On January 8, 2005 Dr Peter Bowbrick, inspired by the Freedom of Information
Act (FoI) that had just come into force, decided to use this great new tool
of open government to find out how the decision had been taken to close his
nearby state school.
He believed that the premises of Margaret Glen-Bott school in Nottingham had
been wrongly handed over to a faith school that he suspected of practising
“hidden selection”: “giving away a school worth £30m for just £1”.
He sent an e-mail to Alan Stead, the council official in charge of inquiries
under the act. Nearly a month later, rather than the 20 days stipulated, he
received a reply from a different council officer telling him that he should
be satisfied with what he had already been sent.
Bowbrick was puzzled; he had received nothing at all. He wrote back to tell
them so. A week later a council solicitor replied telling him that the
details were “in draft form” and therefore exempt from release under the
act. The council had no other information. If he liked, he could complain to
the information commissioner.
Unsurprisingly, he did. It didn’t do any good. Richard Thomas, the
commissioner, accepted the council’s word. His office issued a notice in
July upholding its refusal to do any more. Three weeks later it reissued the
notice this time correctly referring to Nottingham city council, not
Cornwall county council.
Bowbrick was getting a bit annoyed by now. He decided to take the case to a
tribunal. The tribunal ordered the city council to produce any documents by
August 29. It didn’t. Only in October, when ordered to a hearing, did the
council promise to cooperate.
Bowbrick offered to go and help it find the relevant pieces of paper. The
council told him not to bother and at last sent him a few details.
Encouraged, he replied with 18 pages of specific questions.
The council didn’t reply. Officials were summoned to a new hearing in
December, by when they suddenly managed to locate more than 1,000 relevant
pages. There turned out to be more. Much more. It became clear from sworn
testimony that some 3,500 pages in the council education department alone
had been quickly collected and could have been handed over. Instead their
existence was denied.
The tribunal found in Bowbrick’s favour and ordered the council to pay costs.
He is still waiting for his money but has given up hope of seeing the rest
of the documents: “I have worked [as a consultant economist for the United
Nations and other bodies] in 30 countries, including Vietnam when the
communist regime was at its strictest, and never encountered government
secrecy as tight as in Britain.”
Now, despite Lord Falconer, the constitutional affairs secretary, hailing it
last week as “the single most significant act of any government in improving
transparency, accessibility and accountability”, he is about to introduce
new regulations that critics believe will strangle a piece of legislation
already in danger of being suffocated by bureaucracy.
The commissioner, who admits to a huge backlog of complaints, is due to
address a Commons select committee on the impact of proposed new regulations
on March 20.
According to Maurice Frankel, director of the Campaign for Freedom of
Information, “a large part of government never really bought into the FoI
act at all”. Falconer last week complained that the government had
“subsidised the BBC’s research to the tune of about £1m since the act came
in”. But it is concerned members of the public, such as Bowbrick, who are
most likely to suffer from the new regulations.
According to Frankel, it costs £35m annually to deal with 120,000 requests,
not exactly a fortune for Falconer’s “most significant act of any
government”. The planned changes would cut the bill by £10m, “petty change
as far as government is concerned”.
FoI information is provided free if the cost (calculated at £25 per hour for a
civil servant) of looking it up is less than £600 from central government or
£450 from local authorities. The new proposal, however, would add on the
extra time spent examining the material to see if there are obvious reasons
not to release it — breach of confidence, prejudice to commercial interests
— or if it is exempt from the act. In other words, officials could look at a
request and say, “It’ll take us a long time to make up our minds about
that”, and make that an excuse for not releasing it. Clause 22: Catch 22.
They will also have a new right to “aggregate” requests, so that if a group of
people make separate requests they believe to be “in concert” they can be
denied, as can any one individual making too many requests — even on widely
different subjects — within a 60-day period.
Authorities would gain the power to penalise requesters considered “vexatious”
or “uncooperative”, which Frankel says opens the door to simply ignoring
people who appeal to the commissioner or, worse, “use information in a way
the authorities don’t like”. Which is, of course, often the reason for
requesting it.
John Large, a consulting engineer, is a prime example of someone whose
legitimate business would be severely hit by the new “aggregation” criteria.
Last year Large was asked by Greenpeace to compile a dossier on the
decommissioned Hinkley Point nuclear reactor. He submitted detailed requests
for nearly 300 reports that he knew had been compiled. The file returned to
him had more than 90% of the requests blacked out. “You only ask for
information if you know it exists,” he says. “But it’s frustrating when you
ask for a document you already have and are told it doesn’t exist.”
Large knows about that first hand: in 2001 he was advising the government of
Gibraltar on repairs to the nuclear submarine HMS Tireless, then
controversially docked in the port. He sent a report on the state of the
boat to the Ministry of Defence. When compiling a paper in 2005 he requested
related documents under FoI, including his own report. He was told there was
no record of it: “I was told it was not in the public interest to release
certain information, I asked how they defined the public interest and they
told me it would not be in the public interest for them to tell me.”
According to Large: “The FoI people you get through to tend to be very nice
girls who tell you to call them by their first names, but they’re just
fronting for the hard-nosed bastards.”
The government-commissioned report singles out examples of frivolous
“vexatious requesters” which while calculated to provoke laughter — a
request for the total amount spent on Ferrero Rocher chocolates in UK
embassies, and information on a sweater given to George Bush by No 10 — are
not exactly expecting serious replies.
Quite different to that of Juliet McBride, a seasoned antinuclear campaigner
who spent months trying to get details of risk assessment for the population
of Southampton in plans to create a nuclear submarine berth there.
As a former Greenham Common campaigner she was not surprised to learn the BBC
had discovered that police admitted having to “paper over the evidential
gaps” in cases brought against her co-pro-testers in the 1980s. The source
for the BBC report? Information elicited under the Freedom of Information
Act. It is not all bad news. Yet.
