FREEDOM OF INFORMATION
These are rough lecture notes and do not constitute legal advice. The
notes were updated in Novermber 2008
was a New Labour policy objective.
secrecy in government leads to arrogance in government and defective
- Tony Blair 1995
2000 Act (came into force January 2005) gives public and journalists
TWO key powers
Makes it mandatory on a public authority
to disclose whether or not it has the
– yes, you can go fishing
– have you got any information on
A, Y and Z ????
? If so, Public Authority must communicate that information
More than 1,000 public bodies
? Central and local government
Other public bodies throughout England,
Wales and Northern Ireland
? Parish & Town councils
? Health trusts
? Government departments
? Schools, colleges, universities
Utilities, ie water, gas electricity, etc
Fire & Police Authorities
ALL QUANGOs including 400+ named bodies, eg
ALL Government Advisory Committees inc
- Medicines Control Agency
- Equal Opportunities Commission
- Commission for Racial Equality
? British Potato Council
? Advisory Committee on Wine
public bodies, offices established by
? Crown Prerogative
? Government department
? Ministerial edict
? Any private sector org performing PUBLIC service
Public- Private contractors
Providers of sub-contracted public service functions
Security & Intelligence services
? Special forces – SAS / SBS
ALL OF WHO have NO DUTY
to CONFIRM or DENY that
ANY INFO EXISTS
ABSOLUTE - refusal if no PUBLIC INTEREST TEST applied
? Info available elsewhere – Google?
? Court records
subject to “Public interest” test
23 such criteria spelt out in Act
? Government policy formulation
? Info “prejudicial” to effective conduct of public affairs
? Law enforcemen
Legal professional privilege
PUBLIC INTEREST TEST:
must be released UNLESS it is judged that the public interest in NOT
disclosing it is greater than the public interest in releasing it”
authorities must disclose if info
Furthers understanding & participation in public debate on issues
of the day
? Promotes accountability/transparency of
(i) public authority(ii) how public money is spent
Allows public better understanding of(i) decisions affecting individual
lives(ii) asssists challenges to such decisions
Available only to Cabinet ministers
? Anyone else such power derogated to
Can block Information Commissioner disclosure on Public Interest grounds
CANNOT be used against an order NOT covered by EXEMPTION
No need to disclose WHY info sought
Response must be within 20
No distinction between media requests and others
Statutory duty to assist inquiries
Info refusal only citing clause of Act
Must outline complaints procedure
Request in writing
2) Enough info for authority to reply
3) Can specify how info must be given (by post, e-mail, fax etc.)
Campaigning journalist Heather Brookes, has
written: “Most of us are not that interested in party politics.
We just want good solutions to common problems: safe public transport,
reliable and competent healthcare, good schools for our children, safe
streets and a just and efficient legal system.”
Making an application
Under the 2000 FOIA more than 100,000 public authorities were required
to give a legal right to the public, including journalists, to inspect
their records. They are also required to publish a schedule setting out
the type of information which they hold. They must also help process
inquiries within certain time limits. The whole process is overseen by
a national Information Commissioner to whom appeals can be made. Public
bodies which do not help the public exercise their rights under the act
could, in theory, lose their right to keep records at all which, in practice,
would mean they could no longer function.
The operational part of the act is
Any person making a request for information to a public authority is
- to be informed in writing by the public authority whether it hold
information of the description specified in the request, and
(B) if that is the case, to have that information communicated to him.
But a large part of the act is taken up with a long list of exemptions – cases
or circumstances where a public body does not have to provide information.
The first potential hurdle is the definition of “information” itself.
The Act specifies that only information, or records of decisions, which
have been written down or electronically recorded, counts as information
available to the public under the meaning of the Act. The danger is that
once public officials realise that decisions they record will be open
to public scrutiny, they will be more circumspect in creating accessible
records in the first place. It was alleged in the Butler report that
under the prime ministership of Tony Blair decisions were often made
be unofficial sub-groups. Records of decisions made in cabinet or other
official bodies did not exist, because the they had been made in advance
and in private. Butler’s report criticised the practice of “sofa
government” which, he complained, had led to greater secrecy in
reality, despite the FOIA and other measures aimed at “open government”.
(House of Commons dated 14th July 2004 for the
Review of Intelligence on Weapons of Mass Destruction
Report of a Committee
of Privy Counsellors Chairman: The Rt Hon The Lord Butler of Brockwell
KG GCB CVO )
The Lord Chancellor office issued a Code of Practice on Management of
Records which establishes standards in this area.
ASSISTANCE – section 16, the agency must provide help.
If there is a mixture of exempt and non exempt information, then they
must supply the non-exempt, and they can black out what they believe
to be exempt information.
Argument of over restrictive fees and exemption on grounds of excessive
cost of processing request as a exemption from the act.
If a request costs too much, then the department does not have to supply
the information, even if you are willing to pay. Latest fee guidelines
(this changes frequently) are given on the Department of Constitutional
Affairs website, and the pro blem is widely discussed on the websites
of advocafcy groups such as campaign for FOI and the personal website
of investigative journalist and FOI expert
Previously the cost of providing an answer was a common reasoin
why ministers would not respond to PQs – (discuss PQs as a way
of obtaining official information – tame contacts. Often through
pressure groups, will maintain links with backbench MPs who will be willing
to table written parliamentary questions – especially opposition
MPs to government ministers.
The way round this cost issue is to ask a series of small questions,
rather than a big trawl. But then again asking a lot of small questions
may be regarded as vexatious,. In at least one case a persist user of
the FOI has been banned from asking further questions – GET Referrnecve – so
there is a fine balance to be struck, and a growing band of FOI user
specialists, many attached to pressure groups such as environmental lobbiest,
weho are becoming increasingly expert at the tactics and ‘reality’ of
the FOI request game.
PUBLICATION SCHEME – each authority will publish one – they
vary in usefulness.
County Council is fairly typical.
TIPS ON GETTING STORIES
I went to a conference (Press Gazette Media Law confrence earlier this
year) and there was a journalist call Matt
Davis who has made a very profitable career just out of selling FOI
stories to the national papers.
He said the act was not perfect - too many exemptions, too many delays
and thje new ruling on 'prohibitive cost' can give bureaucrats an effective
veto. Yet it is still a brilliant tool.
He works for an agency - Connor PRess Associates - a local court reporting
agency for Brighton. I liked him he was a total hack. He sais that all
journos had to become FOI evangelists.
Good authorities to go for (happy hunting) are the quangos - eg NHS
litigation authority (how much paid in compensation this year for medical
cock-ups) - his eyes actually lit up with an evil glint at the thought
of the Olympic Delivery Authority.
The method was one think creatively of a story - eg how much has South
West trains spent this year on flower boxes - then send off an application.
Think of lots of stories and play the percentages.
He got a set of national front pages with THE WORST HOSPITALS IN BRITAIN
- that was not the usual press released league table crap, it was by
dpoing FOI on an obscure body called the NHS litigation authority (they
deal with compensation claims). He asked for a break down of spending
by hospital and also for the insurance the hospitals needed. He identified
the worst hospitals on the basis of how much the insurance companies
charged to cover them for negligence. It was a big exclusive story -
pure investigative journalism, cheap and effective and easy to do.
BORAT - two years ago when a massive start - he sent off an FOI to teh
Foreig Office asking for ALL documents from UK ambassador to Kazakstan.
Revealed theat the Kazak government had threatened action against Britain
- maybe even military attack on Britain - because of BORAT - was a big
One thing is to track popular culture so right now there's a big TV
show about pandemic virus, so you can get the 'real liffe' fversion of
preparedness for that (from emergency planning).
It is important to frame the requests in bureaucratic language, and
keep it vague. If you are specific and categorical (journo language)
then they can wriggle. It is similar to interview techniques- open questions
are better than specifics. At same time must not be too wide or vague.
There's an art to it - trial and error. Ask lots of simultaneous questions.
It is like playing the game of 'battleships'.
Important to think which particular authority will have what sort of
information (you need a good knowlege of local and national government
structure - don't use lacl of knowlege not to do it, but it will help
if you know NCTJ/BJTC-type public affairs.
It is amazing the amount of information which is now collected and categorised.
Eg if you fall out of bed and hurt yourself up to 12 seperate authorities
will record this fact - each stage from when you go to the doctor, to
the hospital, to the pharmacy, then the type of accident will be notified
to Health and Safety Executive. and to various policy groups. It is all
aggregated and some public body will somewhere ahve a statistic on the
fact that twice as many people are now falling ouit of bd than last year
if you think that might be the case.
Also there are 10 categories of aggregated information for exclusion
from school for example. Also information on recycling or waste disposal
or toxic materials or anything green is a goldmine.
The main danger is asking for anything that might identify anyone in
particular - because of section 8 HRA and Data PRotection Act, they can
turn you down if the request will identify anyone, even by accident.
Avoid that in the way you fram the question.
Keep questions short and simple. Ask multiple questions (break it up).
Also ask for previous years. Also ask for brief summary of important
or indicatiuve cases, without identifying anyone. This will add colour,
or tease out more stories.
Eg Matt asked how much money has been paid as compensation to school
children in aggregate for injuries sustained in school. I (think this
was to ministry of education, or possibly to a local education authority).
They came back with the figure and the example of one of he most expensive
cases (he has asked for a non-ID summary of the most expensive cases).
They came back with £6,000 paid to a teenager who was injured when
a gate his was climbing over collapsed on him and injured him when he
was breaking in to the school. Big story - Daily Mail paradise.
Tip is don't take no for an answer. Re-phrase the question. Sometimes
its a dialogue until they give you something, with many exchanges of
correspondnce, keep refining the question. Then also appeal and re-appeal.
Make it clear that you won't go away. Go to the Information Commissioer.
He always feels encouraged when they are evasive at first - it confirms
that you are on to something.
More examples - "Too Fat to Work" - came from Department of
Work and Pensions - asked for a spreadsheet breaking down all the categories
for which people got disability pensions and benefits - not just generally
disabled - how many blind, how many mentally ill, etc. It took two months
of correspondence. Eventually got it in great detail. Spotted in there
several thousand people who were on diability benefit for obesity - hence
'too fat to work'. Big national story.
Previously the news editor of the Kent Messenger was a FOI pioneer -
he got for example just the electricity bill for he town hall and went
and photographed the office with all the lights blazing. It made a great
local paper investigative front page.
these rough notes end.
The FOI campaign website tracks FOI application stories as they appear
in the press.
2000 Freedom of Information Act Itself
official FOI site, with a guide for users
as a shot in the arm for local/regional press and radio
FOI Blog and link site
in the NHS
notes do not constitute legal advice. They should be read in conjunction
wit hthe lecture, subject to indepednent verification and research.
back to MA journalism.
back to BA journalism.