Freedom of Information: Britain must learn the lessons of openness from America

The maturity of America's access-to-information rules has helped create public confidence. Robert Verkaik, Law Editor, considers the recent case of Roy Brown
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The Independent Online

In these dark days of restrictions to freedom of information, where government exemptions and redactions block intrepid enquirers at every turn, it is heartening to hear of a case where the right to know has corrected a serious miscarriage of justice.

But this success owes nothing to the newly implemented British law and instead took place in America, whose citizens have enjoyed freedom-of-information rights for more than 40 years.

Roy Brown, 46, was convicted in 1992 of stabbing and strangling Sabina Kulakowski. He had been released from a Georgia prison the week before her death after serving eight months for threatening social workers because of his child-custody case. But he always maintained he had never met Ms Kulakowski. During his trial he was found guilty mostly on the strength of bite marks on her nude body that a prosecution witness linked to Brown.

After several appeals were rejected, Brown filed a Freedom of Information request in 2003 requesting all the documents in his case and found four affidavits relating to Barry Bench, the brother of Ms Kulakowski's ex-boyfriend - documents of which neither he nor his lawyers had been aware.

The affidavits convinced Brown that Bench was the killer. Brown sent a letter from prison to Bench which arrived on Christmas Eve 2003, accusing him of the murder of Ms Kulakowski. Several days after, Bench committed suicide by stepping in front of a train.

The Cayuga County District Attorney James B. Vargason ordered Bench's body to be exhumed to extract DNA, and said new tests showed that Bench's DNA was on the red T-shirt investigators believe Ms Kulakowski was wearing the night she was killed in 1991. Brown was freed after serving 15 years in prison for a crime he did not commit.

His case will inspire many British prisoners who feel a similar exercise in cell-based detective work could deliver their own release.

But America's freedom-of-information laws have had 40 years to settle down. Custodians of the country's vast private-record databases are now fully versed in the rules governing the disclosure of documents and other material. If the same application was made in Britain it is by no means certain that the public official dealing with the request would feel sufficiently confident to release sensitive court documents to a serving prisoner.

Britain's right-to-know law is still in its infancy, while the American Freedom of Information Act was signed by President Lyndon B. Johnson in 1966 and came into effect the following year during the height of the Vietnam War.

Rules governing America's openness culture have been shaped and tested by public scandals like Watergate and "Arms to Iran" so that they are now robust. Federal bodies such as the CIA, which have a history of secrecy, regularly release sensitive material to the public. Much of the evidence relating to torture allegations in Guantanamo has been made available through requests to US security and intelligence services.

It is hard to imagine MI5 or MI6 following a similar line and adopting a policy of proactive disclosure where they face the possibility of censure.

Of course nothing will change until these agencies' political masters accept that they need not fear disclosure rights that Labour enacted in 2000 and brought into force five years later. It may well require our own Watergate, perhaps something like the experience of the "cash for honours" scandal, before ministers are forced to release their grip on the legislation.