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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.
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