Freedom of Information by Tim Tate

Tim Tate is a multi-award winning documentary film-maker, investigative journalist, and author. In this blog he looks at the problems presented to those seeking information from government departments.

The Freedom of Information Act

On 30th November 2000, Britain’s first Freedom of Information Act (FOIA) came into force. It was, quite literally, revolutionary legislation since it completely reversed previous law and practice governing the disclosure of official records.  

Prior to FOIA, the legal doctrine was that government documents would be kept secret for 30 years, before being released to the UK National Archives. After FOIA the presumption is that all records are automatically open to the public from the day they are created, subject to a series of broadly-drawn exemptions covering, in particular, national security and personal data.

FOIA also subsequently modified the previous legislation, the 1958 Public Records Act, in relation to government files which pre-dated FOIA; section 46 imposed a systematically reducing timeframe obligation on public authorities to transfer these documents to the UK National Archives (TNA). As this timeframe stands today, subject to FOIA’s exemptions, historic records must be sent to TNA within 20 years of their creation.

The problem of enforcement and compliance

There is, however, a yawning chasm between theory and practice – one that exposes the fragility of both the Freedom of Information principles and the Information Commissioner’s Office (ICO), the statutory regulator which is charged with enforcing compliance.  

FOIA rests on the assumption of what constitutional historian Professor Peter Hennessy has termed ‘the good chap’ theory of government: a respect for rules and integrity in the conduct of public affairs.  Sadly, the past three years have demonstrated that this faith is misplaced: Boris Johnson’s Cabinet Office – the lead department controlling Freedom of Information policy and practice - has repeatedly ignored, stretched or shattered the fundamental principles of the Act.

Detailed reports from both the House of Commons Public Administration and Constitutional Affairs Committee (The Cabinet Office Freedom of Information Clearing House: HC 505; published 29 April 2022; published written evidence FOI0026) and the campaigning group, openDemocracy (Access Denied: openDemocracy, October 2021) have highlighted the Cabinet Office’s routine failure to meet statutory deadlines for responding to FOIA requests and its use of dissembling, delay or outright falsehood to block the disclosure of government data. The result is a lengthy and expensive process in which researchers seeking government records are forced to play a convoluted ‘game’ of ‘whack-a-mole’, challenging each of the successive grounds for refusal.  

Battling to access public records

My own experience confirms the Cabinet Office’s cynical behaviour. Three years ago, I began researching a new book on the Spycatcher saga: for more than five years in the 1980s the British Government slogged through courts across the world in a quixotic and doomed attempt to prevent a former MI5 officer, Peter Wright, from publishing his memoirs. The cases, which cost millions of pounds of public money, all ended in ignominious failure and international ridicule. Unsurprisingly, the case generated a large number of government documents: in April 2019 I submitted a FOIA request for all 32 Spycatcher files created by the Cabinet Office. The Public Records Act required that the entire series should have been sent to TNA by December 2016; though some of their contents would have been withheld under FOIA’s national security exemptions, the government would have to apply a public interest test to justify any redactions.

For unstated reasons, the Cabinet Office did not transfer the files to TNA. Instead, in December 2016, it successfully sought a three-year extension from the Department for Culture, Media and Sport (DCMS). The new deadline was thus December 2019.

When I made my request, I assumed that it might take several months for the government to meet the very clear twin obligations of FOIA and PRA. I did not expect that 37 months later the files would still be withheld -  much less that throughout this period the Cabinet Office would repeatedly ignore disclosure deadlines imposed by ICO; delay or obfuscate by promising release one day, then outright refusal months later; or that when backed into a corner it would exploit its own failure to transfer the files to TNA as an excuse to avoid the public interest test required for their continued suppression.

In August last year, I set out the sorry history of the Cabinet Office’s behaviour in a submission to the Public Administration and Constitutional Affairs Committee (The Cabinet Office Freedom of Information Clearing House: HC 505; published 29 April 2022; published written evidence FOI0026). Since then, the saga has descended into further absurdity. Since February the Cabinet Office has refused to state whether it ever plans to release the files, and the reason it sought an extension to the deadline for transferring them to TNA has been deemed too secret to disclose. 

The FOI Process is broken

The Spycatcher files saga has also exposed the inability of ICO to regulate delinquent public authorities. Throughout the past three years ICO has wrung its hands at the Cabinet Office’s antics, issued timid rebukes for the delays and dissembling – but has studiously avoided using its, admittedly limited, powers to force compliance.  Even when the Cabinet Office told a blatant lie to the Commissioner – falsely claiming that the pandemic prevented the files from being disclosed in December 2019, despite COVID not emerging until February 2020 – ICO simply shrugged.

There is a reason for this. Over recent years, successive governments have almost halved ICO’s budget; at the same time its case load has more than doubled. The unsurprising result is that in 2021 the Commissioner managed to resolve just 4,000 FOIA complaints: the lowest number for more than a decade. In the same year, ICO’s backlog of unfinished casework grew by 56 per cent. Today, it takes the regulator between nine and twelve months even to open a case. ICO’s own data also shows that in this worst of all years for Freedom of Information, it imposed no sanction on any government department despite the very clear evidence of malfeasance.

The Freedom of Information process is broken – fatally undermined by the Cabinet Office, which drives a coach and horse through FOIA principles, and by a toothless and woefully under resourced regulator. There is no functioning mechanism by which a recalcitrant and duplicitous government can be forced to comply with the letter – much less the spirit – of the law. Unless and until Parliament updates the legislation and properly funds its enforcement, Freedom of Information will continue to wither on the vine. 

About the author:

Tim Tate is a multi-award winning documentary film-maker, investigative journalist, and author. He is the author of 18 published non-fiction books, has written for most national newspapers and has produced more than 80 documentaries; his work has been honoured by Amnesty International, the Royal Television Society, UNESCO and the New York Festivals (amongst others).

For full details see: www.timtate.co.uk 

Thumbnail Photo by Jonathan Farber on Unsplash