A leading author of the UK Freedom of Information Act has called for a parliamentary review into the system after serious data breaches by police forces in responses to FoI requests.
The call by Lord Clark of Windermere, designer of New Labour’s 1998 proposals that laid the groundwork for the law, comes after accusations that Rishi Sunak’s government is failing to disclose information under the act.
David Clark, who as chancellor of the duchy of Lancaster drafted the Blair government’s FoI proposals, said a serious re-examination was needed to look at whether the correct balance was being struck between the need for confidentiality and openness.
Clark said he thought freedom of information was in a weakened state owing to continued resistance from senior civil servants, many of whom still did not recognise its value to good governance.
“I think there really does need to be a serious re-examination of the situation,” he said. “I would set up a parliamentary committee with a general view of examining FoI over the past 25 years, [and] the balance between confidentiality and openness.”
Freedom of information and FoI officers, who handle requests, have not been afforded the status required for the system to work effectively, he said. “We’ve [now] got the result we’ve got at the moment in too many government departments (…) it’s just [regarded as] an add on.”
In June, the government was accused of a “culture of concealment” after figures revealed that it had placed a record number of blocks on FoI requests in its first three months in office.
Clark said the information commissioner, who can issue fines for data protection breaches, should be given the power to impose them for FoI breaches. “That’s the only way you’re going to get the message across to government,” he said.
Charles Falconer, lord chancellor in the Blair government, said in his experience FoI was regarded by almost all public services as a low priority and an inconvenience.
“Politicians at least in central government are usually supported by civil servants in viewing FoI as inconvenient and contrary to a natural inclination to confidentiality not openness,” he said.
“In central government, the Cabinet Office coordinated FoI, and unless there were politicians who were committed to making FoI work in the sense of it providing as much info to the public as possible, subject only to the claiming of legitimate exceptions, coordination meant restricting disclosure as much as possible so as not to create precedents from one department to increase disclosure by another.”
Falconer said “disasters”, such as the Police Service of Northern Ireland’s mass breach of police officers’ data and Norfolk and Suffolk police forces’ mishandling of sensitive data of victims, witnesses and suspects, arose from a combination of two factors: “Insufficient thought or quality resources being devoted to the issue.”
He said the FoI system needed to strike a balance “between openness and transparency on the one hand, and the legitimate protection of state on the other,” such as the identity of police personnel in Northern Ireland, victim information, and in central government the internal free exchange of views on policy.
Falconer called for an urgent investigation into how the Northern Ireland data breach happened, and perhaps those by the two English forces as well, which he suggested should be led by HM inspector of constabulary. “Unless there is an understanding of how they happened and what needs to be done in the future, FoI will be damaged,” he said.
Once that investigation was concluded then it might be appropriate to have a wider FoI inquiry, he added.
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Jon Baines, senior data protection specialist at law firm Mishcon de Reya, said the current state of FoI reflected years of under enforcement by the information commissioner.
He said a lot of government departments had failed to comply with their statutory obligations because “they realised there was no sanction for not getting it right”.
Baines said that while the current information commissioner, John Edwards, had significantly increased the number of enforcement notices issued to public bodies for FoI breaches, he also stated last year that he would only issue fines for the most egregious data protection cases.
The data expert, who backed Clark’s call for a parliamentary review of the FoIA, said this raised fears of further serious data breaches and wrongful withholding of information.
“I feel there might be a bit of a perfect storm at the moment around this historic under-enforcement of FoIA, and of data breaches, in conjunction with the stated intention effectively not to issue fines to public authorities. I fear it might lead to even more downgrading [of the importance of FoI by public authorities]. But also it might lead to more sloppiness when it comes to disclosure.”
Last year, more than 100 journalists, politicians and campaigners signed an open letter warning that the UK’s freedom of information laws were being undermined by a lack of resources and government departments obstructing lawful requests.
The ICO said it welcomed parliamentary scrutiny of FoI law and its role.