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Freedom of Information v Open Government

Transparency advocates may find it bizarre that a report on open government fails to discuss the Freedom of Information Act (FOIA). The omission of FOIA is no accident, writes Lucas Amin, who suggests the government may try to hamstring the act while championing an alternative transparency agenda.

A bold report from the Cabinet Office suggests the UK is leading an open government revolution. Open government, its authors state, “provides an essential foundation for economic, social and political progress”, before restating the Coalition’s desire to become “the most open and accountable government in the world”. But concealed in this seemingly benign report is a threat that could yet impoverish accountability.

There is no meaningful mention of the Freedom of Information Act (FOIA) in the government’s new vision of “open government”. Instead we are enticed with the very different prospect of “open data”. FOIA and open data are different models of transparency and the distinction is easy to explain. Under FOIA, you choose what you want to see. In the open data model, the government chooses what it wants you to see. In a truly “open and accountable” government we would enjoy the benefits of both. But there are fears that the coalition government may quietly hamstring the act while using the open data fanfare to keep up transparent appearances.

FOIA is a rights-based system of transparency. Frustrated by a major decision? Don’t trust a regulator? You have a right to know. You can submit questions, ask to see meeting minutes, and request correspondence and risk assessments. But your right to information is not absolute. There are all too many grounds on which a request can be refused. In most cases however, you can overturn an “exemption” if you can argue that the public interest in disclosure outweighs the harm that would arise.

In contrast to FOIA, the open data initiative is a process in which the government identifies datasets that are suitable for release and publishes them online. But the release of data is at the government’s discretion. The report states: “Our default position is for data to become open where it represents value for money for taxpayers, unless there are robust legal (including Freedom of Information (FoI) Act), security, or financial complexities.”

What are these FOIA “complexities”? This is a reference to the 24 exemptions to the duty to disclose information. The exemptions cover most eventualities, including harm to an individual’s commercial interests, data protection, health and safety, as well as government business, such as policy formulation, international relations or the rule of law. The restrictions in FOIA will prevent the proactive release of genuinely important information. Meanwhile we will be inundated with anodyne data, free from “complexities”.

Worryingly, the Cabinet Office scarcely complies with FOIA rules. Ministry of Justice statistics show how it has one of the worst compliance records of any government department. Out of the total “resolvable requests”, only 28% of requests were granted in full compared to 57% of requests withheld in full (page 31). Chris Cook, the Financial Times journalist, recently wrote about how the Cabinet refuses to engage with his requests. So what trust can we place in the Cabinet Office, which pays little respect to its statutory transparency obligations, to proactively publish information that will facilitate the “economic, social and political progress” that it speaks of?

We need a rights-based system of transparency because the government is not going to land itself in hot water. Would Parliament have voluntarily disclosed information about the MPs expenses claims? Would the FCO have published memos showing it met Shell and BP six months before the UK declared war on Iraq to discuss how to get “a fair slice of the action for UK companies in a post-Saddam Iraq”? Would ministers have decided to post details about their correspondence on sensitive government policies with Prince Charles on departmental websites? These stories, which have all informed the electorate and changed the way we think about our government, would never have arisen in an open data system.

This coalition does not like embarrassing releases of information. In 2012, the attorney general used his powers to veto disclosures four times. Only three had previously occurred in the entire history of FOIA. Last year the Ministry of Justice reviewed FOIA and concluded that the Act “has been a significant enhancement of our democracy”. David Cameron told this review that FOIA “furs up” the arteries of the government. And the government’s response ignored most of the review’s key points.

Many were then surprised that the Queen’s Speech did not include a bill to amend FOIA. However, information rights blogger FOIman has observed that the government could cripple FOIA by amending the fees regulations. This would avoid the need for primary legislation and possibly even a consultation. In this context the open government report’s silence on FOIA looks ominous. A response to the Cabinet’s report by the influential Open Government Civil Society Group, a coalition of 21 NGOs, is published in its appendix. Their response calls for improvements and extensions to the Act. The group, which includes players like the Campaign for Freedom of Information and Transparency International, will hope to extract assurances on FOIA after the consultation, open to all, closes on 19 September.

Open data is a good idea but it cannot stand in for statutory right of access. A combination of both would be ideal, but signals suggest government favours substituting one for another.

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