
experience with freedom of information
I have to stress that what I am talking about is just my experience, and my personal views. Others of course may have different experiences. Here, in summary, is my experience so far:
- 157 requests under Freedom of Information Act and Environmental Information Regulations to more than 30 government agencies in UK
- 52 to Scottish Government
- 30 to Ministry of Defence
- 13 to Scottish Environment Protection Agency
- 12 to Health and Safety Executive
- 7 to Scottish Natural Heritage
- 5 to Transport Scotland
- 5 to British Nuclear Group
- 33 to other public sector agencies
- mostly about environmental issues: nuclear power, nuclear weapons, transport, food, agriculture, pollution, development, wildlife
- half of requests so far contributed to published stories (77 out of 157)
- 30 appeals to Scottish Information Commissioner: 17 won, 4 lost and 9 still outstanding
- 6 appeals to UK Information Commissioner: I won, 1 lost, 4 still outstanding
excuses, excuses - the bad old days
In the past, bad old days, official secrecy ruled. We had 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, which was 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 form that we could release”
“the information is only available at disproportionate cost”
“it’s commercially confidential”
“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"
these days - a change for the better
But now with the introduction of the new freedom of information (FoI) regime in 2005, there has been a distinct change for the better.
The balance of power has shifted decisively in favour of the public and the individual questioner, and away from official bureaucracies. There has been a radical shift in the balance of power. Slowly but surely the UK government, the Scottish Government and other public agencies are changing, becoming more open, more approachable, more straightforward, and more honest. There is an emerging culture of openness.
As a result the public are better informed. We know things now we never knew before, about the history of nuclear weapons, about our judiciary, about our schools, about our hospitals, about nuclear safety, about major industrial polluters, about PFI schemes - even about the cost of MSPs’ taxis. It is now less likely that any major mistakes by governments or public agencies will be covered up. New truths have ben told, new histories uncovered, and cover-ups exposed.
new excuses - other problems
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, this was their response.
“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)
There are major problem with delays. Let me give one example. I originally asked the government’s Heath and Safety Executive for information on safety incidents at the nuclear weapons bases on the Clyde in October 2005. They released some information showing problems, but then, frustrated, passed the request to the Ministry of Defence (MoD), which released more documents showing a steep rise in safety incidents. I then asked for an internal review of the decision to withhold one remaining document. It took ten months for the MoD to decide not to release this document - a delay for which they profusely apologised.
The 10-month delay in responding "was neither reasonable nor acceptable”, according to the Ministry of Defence. "I apologise again for these failings and will ensure that both the Defence Logistics Organisation and the Clyde Naval Base are made aware of them and the need to ensure that future requests are dealt with in accordance with the Act.” (Letter from Ministry of Defence, 3 November 2006)
Incidentally, I received another response from the MoD a couple of weeks ago - which I reported in the Sunday Herald - in which they offered me their “sincere apologies” for a delay of nearly five months. Have we made progress?
I have experienced major problems with delays. For example I made a request to the then Department of Trade and Industry for list of nuclear safety and security files in January 2006. I sent a reminder in March 2007. I appealed to UK Information Commissioner in December 2007. That month the commissioner asked department to reply within 20 working days. Nine months later, I'm still waiting for a response.
There are particular problem with delays in UK, as opposed to Scotland. I asked the MoD for documents on a nuclear emergency exercise in October 2005. The request was refused in July 2006, and I then requested an internal review, which resulted in rejection on 12 September 2006. I immediately appealed to the UK Information Commissioner. I got an acknowledgement saying “it may take several months” before you hear from us. A year later, I was told that the case had been transferred to the Northern Ireland office. Then in April 2008, I was told an investigation was under way. That’s where it stands. Said the investigating officer “..you have been waiting a long time…this has no doubt been frustrating.”
There is also a problem with the legal difference over time limits for internal reviews. In Scotland public agencies are obliged under the Scottish legislation to respond to requests for internal reviews within 20 working days. But under the English legislation there is no limit set for the time taken to respond to requests for internal reviews, meaning that agencies can, and do, take years to conduct internal reviews.
But there is also an issue in Scotland. It has taken years for the Scottish Information Commissioner (SIC) to investigate some cases. He has been making an effort in recent months to clear up old cases, but I'm still waiting for a verdict on one case from from 2005 (about nuclear waste files).
There’s also a problem with reports that are due to be published. Last September the Scottish Government refused to release a vital report on projections of climate pollution because it was going to be published within 12 weeks. In December I was told that publication had been postponed to Spring 2008, so appealed to SIC. SIC managed a verdict in August 2008, which accepted my “frustration” but said the delay was “not inordinate” at the time of my request. The report is still not published.
Sometimes the authorities also hide silly, inconsequential things. In August 2006 I asked the Scottish Government for email exchanges between their public relations staff and other government environment agencies. For nearly two years they resisted releasing one document, until they were ordered to do so by the SIC. I was gobsmacked by its insignificance when I got it. It was an uninteresting media handling plan for a conference on red squirrels.
And sometimes I think we need to be wary of being too kind. I asked the Scottish Government for files on proposed ship-to-ship oil transfers in the Firth of Forth in October 2006. By April 2007, I had heard nothing so I requested an internal review, then appealed to the Scottish Information Commissioner in November 2007. My appeal was rejected because I took more than six months to complain of the delay. I've heard nothing since. Lesson: I was too generous.
Also some officials sometimes use weasel words to try and wriggle out of providing information. In 2005 a Scottish Executive official wrongly told me that “…the Freedom of Information Act provides a right of access to information not documents.” You could call that unhelpfully pedantic.
In August 2006, the SIC issued a decision criticising the Scottish Executive for interpreting the preposition ‘on’ in the narrowest possible terms. I had asked for information ‘on’ plans for nuclear waste disposal, and officials took that to mean information setting out specific plans for nuclear waste dumps, rather than information generally about nuclear waste plans. The SIC looked up ‘on’ in the dictionary and disagreed. The government’s interpretation was “unreasonable and even perverse," the SIC said.
This led to SIC writing to the head of the Scottish civil service, Sir John Elvidge, asking whether officials were deliberately being unhelpful to journalists. The charge was rejected, and the correspondence released under FoI.
When the Scottish Government gave me details of the flights taken within mainland Britain by civil servants, I wanted to know how my request had been handled, so I put in an FoI request asking to see the correspondence about my FoI request. They refused, I appealed to the SIC, and he issued a verdict last month. From that I saw that the government had argued that my request was “vexatious” so they didn’t have to answer it. Happily the SIC firmly rejected their argument. The documents arrived last week, a four-inch pile of them, all generated by my FoI request. Reading them was fascinating.
In several of the cases where I have been deprived of information, I’ve been told that it’s because of national security. The UK Atomic Energy Authority refused information on stores of plutonium and highly enriched uranium at Dounreay on national security grounds, and their decision was upheld by the UK Information Commissioner. Two weeks ago the Health and Safety Executive refused information about a “specific fire scenario” at Hunterston nuclear power station in North Ayrshire because to do so could “threaten national security” and increase the risk of a terrorist attack . And the MoD gave the scariest of reasons for refusing to release information on the nuclear weapons convoys that regularly trundle our roads - because of the risk of a terrorist attack:
“Such an attack has the potential to lead to damage or destruction of a nuclear weapon within the UK and the consequences of such an incident are likely to be considerable loss of life and severe disruption both to the British people's way of life and to the UK's ability to function effectively as a sovereign state.” (David Wray, Director of Information, Ministry of Defence, 4 May 2006)
Of course sometimes such dire warnings may be true, though from the outside, it’s impossible to be sure. In at least one recent instance, the government’s claim of national security has been found to be false. In December 2005 I asked for the Scottish Executive for documents on the "Release of Radionuclides in Drinking Water Systems". They were withheld and I appealed to the SIC, who issued a verdict in August 2007. This is what the SIC said:
“..the Executive has suggested that release of this information may have dire consequences. It has said that release could constitute an offence under anti-terrorism laws, that it might harm national security and it could even be misused in a way which could be lethal to the public… After considering the nature and content of the information being withheld I found that not only are these highly worrying claims overstated, in fact it is not possible to find any justification for them at all." (Scottish Information Commissioner, 23, August 2007)
Perhaps the commonest reason to withhold information given by government officials is this, or some version of it:
“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.”
I’ve had these words many times. The government’s argument is that revealing the private advice of ministers or officials would inhibit them from providing honest advice in the future because people would be less likely to say what they think, if they knew it could end up being published. This, the argue goes, would damage the quality of government. But the SIC has been very robust in dealing with this excuse:
- it can’t be used as a blanket get-out
- every case has to be considered on its merits
- the more time passes, the less potential harm (so it maybe worth asking again later)
- the damage to be public interest has to be real to merit withholding information
- so detailed consideration has resulted in some documents being release and some withheld
Of all the strange excuses my favourite was revealed by an article in The Times. This is what the Cabinet Office said in response to an academic who had asked for background documents on the working of the Freedom of Information Act:
“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)
The 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. This can be a step backwards.
I’ve also had very different experiences with different agencies, which it’s probably unfair to summarise, but here goes anyway. The best was the UK Atomic Energy Authority at Dounreay, which agreed to fax me an internal report on a lost radioactive source immediately I asked for it. I've had mostly good experiences with the Scottish Environment Protection Agency, Scottish Natural Heritage and the Health and Safety Executive. I've had poor experiences with parts of the Scottish Executive and British Nuclear Fuels. I've had an odd experience with Scottish Water, who sent me a photograph of the pile of documents they had on a cryptosporidium contamination incident.
In some places other habits of official secrecy seem hard to shake off. Officials sometimes waste time considering releasing duplicate documents, copies of press articles or other already published information. In one case, I received a blacked out list of conference delegates at a conference I had attended.
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. I received a declassified document about the risks of accidents with US nuclear missiles when they were stationed at Greenham Common in England. Someone at the Ministry of Defence had been very busy with the black marker before they released the document. Almost every number revealing the potential risk had been backed out, rendering it virtually incomprehensible. On appeal managed at least to get a few of the numbers. The Edinburgh Evening News was given a large report about the problem of pigeons at the Scottish Parliament, whole pages of which were blacked out. Goodness knows why.
exercising your right to know
As we’ve seen, making FoI request requires patience, lots of it. It's not easy for journalists or others with daily or weekly deadlines, or lots of work, but it can pay off. Tenacity is vital. Keep the faith that it will come to something and don’t let the bastards grind you down. Be patient, be tenacious.
If your request is refused, always ask for an internal review. An internal review is relatively easy to request, and with some organisations prompts a thoroughgoing review and yields more documents. If your internal review gets nowhere, it is always worth thinking about appealing to the information commissioner, though that inevitably involves some work, as you’ve got to put together a picture of what’s happened so far, and make arguments.
Don't forget your requests. Keep a running log and set your diary to remind you of key dates. That's why I set up my log of FoI cases on my website, so that I can keep track.
FoI requests don’t replace other research or investigation, they supplement it. You can’t go looking for skeletons everywhere. You've got to have some idea where the bodies are buried. By all means go fishing for information, but don’t go drift netting.
There are bound to be ideas and approaches I haven’t considered. Be imaginative. Innovate. Dare to go where no-one has gone before. Don't get downhearted. A final thought:
“Knowledge is power. Information is power. The secreting or hoarding of knowledge or information may be an act of tyranny camouflaged as humility.” (Robin Morgan, radical US feminist and activist)