Britain’s change to openness has been fairly recent, in comparison to other countries.
Traditional Release of Information:
Voluntary Publication:
Government will generally act openly, except in regard to things where it determines that it should not be open for public good.
The government publishes vast amounts of information to the public. There is a 30-year rule (changing to 20 year) for this release. This has been greatly aided by the internet.
Exploitation of Information Monopoly:
The government collects information for the public. The information that the government holds belongs to people, therefore the only grounds that can be given for withholding information can be matters related to protecting or benefitting the general public.
Problem:
A government could choose to only release information that is favourable to them or would aid with re-election. Partial information release may look like full release, allowing for news management and press manipulation. This creates cynicism against the government.
Controversial information is commonly released when media outlets are focused on larger stories.
For example, on the day of 9/11, Jo Moore advised the Department of Transport with the subject to her email: ‘It's now a very good day to get anything out we want to bury.’ She knew that news coverage of 9/11 would block out any controversial government action from the public. While her actions were controversial, she kept her position in government as she didn’t do anything legally wrong.
Parliament-Executive Nexus:
MPs are provided with mechanisms for obtaining information from ministers in Parliament.
Current Freedom of Information Laws within the UK:
Official Secrets Act 1911 / 1989:
The Act prevents certain actors within the government and elsewhere from disclosing information to the public. This was introduced to prevent and punish espionage.
It received little scrutiny as it was being passed through Parliament.
Areas that are Covered (What cannot be Disclosed):
International Relations
Ongoing Criminal Investigations
Information relating to the security service, GCHQ etc.
Defence matters.
Freedom of Information Act 2000:
s1 - Provides a legal right to access governmental information.
EG: the right to information that the government holds about you.
Exemptions:
Schedule 1 - The Freedom of Information Act only applies to the agencies and authorities listed.
s21, 23, 32, 34, 36, 37(1)(a)-(ab), 41, 44, 40 - there are 9 absolute exemptions to the release of information.
17 qualified exemptions in total.
s22, 24, 30, 35, 37, 39, 42, 43(1) - 8 are class-based.
s26, 27, 28, 29, 31, 33, 36, 38, 43(2) - 9 are content-based.
s2 - These are subject to whether they are in the ‘public interest to release the information, meaning the release of information must be more in the public interest than it is not.
s12 - Information will not be released when it is too costly to do so.
s14 - Information will not be released when the requestor makes vexatious and repeat requests for the information.
In Ashton v Cabinet Office, the A requested a large amount of information. The Cabinet Office refused, stating that he was asking for too much. The court held that A was entitled to the information.
Legislative History:
Labour introduced the Freedom of Information Act as part of their manifesto.
While at first this seemed like a monumental constitutional leap, when the government actually introduced the bill to Parliament, it had lots of exemption clauses and provided veto powers to ministers.
There were fears of potential spin-doctoring of openness: in the short term it appears that the government is wholly open, but in the long term, it is not.
‘Unnecessary secrecy in government leads to arrogance in governance and defective decision-making… the perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government… [Act would let] politics catch up with the aspirations of the people and [deliver] not just more open but more effective government… an absolutely vital reform’ [1]
Common Law:
In Kennedy, the Supreme Court used existing human rights conventions from within the common law to establish a right to information within the common law.
Problems with the Current System
Veto Powers:
s53 - Ministers have a veto power to prevent the release of information under the Freedom of Information Act. EG: Evans.
Frustrations:
Record destruction.
Hiding files behind other ones.
Re-emergence of face-to-face communication to prevent recording of the content.
References:
[1] White Paper, Your Right to Know (1997)
Cases Mentioned:
Ashton v Cabinet Office [2018] UKUT 208 (AAC)
Kennedy v Charity Commission [2014] UKSC 20
Evans v Attorney General (2015) UKSC
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