Your Right to Know: A Citizen's Guide to the Freedom of Information Act - Rilegato

Brooke, Heather

Rilegato

ISBN 10: 0745325831 ISBN 13: 9780745325835

Casa editrice: Pluto Pr, 2006

Riassunto

Have you ever wanted to force open the secretive doors of government? This book provides all the tools you need. With a new foreword by Ian Hislop, it's also fully updated to include new tips for digging out information, new template letters, an expanded directory, new examples of case law, an expanded business chapter, and a new chapter on the law in Scotland.

"Heather Brooke has written the Information Liberation Front to end the politicians' enslavement of the facts which belong to the public. . . . Bravo."
---Greg Palast, author of Armed Madhouse

"Heather Brooke pulls no punches when it comes to exposing how the government keeps the British public in the dark. Even better, she tells readers how they can successfully challenge the system."
---Michael Crick, BBC

"All journalists should pick up these tricks."
---Jeremy Dear, General Secretary, National Union of Journalists

Su questo libro

Informazioni sugli autori

Heather Brooke is a campaigner for open government and a freelance writer with articles published in The Times, The Sunday Times, Guardian, Daily Telegraph, Independent, Evening Standard, New Statesman, BBC History and Journalist magazines. She was a runner-up for the inaugural Paul Foot award for investigative journalism. She has been interviewed on Sky news, The Politics Show on BBC One, BBC Radio 4 (The Message, You & Yours, The World Tonight), BBC Radio 5 Live, and BBC Radio Two’s Jeremy Vine show. Heather currently teaches the ‘FOIA and investigative journalism’ course for the National Union of Journalists. She has trained journalists at the Guardian, Financial Times, Independent, Trinity Mirror newspapers, BBC News and BBC World Service.

Mike Gonzalez is Emeritus Professor of Latin American Studies at the University of Glasgow. He is the co-editor of Arms and the People (Pluto, 2012) and author of A Rebel's Guide to Marx (2006) and Che Guevara and the Cuban Revolution (2004). Houman Barekat is a London-based writer and editor of the literary journal Review 31. He has contributed to various publications including Tribune, Art & Music and the Los Angeles Review of Books, and has reviewed for academic journals including International Affairs and Capital and Class.

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Your Right to Know

A Citizen's Guide to the Freedom of Information Act

By Heather Brooke

Pluto Press

Copyright © 2007 Heather Brooke
All rights reserved.

ISBN: 978-0-7453-2583-5

Contents

Foreword by Ian Hislop, vi, 
Acknowledgements, viii, 
Introduction, 1, 
1 FOI in practice, 9, 
2 Scotland, 22, 
3 Laws of Access, 30, 
4 Central Government, 55, 
5 Intelligence, Security and Defence, 98, 
6 Transport, 112, 
7 The Justice System, 123, 
8 Law Enforcement and Civil Defence, 154, 
9 Health, 183, 
10 The Environment, 206, 
11 Local Government, 226, 
12 Education, 251, 
13 Private Companies, 263, 
14 Information about Individuals, 277, 
Conclusion, 283, 
Appendix – Letters for Requesting Information, 287, 
Index, 296, 

CHAPTER 1

FOI in Practice

Freedom of Information is a fantastic tool for improving democracy and equality, but there are also tremendous benefits for improving the professionalism, integrity, honesty and value for money of all public services. The continual state of crisis management that haunts many public services is often the result of problems that were allowed to fester and grow in the traditional climate of secrecy.

Contrary to expectation, FOI was not used solely by journalists in the early years, though they were first off the mark on 1 January 2005 putting in requests. Very quickly, citizens took over to become the main users of the Act. In the first year, FOI requests broke down like this:

• 70,000 requests to English councils

• 40,000 to central government and associated public bodies

• 21,000 to police forces nationwide

• 2,083 requests to higher education

• 400 to the General Medical Council

• 18,000 voluntary groups used the Act at least once in the first year and 50,000 bodies plan to use it in the future

That's a lot of people exercising their right to know, especially considering there was almost no promotion of the Act from Whitehall. Information Commissioner Richard Thomas told me his office spent just £218,000 promoting the Act over a three-year period up to March 2006. Perhaps as a result, only 11 per cent of people knew about the FOIA without prompting, according to a survey done by his office. Awareness does rise to 79 per cent when prompted, however, usually by mentioning stories in the media where the law is cited for a major disclosure. Awareness was higher in Scotland, due to the Scottish Commissioner's more proactive role promoting the Act.

The new openness laws have not overloaded public services or led to the collapse of government. The Commissioner's survey found that 81 per cent of FOI practitioners cited the Act as a positive piece of legislation and only 3 per cent thought it particularly troublesome. Even more noteworthy, 79 per cent of public authorities said releasing information under FOI had increased trust in their service and improved records. As a result of the greater accountability they said public relationships had improved.

The Yes, Minister aphorism that you can either be open or have government but not open government is simply not true. History shows that those countries with a strong free press and freedom of information laws are the best run and most economically successful, while the ones adhering to the 'Yes, Minister' view are badly run dictatorships.

Ironically, in 2006 the UK government was involved in a secret review of the FOI Act and there was concern that politicians were laying the groundwork for weakening the law further. The Lord Chancellor Charlie Falconer claimed public bodies were being overwhelmed with vexatious FOI requests and that fees would need to be introduced to cope. Yet, the Chancellor only knew of six such requests – out of more than 150,000 across the public sector.

The real problems with the law do not come from the public, but from those in power who are neither adhering to nor enforcing the law in a timely way.

PROBLEMS IN THE EARLY YEARS AND HOW TO OVERCOME THEM Delay

Information is a highly perishable commodity so undue delay diminishes its usefulness. Delay has been the number one problem with the law. Unfortunately, the regulator meant to tackle this problem is only adding to it with more delay and a backlog of cases. Nevertheless, the minister in charge of FOI told the Parliamentary committee investigating the first year of FOI: 'There's nothing I see that is a systemic problem in relation to delay' (Baroness Ashton of Upholland speaking to the Constitutional Affairs Committee, 18 April 2006).

Delay is endemic in all stages, and is likely to get worse before it gets better. Firstly, some public authorities are failing to respond within the 20-working day limit. The Home Office is a persistent offender. The department waited until 19 September 2005 to respond to a request sent on 3 January 2005, and then the answer was to refuse the request because answering would exceed the cost limit. The complainant then refined the request to bring it into the cost limit, only for the Home Office to say the information was exempt! The Information Commissioner's ruling on 2 November 2005 stated only: 'the Home Office has breached the time limit for compliance under the Act and has advised the ICO that it expects to provide a substantive response to the complainant by 14/12/04' (Case Ref: FS50073711).

Then there is the whole appeals process that can take up to a year or longer. Before you take a case to the Commissioner, you first have to seek an internal review from the same public body that originally refused your request. You won't be surprised to learn that in 78 per cent of cases the public body agrees with its original refusal. The law does not specify a deadline for internal reviews, but all public authorities should have a complaints policy that states their performance targets.

Another delaying tactic adopted by bureaucrats is a loophole in the law that allows public bodies a time extension if they need to consider the public interest. The Metropolitan Police cited this extension three times while delaying my request for documentation about the shoot-to-kill policy. In total, I waited four months for their answer, which was only a partial disclosure.

Unless this loophole is closed, I predict that it will become widely abused as a means of discouraging the public from asking questions. Ultimately it is up to the Commissioner or Parliament to step in and set strict time limits. The current failure to impose any deadline sets a bad example that will only encourage these delaying tactics.

Ironically, it is within the Commissioner's Office itself that one encounters the greatest delay. Out of seven cases I put through to the Commissioner, just one had been processed after more than a year. By March 2006 there were 1,372 cases still open. Friends of the Earth discovered that of all the cases pending as of 15 January 2006, 586 cases were older than six months and 106 had not even been allocated to a caseworker.

This delay is frightening because only a fraction of refusals go to the Commissioner (0.72 per cent to be exact). Only the most tenacious citizens are taking their cases to the Commissioner, so if there is already such delay, it can only discourage others from seeking review. Finally, in March 2006, the Commissioner announced that he was implementing a performance target of closing 50 per cent of cases within 60 working days.

The Commissioner's Office should communicate with applicants every 28 days, yet this is not happening. Stephen Gradwick, a consultant in Merseyside who has made almost 40 FOIA requests, told me the only way he has been able to keep track of his cases is by telephoning the Commissioner's Office. 'They are just not being helpful or user-friendly, and I'm given no information about the status of my cases unless I ring. At one point, the Deputy Commissioner then sent me an email telling me to stop enquiring about my cases.' It's not clear what rights, if any, applicants have in the face of such poor performance. All I can suggest is that you badger the Commissioner's Office every 28 days and demand to know the status of your case.

The Commissioner told me that he is committed to reforming his Office before his term expires on 30 November 2007. A newly designed website would finally include a searchable list of cases under investigation and decisions issued. This is good to hear, because the only way to judge the effectiveness of the regulator is to have regular access to caseload statistics.

A severe lack of enforcement

If you or I were to ignore, say, the parking rules in our town, we would most likely find a ticket for £50 slapped on the windscreen of our car &ndsh; if it hadn't been clamped or towed. But when the state breaks its own law on freedom of information it faces no penalty whatsoever. This is partly due to the laxity of the law, but also the laxity of the regulator charged with enforcing it.

'The point of the law is not to punish public authorities,' the Commissioner told me. 'The court can penalise them, but I cannot.' While technically true, the Commissioner does have the power to name and shame those who disobey the law. Yet he has refused to use even this limited power.

The UK Commissioner received 2,385 complaints during 2005. The public authorities subject to complaints were:

• Local government – 39 per cent

• Central government – 29 per cent

• Health – 7.5 per cent

• Police – 7 per cent

• Quangos – 7 per cent

• Education – 4.5 per cent

• Publicly-owned companies – 2 per cent

• Others – 4 per cent

As of March 2006, the Commissioner had made 155 decisions, but of these only 23 per cent (36) dealt with exemptions while 77 per cent (119) involved procedural issues such as a public authority failing to reject the request properly (i.e. not issuing a proper 'refusal notice'). This is troublesome because what we all want to know is what sort of information should be disclosed. The public wants to know this, but so, too, do public bodies. For example, it took the Commissioner almost a year to decide that restaurant inspections should be made public even though he was aware this would be a test case. In the meantime, hundreds of councils across the country spent tens of thousands of pounds consulting their lawyers on this issue.

It's worth noting that in Scotland, which has its own Commissioner, 120 decisions were made in the same time period of which 54 per cent (65) dealt with exemptions and 46 per cent (55) were about technical issues.

One of the few powers the Commissioner has, besides making rulings, is to issue practice recommendations that set out how public bodies should respond to certain types of requests. Yet by March 2006, the UK Commissioner had not issued any. He can also issue enforcement notices, demanding compliance on a certain issue, but none of these were issued either.

There is also a danger that in an effort to offload as many cases as possible, the Commissioner is using informal resolution or rejecting cases that he classifies as academic. An 'academic' case might be one where there are no steps he can take to remedy a breach of the Act, for example because the information requested has already been released, albeit late. The problem is that no formal record exists of how the cases were resolved so members of the public who may be in an identical situation don't benefit. Of course, if similar cases come to the Commissioner, one would expect they would be dealt with jointly, but this has not always happened.

Matthew Davis, news director of John Connor Press Associates Limited, was one of the first people to take his appeal to the Information Tribunal after the UK Commissioner upheld the National Maritime Museum's refusal to disclose to Davis the cost of a public sculpture. His impression of the Commissioner's Office, shared by many with cases under review, was of an office in disarray with poor management. 'One of the first cases I sent to the Commissioner's Office was lost,' he told me. 'I only discovered it when I received an acknowledgement letter for another complaint. When I called up they said it had been lost and that I'd need to re-send the file, so I did – this time by registered post.' Many of the Tribunal's early rulings were highly critical of the Commissioner's investigations and processes. Letters were often lost in the system and investigators failed to talk to either party in the case.

A further indictment came in June 2006 when the Information Commissioner was forced to issue the first decision notice against his own office for failing to comply with the Freedom of Information Act. Friends of the Earth brought the complaint after the Commissioner failed to follow both the legislation and code of practice in response to their request for information.

It's illegal for us to release that to the public

The most striking evidence of the culture of secrecy operating in the UK is the existence of more than 200 laws making it an offence to release information to the public. These prohibitions on disclosure cover all manner of things and there is no regard for the public interest. The Official Secrets Act is probably the most notorious prohibition on disclosure but there are many more such as section 21 of the Fire Precautions Act 1971, which makes it a criminal offence to publish fire safety inspection reports! Part 9 of the Enterprise Act 2002 could be seen as making it illegal for councils to give out any information they hold on businesses even when those businesses are dangerous to the public (see Chapter 13 for more about the Enterprise Act). Normally, new legislation, such as the FOIA, amends the old automatically, but government officials were so worried about freedom of information they created an exception whereby the old laws had precedence over the new. They are a major obstacle in advancing openness. They are also superfluous in light of the many and broad exemptions in the FOIA.

The first Parliamentary Order to amend these prohibitions was made in November 2004, affecting just eight pieces of legislation, and came into force on 1 January 2005. But a second Order to address the remaining 200+ laws remains outstanding. It should have been published on 1 January 2005, but was deferred to March 2005 and then delayed indefinitely. Even finding all the laws has been a task that has kept the Department for Constitutional Affairs busy for more than five years.

One way to avoid this obstacle is to frame your request as an environmental question. That way, it is covered by the Environmental Information Regulations 2004. This law is the domestic version of an EU Directive and EU law supersedes all domestic legislation. So EIRs override these prohibitions on disclosure.

We don't hold that information

If a public authority comes back to you saying they don't hold the information you want, you should ask them why. Is it because someone else has it? Is it because it's been destroyed? Or perhaps it's simply lost in a basement of boxes! FOI has highlighted what is often an appalling state of records management operating in many public bodies. If the information you want can't be found, or was destroyed, then you should probe the public authority for more information. They should be able to provide an audit trail for the destruction, and if they can't, then you are right to be suspicious.

The Code of Practice issued under section 46 of the Act (I mention it by name, only because it's a useful reference) states that:

An authority should have in place an overall policy statement ... on how it manages its records, including electronic records. This policy statement should provide a mandate for the performance of all records and information management functions ... and provide a framework for supporting standards, procedures and guidelines; and indicate the way in which compliance with the policy and its supporting standards, procedures and guidelines will be monitored. [6.1-6.2]

(Continues...)

Excerpted from Your Right to Know by Heather Brooke. Copyright © 2007 Heather Brooke. Excerpted by permission of Pluto Press.
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Dettagli dell?edizione

• Editore: Pluto Pr
• Data di pubblicazione: 2006
• ISBN 10: 0745325831
• ISBN 13: 9780745325835
• Rilegatura: Copertina rigida
• Lingua: Inglese
• Numero edizione: 2
• Numero di pagine: 309
• Contatto del produttore: non disponibile