Many coalition policies have New Labour foundations – but on transparency, the PM has ignored Tony Blair’s warnings. Colin Marrs asks how the transparency agenda will interact with a revised Freedom of Information Act

Former prime minister Tony Blair will probably not, it is fair to say, be remembered for his contrition. However, in his autobiography A Journey he did voice some regrets – one of which concerned the Freedom of Information Act 2000. Claiming the law has disrupted candid discussion within government, he wrote: “There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it.”

Blair’s disdain for the Act is not, apparently, shared by his successor David Cameron. In the wake of the MPs expenses scandal, Cameron boldly stated that “the starting point for reform should be a near-total transparency of the political and governing elite, so people can see what is being done in their name”. In January, the coalition outlined plans to strengthen the Act. And it is going even further to promote transparency by cajoling all government bodies to proactively publish their data.

Richard Thomas, who served as information commissioner between 2002 and 2009, welcomes this commitment. “Blair’s comments disappointed me and I don’t think anything in the book justified them,” he says. The Act, he argues, has in fact produced a positive culture shift within the public sector. Prior to 2000, “it was not in the culture of public administration to share information publicly”, he says. “However, now most have realised that the world does not fall apart if you are more open with information.”

Thomas says that the legislation has increased public sector accountability. But he admits the system has not been perfect. An increasing amount of time is taken up by civil servants dealing with frivolous requests, or from journalists and researchers using the system to conduct cheap research. In September last year, trade union UNISON attacked the Taxpayers Alliance for wasting millions of pounds by submitting questions to 1,200 organisations in one go.

Meanwhile, many bodies performing public services – including Network Rail and housing associations, which spend billions of pounds of public money – are not covered by the Act. Maurice Frankel, director of the Campaign for Freedom of Information, says that the coalition’s push to outsource the delivery of more services will compound this problem. He says: “In the NHS, there is going to be a massive fragmentation of services and we are going to have a major accountability deficit.”

In January, the coalition government announced proposals to increase the number of bodies covered by the Act. Frankel calls the reform minor, and bemoans the fact that the plans don’t include extend coverage to Network Rail – despite promises made in opposition by both the Conservatives and Liberal Democrats. However, the Ministry of Justice (MoJ) has also announced that it will conduct a major review of the FoI regime later this year, which is likely to result in a more significant shake-up.

January’s reforms included plans to amend the Act to ensure that public bodies provide data in a “useable format”, making it easier for “armchair auditors” to hold government to account. Frankel says: “This closes a loophole whereby public authorities were previously publishing data in pdf format, which made it extremely difficult to analyse the results in a meaningful way.” Civil servants will be expected, wherever practical, to prepare documents in spreadsheet computer programmes such as Excel.

However, a government FoI officer who blogs under the name of ‘FOI Man’ argues that this reform could be achieved without changing the law: “You could achieve this by simply updating the code of practice or guidance to public bodies,” he says. “Or just by ministers making it clear that they want it to happen. Adding it to the Bill seems like a gimmick.”

The Cabinet Office business plan, released last year, also contained a raft of measures to encourage the proactive release of data by public authorities. It requires the publication of salary details for senior civil servants, along with all spending of more than £500 by local councils. In addition, all central government tender and contract documents worth more than £10,000 will be available to view on a new website.

Thomas points out that much of the drive towards proactive publication is evolutionary rather than revolutionary. He says: “The FoI Act already required that public bodies produce a publication scheme outlining what information should be published.” However, he welcomes the new impetus, which has already resulted in the publication of a number of tenders plus spending details from almost all local authorities (though Nottingham City Council is resisting the communities department’s blandishments).
 
The business plan measures, however, will not be set out in legislation. Hazel Grant, a partner at law firm Bristows and an expert on FoI, says that the imprecise language and lack of definitions in the business plans are leading to confusion and different interpretations around Whitehall. Her company, she says, has just acted for a private business concerned that departmental officials intended to publish a supplier contract without excising commercially confidential data. “It took a lot of persuading before the department removed any items which would be ‘exempt information’ under a Freedom of Information request,” she says. “The officials believed they should publish everything.”

Despite such enthusiasm for transparency in some parts of government, Grant believes that there is no prospect of these proactive publication measures lessening the importance of the FoI legislation any time soon. “Although proactive disclosure is to be welcomed, it is the government which defines the information to be released,” she says. “The Freedom of Information Act puts power more directly into the hands of citizens who want to find out information relevant to themselves.”

FOI Man agrees: “The danger is that they put all this data out there and then say: ‘Well, we’ve been really open. Now you don’t need to ask us under FoI’, and they start to curtail that right” he warns. “That would be bad. If the government’s idea of transparency is proactive disclosure alone, they have the choice of what to disclose and how much they put out there. FoI requests are a really powerful tool, and people should defend the right to make [requests] fiercely.”

Current information commissioner Christopher Graham has stated that he expects the number of FoI requests to drop as a result of proactive publication. However, Frankel warns that it could actually lead to more requests: “At the moment, you can’t make head or tail of the data being released, because it is defined by very broad categories,” he says. “To get any real value from it, you need to make a request using FoI powers on top”.

When the Greater London Authority started releasing more data, adds FOI Man, the number of requests continued to rise: greater transparency “could increase requests, as the data stimulates questions”, he says. With public budgets falling, hostility to FoI rules could intensify among civil servants: “One of the biggest reasons why public officials are sceptical about FoI is that they’re concerned about the extra burden it places on them,” he says. “If there are less of them and requests continue at their present level or even rise, that burden will be greater.”

The best way to head off a rapid rise in FoI requests, says FOI Man, is to “ensure that openness and transparency are built into processes”. And Thomas agrees that the transparency drive could end up saving the government money here. “A large proportion of the costs for the public sector surrounding Freedom of Information go on the legal costs of fighting requests,” he argues. “If the default position is openness, then we could well see fewer challenges.”

The future of the FoI Act will depend as much on the attitudes of ministers as the forthcoming MoJ review. Cabinet office minister Francis Maude, communities secretary Eric Pickles and justice minister Tom McNally have aggressively pursued the transparency agenda; it is hard to see them rowing back on Freedom of Information. But McNally has admitted that others – including his boss, justice secretary Ken Clarke – are less enthusiastic. As Frankel says: “The great unknown in this debate is how strong is the attitude of other ministers who are getting FoI requests they don’t like.”

Written by Colin Marrs