Robert Hazell: Fear of information stalks corridors of Whitehall

The Prime Minister's postponement means the Act will come into force in the run-up to the election
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The Independent Online

Panic stations in Whitehall. The Cabinet Office is said to be destroying all e-mails more than three months old, leading the Information Commissioner to intervene. The Budd inquiry shows up the inadequacy of record keeping by ministerial private offices.

Panic stations in Whitehall. The Cabinet Office is said to be destroying all e-mails more than three months old, leading the Information Commissioner to intervene. The Budd inquiry shows up the inadequacy of record keeping by ministerial private offices.

We can expect many more of these stories after 1 January, when the Freedom of Information Act 2000 comes finally into force. It is Tony Blair who insisted on the five-year wait, against the advice first of Jack Straw and then of Derry Irvine, who both argued for earlier and phased implementation, which would have allowed the Act to bed-in by now. Instead, we are to have full implementation in one big bang; and with exquisite irony, the Prime Minister's postponement means the Act will now come into force in the run-up to the next general election.

Ministers are bracing themselves for the worst. But if other countries are anything to go by, they need not be quite so fearful. The UK is going down a well-trodden road, blazed 30 years ago by the US; 20 years ago by Australia, Canada and New Zealand; and five years ago by Ireland. Those countries all show that good government can survive the introduction of FOI. It does not lead to the disclosure of any state secrets: the tight exemptions regime takes care of that. Nor does it lead to a flood of requests at the start. In other countries the build-up has been slow and gradual, albeit with the relatively few requests in the early years coming from journalists and politicians, the two groups of requesters most dreaded by the government.

Most FOI requests are not "public interest" requests of this kind, but essentially private interest requests from businesses, interest groups, organisations and lawyers. A business that tendered unsuccessfully for a government contract will ask to see the winning tender. The TUC will ask to see the minutes of a Whitehall meeting where trade union interests were discussed. Lawyers will ask for a copy of their client's file, to see whether it might be worth litigating.

Few journalists make much use of FOI, because the information comes back weeks or months later, way beyond their copy deadline, and it requires an understanding editor and a lot of determination to pursue an FOI request to the end. Politicians tend to be creatures of habit and will continue to put down parliamentary questions or write letters to ministers as their main means of eliciting information. But in the run-up to the election, the UK's experience may prove to be different. Journalists will not understand the long timescales involved and may bombard the government with hopeful requests. And following experience elsewhere, MPs' researchers may prove to be more assiduous requesters than MPs themselves.

Whitehall is ill-prepared for an avalanche of requests. The Government collectively went to sleep on FOI when Blair announced it had five years' grace. Lord Falconer and the Department for Constitutional Affairs have been doing their best to wake everyone up, but it is not easy when many Ministers are still in denial, and the Treasury has not made new resources available. Because of difficulties in getting collective ministerial approval, the DCA's long-awaited operational and exemptions guidance was published just two months ago. This has led to tensions with the Information Commissioner, and a highly critical report about the state of FOI preparedness from the Commons Select Committee on Constitutional Affairs.

Not for the first time (remember the Dome), Lord Falconer is taking the rap for serious political mistakes made long before his watch. He and his officials have inherited an FOI Act that risks offering the worst of both worlds, to requesters and to officialdom. Requesters will be frustrated by an Act that is exceptionally complex, with 23 separate exemptions to justify withholding information. Officials will be frustrated because they have no new resources to handle FOI requests, which can be very time consuming, and for which they cannot properly charge because of commitments made during the passage of the Act about the fees regime. Only when the costs run over £600 (£450 outside Whitehall) can they decline to process a request.

Other countries have seen FOI starved of resources as Ministers focus on other priorities. The same is likely to happen in Whitehall as departments struggle to make the staffing cuts necessary to implement the Gershon efficiency review. In the run-up to the election the Government will have to do its damnedest to make the current regime work.

After the election, as FOI begins to bite and Ministers begin to understand the resource implications, watch out for the announcement of a review leading to an increase in fees. The review will not scrap the Act: no government has succeeded in reversing FOI, once it has been introduced. But it will seek to minimise the damage. Blunkett's is only the latest scalp claimed by the media, and FOI potentially gives its members a whole new set of knives.

r.hazell@ucl.ac.uk

The writer is Director of the Constitution Unit at University College London

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