FoI progress setting the pace of change
One of the big fears around Freedom of Information is that it leads to records being kept differently or not being made at all. The worry is that the threat of an FOI request means that politicians and officials do a lot more ‘off the record’ decision-making and find all sorts of creative ways to avoid an audit trail.
So across the land, some claim, from Cabinet and Ministerial office to Council Chamber and Parish meeting, decision trails are disappearing, replaced with meetings in corridors and ‘conversations’ on the phone. Local government is no stranger to this claim. Each piece of legislation giving access to meetings legislation led to concerns of discussion ‘being driven underground’.
But is it happening? Tony Blair certainly thinks it is. So does ex-Cabinet Secretary Gus O’ Donnell, Jack Straw and even, it seems, David Cameron, though he has promised that he is trying to keep everything minuted as best he can.
There’s two difficulties in investigating this chill. The first problem is proving it is happening. Anecdote abounds and stories are told but how can you prove a negative? How can you tell when something is not happening? There are a few examples. One council in Scotland denied having minutes of a meeting over a controversial development. Another, with members on very slim majorities, decided to issue instructions to officers orally after a ‘damaging’ request for written revisions. But by their very nature they are hard to find.
This leads on to the second problem. How do we know it is FOI? There are many reasons that public bodies do or don’t take minutes. Fear of leaks, use of email and lack of time all plays into it. Some politicians, like Mr Blair, like informal one to one meetings.
Jack Straw spoke of how ‘You are going to get a lot of quasi decision-making through text and Blackberry message’. Yet many officials and politicians use BlackBerrys and emails for convenience, not to avoid FOI. Users include David Cameron and Nick Clegg, who are said communicate by text. Interestingly for the future, none of these new ways of communicating are excluded from FOI, as Sarah Palin for one found out. Nor does deletion mean they are always gone, as Lambeth Council discovered after a ruling last week.
The idea of the chilling effect raises many more questions. One person pointed out that the ‘politics’ of a decision, or at least the interesting bits, are very rarely written down anyway. Some even suggested that it has ‘professionalised’ sloppy communications, a sort of ‘positive chill’ effect (or a heat).
FOI can and does make people behave differently. In certain cases it does ‘chill’. More ‘care’ is taken with particular decisions. Yet it’s not clear that is happening everywhere. Not all archives are empty and some are more professional. Could FOI even extend into new areas of decision-making? As case law and FOI moves, could it let us see the texts between David and Nick?
Ben Worthy, research associate, University College London Constitution Unit
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