— Richard Orange contibuted with this article.
We didn’t have the Freedom of Information Act (2000) when I was the political reporter at the Lincolnshire Echo and a reporter for the Western Daily Press, during the 1990s.
We didn’t have recourse to FoIA while I was freelancing in the early noughties, even though the legislation was on the statute book. The provisions and entitlements to data didn’t kick in until January 2005.
Would it have made the job of checking up on public authorities, politicians and bureaucrats easier if we had a self-standing legal right to information locked away in council, police authority, health service, government agency filing cabinets and guarded by people that journalists love to regard as “news management zealots” and “censorship obsessives” with some great scandal to hide”? Undoubtedly. But, it could have made us rather too lazy.
The lack of FoIA didn’t stop us breaking some great stories. There were (and still are) other laws on the statute book providing a ‘right to know’ – if you are familiar with where to look and how to obtain facts and answers.
Pre-FOIA investigations were a ‘game’ of ‘cat and mouse’. We understood why the politicians and officials would dig in their heels and simply refuse to supply information that they knew would lead to a big splash in the paper the following day. Succeeding in getting the information was an achievement and a triumph. We’d run a ‘strapline’ under the story, saying: “This is what the council didn’t want YOU [the reader] to see”!
There was a memo from one official to a local politician complaining that [he] “didn’t want to see a repeat of a situation where we [the council] had handed over a bad news opportunity to the press” and a copy of a particularly interesting invoice where a bureaucrat had scribbled a note “better check this with [another named officer] because Richard Orange will no doubt want to get hold of it and then comment with his political hat on”.
This is the point. We were able to use other laws and methods (quite legal) to uncover the truth. The trick was in knowing what information we were entitled to obtain. Bureaucrats often use the Data Protection Act to withhold information which ought to be in the public domain, but the fact is that this statute provides people who are the subject of data held by public bodies with a right to see the material and, if need be, to go to court to force the bodies to delete or amend inaccurate data. The same applies to medical records held by hospitals.
If the information sought relates to local politicians’ expenses claims, consultancy contracts, and official written records of formal Town Hall meetings, we didn’t need FoIA. We were entitled to the material under separate Local Government legislation.
After Alan Shearer played his first game for Newcastle at Lincoln’s Sincil Bank (a pre-season friendly) we used non-FoIA means to obtain a ‘secret’ list of guests who had been invited to the council’s executive box, ostensibly to discuss “trade union issues”, and the amount the taxpayer had spent on corporate food and drink during the game. It made a big story in the Echo and caused a political rumpus in the run up to the 1997 General Election campaign, partly because the council had gone to lengthy steps in order to stop the information getting into the public domain.
This is not to say FoIA would not have proved its worth had it been in place well before 2005. There were plenty of occasions where enquiries met a brick wall and stonewalling from public bodies. Some were determined to push us off one angle in favour of a more PR-friendly line, in a way that would not be tolerated by the Information Commission’s FoIA appeal panel. Thus, when I wrote to a local education authority (LEA) requesting details of which schools were subject to any special measures in order to contrast (NB: not to ‘balance’) a press release-fed story applauding the department for its “fantastic” achievements in getting several schools into the upper echelons of national league tables, the response was next to useless.
The headline-sensitive bureaucrat passed a message back, suggesting “our readers” would be “more interested” in a feature about a school which had been in special measures, but was now doing very well.
This is where FoIA would have acted as a safety net. We would have had a right to the information we wanted, not the version the LEA preferred, because a list of schools in special measures is not covered by any of the multitude of disclosure exemptions which government and local authorities have grown so fond of quoting back at reporters.
In such circumstances (where there is no other rule or law requiring the public body to release the data) then FoIA can act as an effective and persuasive Ace in the sleeve. But it is not a card to be played at every opportunity. It can foster laziness, where FoIA is the citizen’s first, not last, tactical gambit.
Remember the furore over MPs’ attempts to stop FoI campaigner Heather Brooke getting hold of national politicians’ expenses claims, before the Telegraph got hold of the uncensored files? It just so happens Parliament enacted a law way back in 1972 enabling any person to go along to their Town Hall to inspect records of claims filed by councillors, at any time of the year, and to copy the records free of charge.
Why use the FoIA to get this material? The public body can, quite reasonably, refuse. The FoIA contains an exemption saying if the information is available from other means then the request can be rejected outright. The council can argue, quite properly, the cost of supplying the information is excessive and can (reasonably) request a fee. The public body can, quite fairly, redact information if it relates to personal data. That’s what the Parliamentary authorities did with the official versions of MPs’ claims.
Far better to do some homework and demand the material under a different piece of legislation. It may be that you can get hold of the material the following day – and not have to wait 20 days as is the case with any FoIA request.
This is where FoIA can engender a lazy attitude. It is easy to make a request. It can be done by email – much less time consuming than walking down to your local Town Hall, but it is a passive affair. It is tempting to sit back and wait for a response rather than go knocking on doors in the meantime. Results can be deceptive. If a request is made to several public bodies, some may answer and others may not. Some may store information in different ways or record data by different methods and criteria, so what comes out of the exercise may be unreliable.
The FoIA has provided ordinary taxpayers, voters and journalists with an important means of holding public bodies to account, but the legislation should not come at the expense of surrendering other rights to information. Major scandals were uncovered prior to FoIA, and not as a result of illegal hacking into people’s mobile phones or their email inboxes. FoIA is a safety net, but not an alternative to walking the walk. Getting to the truth still requires that you traverse the tightrope.