Freedom of information gets caught in the spin

Donald MacIntyre not-so-open government
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The Independent Online
Most of what Tony Blair apologised for on Sunday had to do with information. In hindsight, he didn't think that it was a good idea to dribble out the facts about Bernie Ecclestone's pounds 1m donation to the Labour Party, under pressure, and at the rate of one new fact a day. (He was right.) And hey, yes, of course he was prepared to publish the note taken of his meeting with the Formula One boss. No problem - except that here the Prime Minister issued an interesting caveat. Not once but twice. This wasn't, he emphasised, to be regarded as a precedent. Otherwise, as he pointed out, "people will be asking me to publish everything". Perfectly sensible, of course; civil servants, and quite a lot of other people, would be understandably horrified if they thought that every time the Prime Minister got some bad headlines he was planning to publish details of his recent private meetings to still doubts of any jiggery-pokery. But could it also just be that a corner of his subconscious mind was focused on quite an intense debate going on in the higher reaches of government over just how much it should be prepared to disclose about its internal deliberations?

For negotiations on next month's Freedom of Information White Paper are coming to a head. This is a big step. At the most unglamorous level, next year's Bill will underpin existing rights, and afford some new ones, to information about the sort of humdrum administrative decisions that don't make headlines but matter intensely to ordinary people. Why hasn't Medicine X been banned? Why hasn't Community Centre Y been granted a drinks licence? Why has new development Z been given the go ahead on my doorstep? What does the environmental inspection report really say about the chemical factory at the end of my road? It should widen the right of access to those of your personal files held by - for example - the DSS or the Inland Revenue or the Police, which are not on computer and therefore not covered by the Data Protection Act. It will also give new force to the obligations imposed on departments by the non-statutory Code of Access to Government Information, established by John Major's government. It will probably create a new Information Commissioner who will be able to weigh any possible damage from a particular application for disclosure against the public interest. And it will extend the obligations to local authorities and dozens of powerful quangos and nationalised industries. So, surely, a liberal culture-changing measure in all respects?

Well, all but one, actually. For ministers have now started to baulk at the prospect of even a heavily qualified right to see information in the category of exemption described in the Major code as "internal discussion and advice". Which means pretty well every piece of paper, however impersonal, that passes around Whitehall in the run-up to a decision. The majority on the committee appear to have accepted the hoary old argument that the possible release under the Freedom of Information Act of any advice drawn up by officials will, in the words of the Major code, "inhibit the frankness and candour of internal discussion". But even the Tory Cabinet Office minister Roger Freeman made it clear that if the harm from disclosure was outweighed by the public interest, then such material could, at least in theory, be published. The fear among liberals now is that when the code, or rather a version of it, becomes statutory, the whole category of such information will be subject to blanket exclusion. So in one respect the new bill would actually be less progressive than the much derided Major code.

Now the "candour" argument should be taken with a large pinch of salt. Nobody seriously believes - say - that anyone is going to be required to disclose a minute from Jonathan Powell, Chief of Staff, to the Prime Minister saying: "I know it's nuisance but we've got to see Bernie Ecclestone because we're into him for a million and it's the least he expects"; or alternatively one in which he says: "For God's sake don't see Ecclestone. This will be trouble which will only blow up in your face." But Action on Smoking and Health, or anyone else for that matter, might reasonably at some point in the future ask to see the analysis of the policy options made in October/November 1997 on whether or not to support the exemption, including the DTI's analysis of how many and what sort of jobs would have been lost if Formula One went out of the country. That sort of subsequent disclosure doesn't compromise civil servants; but it may well make for better decisions. And while we're about it, who would have been damaged by publication of the Treasury's long and thoughtful look at itself last year? It was the fact of the leak, and not the content, which made it a sensation.

In Australia senior civil servants were deeply worried about precisely the "candour" issue. Since the Freedom of Information Act there, they have admitted it hasn't been a problem. All sorts of other arguments will be used in favour of the restrictive, conservative approach. One is the cost of dealing with FOI applications - though this could be allayed by charging a higher differential rate for business applicants and, perhaps, diverting some of the Government's press and publicity officers to Freedom of Information duties. Nor, by the way, are we talking about immediate disclosure. It wouldn't even affect the new higher art form of democracy, news management. In most countries where there is an act, the commissioner or his equivalent routinely rules against disclosure on "harm" grounds if it would affect an issue then in the headlines. Any Information Commissioner is bound to weed out the material that compromises civil servants or undermines collective Cabinet responsibility.

The most interesting question may be which way Lord Irvine, who is chairing the committee, leans. At present, according to some accounts, Jack Straw is influential at the hawkish end of the argument on the committee, a rather lonely David Clark at the other. Mr Clark, regularly tipped as a Cabinet casualty, and with an unnecessary penchant for first-class air travel, may not be the most charismatic of politicians. But that doesn't necessarily make him wrong. Unless the Bill holds out the possibility for publication, in due time, of some internal advice, it will miss a big opportunity for an incremental but worthwhile government reform; it will also mean that ministers will come under continuing and tiresome pressure to do more. For what a more open regime - allowing publication of limited policy discussion within the lifetime of an administration, rather than when 30 years have elapsed - may well help to achieve is better, more thoughtful, government. And, funnily enough, good governments tend to last longer.