08.03.07 Look
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“Freedom of information” has been a positive
human-rights reform of the present UK government, but it wants to “put
the genie back in the bottle.”
The national union of journalists (NUJ) believes that the government’s
proposed amendments to the regulations on fees for the freedom of information
act (FOIA) are arbitrary, devious and unfair.
The NUJ, the UK’s largest journalists’ organis-ation, with
38,000 members working across all sections of the media, has been promoting
freedoms of expression and information since its formation 100 years ago.
The union had campaigned for FOIA, in line with the policy of the Labour
and Liberal Democrat parties, since the 1970s, and we warmly welcomed FOIA
when it was introduced in the UK in 2000, even though campaigners said that
it was too weak and were concerned that implementation was delayed for five
years.
We are pleased with how FOIA has been used. Some people had worried
that journalists would not fully use its potential, owing to the oft-remarked
decline of investigative journalism in the UK media.
But we have been gratified by the extent to which FOIA has been taken
up, particularly in the local press, which we think has, in recent years,
been falling short of its duty to keep its communities well informed. This
trend has been caused by drastic reductions in editorial spending by the newspaper
chains that control virtually the entire sector. Reporters were increasingly
confined to their offices.
However, FOIA has provided a means to help the local press maintain
its role as providers of inform-ation to the public. The government’s
proposals would gravely imperil this function.
Jeremy Dear, NUJ general secretary, said: “The act has been enormously
useful to journalists wanting to dig deeper into the institutions running
our democracy and has helped them reveal uncomfortable truths, about which
the public has a right to know.”
“Now we are seeing a backlash from the powers that be, who have
found the reach of the act has shone light into areas they would prefer to
remain in the dark.”
The department for constitutional affairs is propos-ing to allow public
bodies, in deciding whether to refuse a FOIA request because it is deemed
too onerous, to include assessments of cost for various activities currently
excluded. These extra costs would be the time spent by officials and ministers
“examining” material, “consulting” about whether to
disclose it, “determining” whether any exemption applies to information
requested, and “reaching a decision” on whether any such exemption
should be applied.
A central government department can refuse a FOIA request if it assesses
the cost of compliance would exceed £600: for other public bodies, the
limit is £450.
The government is also proposing to “aggregate” requests
from any one party. This would mean that the limit applies to the estimated
cost of complying with all requests that one party makes to a single public
body within a period of 60 working days. This would particularly hit newspapers.
The proposals to undermine the opportunities that FOIA has presented
to citizens are utterly unjustified. Other restrictions on civil liberties
have been justified by the “war on terror”, the fight against
organised crime, restricting immigration and so on – and even these
are open to question. There is no such consideration with “freedom of
information”. The NUJ can see little more to be gained from the proposals
than bureaucratic convenience.
The effects of aggregating requests from one party would be entirely
arbitrary. Whether an organisation or individual can seek public information
would depend on when they made their last request to the public body concerned.
This would clearly be serious for campaigning groups whose requests
tend to go to a limited range of public bodies. This restriction on the use
of FOIA by campaigning groups, acting in their own interests, is itself unjustified:
a true democracy must to be prepared to tolerate people who make things difficult
for agencies of the state.
But the move would have an equally serious effect on the media. The
proposal makes no distinction between campaign groups and the media, whose
function is very different. This may have been an oversight, but it is a serious
one; even if journalists do make nuisances of themselves in their quest for
information that officials would rather keep hidden, there is a significant
difference of purpose. The aim of the media is to provide information to the
public rather than pursue a private or sectional interest. Surely, the government
can grasp this distinction.
The NUJ’s opposition to the proposals focuses on issues that
directly affect our members' ability to fulfil their professional duty to
inform the public about the activities of their elected representatives and
officials working for public bodies.
Journalists are experienced in seeking information. Compared to most
other categories of requestor, they know what they want and are knowledgeable
about how the public bodies concerned operate and how they hold information.
As they make repeated requests to the same public body, they learn
to frame their requests more precisely to minimise the effort required to
answer them.
There is a rare unity among the various elements of the media –
publishers, editors and reporters, employers' associations and unions –
that the proposals would be unfair in principle and damaging in practice.
The impact would be on every area of the media. First, much of the
good work that local media has carried out using FOIA would be undone because
its requests tend to go to a restricted range of public bodies in their areas,
such as councils and health bodies.
Second, specialist reporters would find themselves suddenly unable
to pursue a lead with a public body in their areas of expertise. They have
been effective FOIA requestors because they have been able to direct well-targeted
requests on subjects that they know well. They would be unable to do their
jobs properly, and would be prevented from filing requests that other parties
would be at liberty to submit. That would be a blatant injustice.
Third, many freelance journalists would be pre-vented from carrying
out some of their work. Many freelances specialise in areas of reporting that
mainstream publications may not have covered by in-house staff. They are commissioned
regularly by editors, but will find themselves losing work if the proposals
are adopted.
A specialist writer whose requests have hit the appropriate limit would
have to turn down commissions for work that might rest on FOIA requests –
for 60 working days. Other journalists, who have less expertise in the area
concerned but who have not made FOIA requests to the relevant public bodies,
might then take the work instead. The expert journalist who has put years
of investment into developing a specialism would be unfairly disadvantaged.
For such journalists, the proposals would be anti-competitive, a restraint
of trade: they would be deprived of work through no fault of their own.
In the days before FOIA, the NUJ’s attention had been drawn to
the phenomenon known to journalists as “grey-listing”, where authorities
and agencies tried to obstruct enquiries from journalists whose work they
found uncomfortable. Public bodies would stop press officers responding to
enquiries from certain journalists, whose enquiries were to be referred to
managers. The practice was time-consuming and unproductive for all concerned.
The health and safety executive is an example of a public body that
used this practice: four journalists who were being subjected to this treatment
brought in the NUJ to take up their cases and improvements were secured. The
NUJ believed that such days were past. It does not want to see a repeat of
a regime in which some journalists making enquiries to government agencies
are less equal than others.
Journalists would be forced to carry out surrep-titious requesting
should the proposals come into force. Friends and relatives might be lined
up to file requests on behalf of journalists whose ability to work had been
blocked by the cost of requests they had submitted in the past. This would
be akin to the use of “fronts” to submit scripts to film producers
on behalf of banned writers in the McCarthy period in America.
And, at the other end of the spectrum, large media organisations, such
as the BBC and national newspapers, would find it impossible to conduct proper
FOIA research. A journalist on, for example, a newspaper could be prevented
from using FOIA to seek information from a public body if someone else from
the same title had made a request within the previous 60 working days to the
same authority.
One productive use of FOIA has been the drawing out of statistics from
public bodies nationwide. For example, the News of the World last
January published the results of a nationwide survey on the number of convicted
paedophiles living at unknown addresses, carried out through FOIA requests
to each police force in England and Wales. If the newspaper happened to have
made a FOIA request calculated to have cost up to £450 by one police
force in the previous three months, then it would have been impossible for
that newspaper to have carried out the survey.
Media organisations have invested resources in specialists to use a
law introduced to make government more accountable to the public. They are
helping to make it work. Why should the government be trying to undermine
its own law?
On the costing proposals, the government’s research shows that
a small proportion of requests took a disproportionately large amount of time.
This is hardly surprising, and the assumption that this makes them problematic
must be challenged. It can be relatively simple to supply a single piece of
information of personal interest to an individual, and procuring information
of greater public importance to large numbers of people is likely to take
longer.
The work of journalists in bringing out information of public importance
is a crucial element of “freedom of information”.
A major fault in the proposals is that this public interest is nowhere
taken into account. The government gives an impression that “freedom
of information” is a luxury that cannot be afforded, rather than the
essential component of our democracy that it is becoming. The NUJ believes
that a fair assessment of the effort required to meet requests must consider
the public interest.
There is a further cost element that has not been quantified: the savings
to the public resulting from, in particular, journalists' requests. When inefficienc-ies
in the provision of public services are revealed, the authorities concerned
are pressured to make savings, but there seems to have been no attempt to
take this into consideration. The estimated saving of £11 million a
year over the whole of the public service seems a tiny amount.
Research by the charity, Public Concern at Work, calculates that £12.2
million is the cost of just one official in each of the public bodies subject
to FOIA to read the new rules and guidance restricting requests.
In this context, the introduction of consideration and consultation
time into the cost assessment will be misleading and unfair. An authority
that resents requests in a certain area would be able to declare costs that
in reality do not apply, because they have considered, consulted on and researched
information in the area concerned already.
There have, at least, been ministerial assurances that implementation
of the proposals, which the government had indicated would be introduced in
mid-April, will not be rushed. And I am confident that careful consideration
of the responses will lead to the draft regulations being abandoned.
Tim Gopsill is editor of Journalist, the NUJ’s magazine
for its members.
Comment on this article
Why
ministers’ attempt to foil FOIA needs to fail
Government
set to break promise to MPs on FOIA
Ministers consider changing
FOIA charges regime
MPs: FOIA regulator must
become more ‘assertive’
Ministers
deny plans to increase FOIA charges
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