By Steven | January 25, 2013
It was the great philosopher T’pau, I think, who said: “Don’t push too far, your dreams are china in your hands.” I sometimes feel that way about our Official Information Act.
It’s easy to dream of improvements. Requesters would like to see an end to game-playing when they make politically sensitive requests. They’d like the deadlines adhered to better. They’d like officials to be a little less ready to invoke withholding grounds whenever there is a mere sliver of justification. They’d like the requirement to balance the reasons for withholding against the public interest in release taken more seriously.
Officials and ministers on the receiving end of requests would like a few more withholding grounds. They’d like requesters to tailor their requests better (and then use the information more accurately!). They would like to be able to more easily reject requests that called for a massive trawl through thousands of files, emails, drafts and memos.
But any reforms have the potential to shatter what is a world-leading official information regime. Too much transparency and important interests such as privacy, commercial confidentiality and legal professional privilege are undermined, and the mechanics of government can be brought to a halt as by the resources consumed responding to requests. Too little, and the law’s laudable aims of promoting accountability, good law-making, public participation and trust are frustrated.
So the Law Commission’s task of reviewing the operation of our official information legislation wasn’t an easy one. It was never going to satisfy everyone. For its part, it says its recommendations pave the way for the law to keep pace with technology and public expectations, while taking advantage of opportunities for improving openness and efficiency. For left-wing blogger NoRightTurn (one of the country’s more astute users of the OIA), the Commission has been used by bureaucrats “to roll back transparency, and reintroduce secrecy and unaccountability for themselves.”
Who’s right? Let me offer a personal scorecard for the Law Commission’s recommendations. There’s a lot to applaud, I think. The Commission’s recommendation that government agencies be required by statute to take all reasonably practicable steps to make official information available is an exciting step forward. It’s in keeping with government policy and with luck might even reduce the burden of dealing with particular requests.
The Commission also puts a lot of emphasis on the development of guidelines. This was also Nicola White’s conclusion in her book Free and Frank: Making the Official Information Act 1982 Work Better. It’s a sensible move. Both officials and requesters will benefit from authoritative guidance, with specific examples and handy rules of thumb drawing from 30 years of experience with the operation of the law. The Commission sees this as filling a lot of gaps: grounds and times for extensions, the public interest test, charging, urgent requests, complex requests, consultation, conditions on requests, proactive release categories, and much more. If someone scrapes together the resources to compile it, and people bother to start using it, it may be the most worthwhile thing to come out of the Commission’s report.
Another big recommendation is the creation of a statutory official information oversight office. This would provide policy advice, keep the law’s operation under review, promote best practice, investigate systemic issues, and oversee training, guidelines and annual reporting. My research found that when things go awry, it’s more often through misunderstanding than game-playing. The re-establishment of such an office (we used to have an Information Authority doing much of this) is in keeping with overseas Information Commissioner offices and can only be a positive thing.The Commission also suggests that the reach of the OIA be made clearer, and widened. At the moment, you sometimes have to wade through three separate pieces of legislation to work out who is subject to it, and there are some silly anomalies. Fix that by putting all the subject agencies into one Schedule, says the Commission. And add the administrative side of court and Parliamentary business, the Ombudsmen and the Auditor General. Too right.
One of the most vexing parts of the existing OIA is the “good government grounds”. These are applied to protect the generation of policy advice and a period of undisturbed deliberation on it. But that’s not what the OIA says. It talks about maintaining “conventions of the constitution”. No-one really knows what that means. The Law Commission has redrafted these grounds so that they are easy to understand and clearly directed at harm to the administration of government. It has also rewritten the commercial sensitivity ground. I suspect the effect is to widen these grounds, which causes me some concern (they now extend to “free and frank information” whatever that might be), but I doubt they will be used to cover anything that the existing grounds aren’t already being stretched to include.
There are plenty of other recommendations to praise, including the development of an accessible user-friendly website for requesters, wider grounds for review by the Ombudsmen, more rigorous rules around urgent requests, clearer rules around transferring requests, and a new power for the Ombudsmen to alert the Chief Archivist to any record-keeping problems that come to light.
Still, I have concerns about some of the Commission’s other recommendations. One is the suggestion that we change the grounds for refusing requests that will be too hard to comply with. At the moment, the agency must show that the requested material “cannot be made available without substantial collation or research”. The Commission recommends this be changed to “substantially and unreasonably divert resources.”
On the one hand, this provision is aimed at a huge problem. Information technology has seen the number of documents in government mushroom. Requests are sometimes extremely wide. You can argue that the new test is more specific and principled – being directed to reasonable uses of resources – and perhaps not enormously different to the old test. All true. But I worry that agencies will readily conclude that particular requests will unreasonably divert their resources, jeopardising the whole transparency regime.
Government lawyers will be interested in the Commission’s recommendation that the legal professional privilege ground be widened. At the moment, it authorises withholding information where necessary to “maintain” legal professional privilege. This recognises that the odd release of legal advice may not itself threaten the edifice of legal professional privilege. Sure enough, legal advice has occasionally been released. The sky has not fallen. But the new test will allow withholding if to release it would merely “breach” legal professional privilege, even if there was no identifiable harm beyond that. But I comfort myself that officials are generally so assiduous in asserting this ground that the change will not make much difference. There is, of course, still the requirement to balance this against the public interest. Sometimes it’s very much in the public interest for the government’s advice to be released.
I also worry about the suggestion that rules about charging be put in regulations. Yes, this will allow for certainty and consistency. But my research showed that charges were only discussed in 4% of requests. I think this is a great strength of our system. Charges have the potential to deter all but corporate requesters. (Even the media are likely to baulk: as my journalism professor at Berkeley used to say, “Journalists and the people who employ them are abidingly cheap”.) I suspect the reason that charges are so seldom imposed has something to do with the extra work that charging requires. It does not seem to be in anyone’s interests to formalise a charging system.
There is one other problem that the Commission recognises but doesn’t really solve. One of the statutory purposes of the OIA is to enable the public’s participation in the making and administration of laws and policies. But ironically, the way the withholding grounds are applied, the sorts of policy information that might actually help people understand what’s going on so that they can have some input is invariably only released after the major decisions have been taken. This is usually explained by the need for governments to have a period of “undisturbed consideration” of the advice they’re given. In the Law Commission’s new phrasing, this emerges as “the ability for Ministers properly to consider advice tendered…”. The disturbance to this proper consideration is, as far as I can tell, public debate. I don’t understand the need to guard against public debate, but it seems to be too deeply embedded in our OIA culture to remove.
Some other recommendations will gladden the hearts of officials: the possibility of charging political requesters for unreasonably broad requests, an allowance for a further time extension after the first one, new withholding grounds for disclosures that might prejudice investigations or inquiries, and a wider definition of vexatious requests.
Overall, it seems to me that if the whole package is accepted and properly implemented, there is much to be gained for requesters and officials. It’s a net gain for both. Whether the government will see its way clear to implement it is another matter…
Topics: Official Information Act |
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