JusticeWritten evidence from the Constitution Unit, University College London

Since 2007, the Constitution Unit based at University College London has studied the impact of the Freedom of Information Act on British central government, English local government and Parliament. In all three cases we have looked at whether FOI has met six main objectives set for it by its supporters:

increased openness and transparency;

increased accountability;

improved decision-making in government;

better public understanding of government decision-making;

increased participation; and

increased public trust in government.

We have also examined whether FOI has had an impact on the day-to-day operations of these bodies, either positively or negatively.

Research Methods

Our research used five main methods:

1.Interviews with 56 officials in eight British central government departments, 90 officials and others across 16 local authorities, 30 MPs, peers and officials at Westminster as well as journalists, requesters and campaigners.

2.An online survey of FOI requesters.

3.Analysis of press articles using FOI.

4.An analysis of FOI case law.

5.Analysis of disclosure logs.

The different methods helped measure the different objectives, but each has limitations. For example the online survey of requesters’, while giving an insight, did not achieve a large number of responses. The media analysis similarly is only a “proxy” for how people receive information through FOI.

What Impact Has FOI Had?

Central Government

FOI has made British central government more transparent both in terms of the information it provides and the “culture” within departments. This is despite the fact publication schemes were seen as rather antiquated and poorly used, having been superseded by the webpage and internet search engine.

It has also led to increased accountability, particularly when FOI is used alongside other “traditional” mechanisms of accountability such as the media.

It has not had an impact of any of the other objectives. This is not because FOI has failed. Complex issues such as public participation and public trust are influenced by many other factors. In this sense FOI, as with many policies, was “oversold” by politicians.

If it hasn’t realised all supporters hopes it has not realised the fears of others. It has not had any significant impact on the decision-making process or some of the key constitutional conventions such as collective responsibility. Nor does it appear to have led to a chilling effect (see below).

English Local Government

FOI has made local government more transparent, though to a lesser extent than at central level because local authorities have been opening up since the 1960s. Recent innovations in online publication are beginning to have some impact, particularly third party innovations.

Accountability has also been improved, with FOI often used with other mechanisms (such as the local media or NGOs) to build a wider picture of an issue.

FOI has only influenced decision-making and public understanding at low levels. It has not affected participation and has had no generalisable impact on trust.

Authorities’ key functions have not been changed by FOI. It has had no impact on how authorities deliver services or work with others, though there is tension around private companies working for local authorities and national and local media requests.

UK Parliament

FOI has helped to make the UK Parliament more transparent, and more accountable. It does not appear to have improved public understanding of Parliament, or public participation; nor has it increased public trust, simply because coverage of expenses has overwhelmed any other issue.

Although it has led to the creation of IPSA and a new expenses system, it is not clear how much it has changed Parliamentary culture more generally. FOI has also led to smaller changes over, for example, how MPs pay restaurant bills and the tax status of Peers.

We also looked at whether MPs have used FOI as an accountability tool. While only a small number of MPs, mostly the opposition, use FOI it has proved to be a powerful tool. It has helped to uncover information about a range of topics from visitors to Chequers to extraordinary rendition.

Does FOI have A Chilling Effect?

One possible unintended consequence of FOI may be a “chilling effect”, where decisions go unrecorded or are sanitised due to fear of future requests. Finding hard evidence for such an effect is very difficult as it requires proving a negative and asking interviewees to admit unprofessional conduct. Studies are divided as to whether FOI leads to this. A survey of officials in Ireland found 30% of officials claiming an effect and just fewer than 50% denying it.

The former head of the Swedish National Audit Office, Inga Britt Ahlenius, identified the “empty archives” phenomena in Sweden, whereby “important issues are discussed orally [or] by telephone”. Tony Blair claimed FOI had led to more caution over recording decisions, as did former Cabinet Secretary Gus O’ Donnell.

Our central government study found little clear evidence. FOI was lost amid wider issues around resources, fear of leaks and changing decision-making styles. Many officials were concerned more by the consequences of not having a record than having one. Others felt factors such as leaks or recording style proved more significant. Many felt the “politics” of a decision is “always off paper”.

There was one very clear example, in one local authority, following a damaging FOI request, members no longer commented on drafts in writing. Interviewees elsewhere said care was taken in controversial decisions or negotiations. Most were keen to point out this was not a general tendency and said it had also led to more professionalism in some cases.

It is difficult to draw a firm conclusion due to lack of evidence and the problem of disentangling causal factors. There appears to be no systematic evidence for alteration of records. However, FOI can and has caused a “negative” chilling effect in specific instances, particularly with difficult or controversial topics and in problematic political situations.

Who Is the Requester?

A key problem underlining all FOI analysis is the lack of knowledge about requesters and their motivations. The variable impact of FOI is also down to the variability of requester motivations. The table below is based on estimates of requester types to central and local government from FOI officers.

Requester

Local Government (%)

Central Government (%)

Public

37

39

Journalist

33

8

Business

22

8

Academic

1–2

13

Contrary to the views of Tony Blair, FOI requesters are not predominately journalists. The largest group across central and local government appears to be members of the public, a trend reflected elsewhere. The public consists of a small group of politically engaged with a larger group pursuing issues of “micro-politics” or of private importance.

There was a clear rise and fall of public interest with the news agenda. However, “private” interest requests or issues of “micro-politics” far outweighed them. Many requests were focused, “quite niche” or on “specialised” issues such as a planning dispute or parking fine at local level or access to benefits at central government.

Requesters’ motivations were also diverse. Even the small sample of requesters we found gave a huge variety of reasons for using FOI, from “concern about wasted money” to “curiosity”, “general interest” and personal campaigns against “corrupt” local government. There were also non-political uses “to gather information to inform my decision about buying a property” or a “festival licence”. The sheer variability of requester motivations and use underscores the variability of impact of the Act upon different public bodies.

The Overall Impact of FOI

FOI has met its core objectives at central and local level—Government is more transparent in terms of the information it releases and how it works. FOI has also encouraged pro-active disclosure of a range of information, from salaries to road maintenance.

FOI has also made public bodies more accountable—FOI works well with other mechanisms (such as the media, MPs or NGOs) as a tool to put together information for campaigns.

FOI has not improved the quality of decision-making—FOI has not increased public understanding of decision-making at central government and has little impact on public participation except via “proxies” either centrally or locally.

At local level FOI has increased public understanding of decision-making at a low level, though it is mostly used to get information rather than learn about the decision-making process.

A chilling effect can be seen in a few politically sensitive cases but is not happening systematically.

Superficially FOI does not appear to have increased trust in central government but the data is sparse and points in different directions. However, the effect is very variable for local government. At local level use of FOI is diverse and trust in local government is more heavily influenced by performance and “community visibility”than openness.

“Iron Laws” Of FOI

Some key points about FOI are:

The media has a key influence on the impact of FOI—Not only is the media a key user of FOI (and defender when reforms threaten it) but, given so few people make a request, it is a key conduit for shaping wider perception of FOI. Though government and academics frequently highlight the role of the official and requester, our study demonstrated that the media is an extremely important player.

There is no going back—The FOI Act cannot be repealed, however much the government may dislike it. Interviews and leaked ministerial correspondence showed how much some ministers resent FOI, but it is now part of the framework of government.

Government holds all the cards—Despite its evident discomfort at the continuing pinpricks of FOI, the government remains in a very strong position. It holds the information. It can resist disclosure for years if it wants to play the system and fight appeals.

Both sides will game the system—As in any field of legal regulation, there is scope to game the system. Officials and ministers will play things long if they want to delay disclosure, and they face few penalties for doing so. This was a constant refrain of requesters, especially journalists.

Government will always be seen as secretive—However open the regime, and wherever government draws the line between what can be disclosed and what must remain secret, there will always be friction between government and requesters, especially the media.

FOI never settles down—In terms of bureaucratic routine and a body of case law FOI does begin to settle down after the early years. But at a wider political level it never does and conflict is ongoing.

A few FOI requests cause most of the trouble—The Pareto principle operates in FOI, as in other fields of policy. In the UK and elsewhere (eg New Zealand), a few high profile cases cause disproportionate effort, media attention, public controversy and political pain. Most requests are for “non-political” information.

Officials have nothing to fear from FOI, save for the extra burden on resources, which is the more difficult to bear at a time of staffing and public expenditure restraint.

What Makes FOI Work or Not?

Leadership is crucial to FOI—Senior support improves internal co-operation and mitigates internal resistance. By contrast, nervousness leads to defensiveness and a lack of internal cooperation.

Administrative culture is also important—Resources are vital and are likely to be the Achilles’ heel of FOI. How much FOI “costs” is a difficult issue, with competing methodologies offering competing answers with bias in measuring cost as the benefits are more difficult to measure.

The media are a further crucial influence both in their use and reporting of stories. Pre-existing relations shape this dynamic. Some public bodies experienced heavy and aggressive use of FOI, others none. It seems that only a small proportion of journalists use the Act but they defend it, innovate with it and raise awareness.

Political factors can also have a strong influence—Political balance can be crucial though ideology has little bearing. A secure administration can cope with a damaging FOI request in a way that a party with a small majority cannot. Some local areas or particular departments have high levels of activism or long running controversial issues which often involves the use of FOI.

The final crucial factor is the requester—FOI is built upon one very unpredictable variable: public use. Use varies hugely from the political to the “micro-political” or personal.

The Future

So what does the future hold for FOI?

FOI requires use and political support to flourish and it will be a combination of political support, technological development and use that will determine the future of FOI in the UK.

FOI is increasingly merging with online developments—The new Open Data push is likely to drive increased transparency and provide support and impetus for FOI officers and transparency advocates within organisations. To date the impact of Open Data has been variable. There is no sign of an “army of auditors”, and is unlikely to appear given the reluctance of the public to look through raw data. However, the data has launched several interesting third party innovations.

Open Data advocates and officials feel online publication, FOI and new innovations will serve to mutually reinforce each other—This can already be seen with sites run by MySociety (such as whatdotheyknow) or Openly Local that analyses local spending data. The Local Public Data Panel pointed out that online transparency will not work isolation.

The danger is that request numbers increase while resources are taken away—Political changes (especially to local government) or cuts may mean an increase in the use of FOI, which have already nearly quadrupled to local government since 2005, from 60,000 a year to 197,000 in 2010 according to our surveys. However, FOI is not yet seen as a “frontline” service and is likely to suffer financially in favour of “vital” services, especially in bodies where support for FOI is “lukewarm”. The contracting out of service delivery may also create gaps in FOI coverage. FOI is already facing growing numbers with officers feeling they are at, if not over, capacity. A lack of resources may lead to a slowing down or, in the worst case scenario, a “stagnation” of FOI operations.

February 2012

Prepared 25th July 2012