The most creative attempt yet to get around freedom-of-information laws?
STRETCHING the law on the disclosure of public documents has been a competitive sport among civil servants ever since the Freedom of Information (FoI) Act was passed in 2000. It requires public bodies to reveal information on request, but provides 23 get-outs, designed to protect secrets that ought to stay under wraps because they threaten national security, personal privacy and so on. The rules are often interpreted in a creative way.
Now The Economist has discovered a contender for the most inventive interpretation to date. After thinking about it for nearly two years and trying out various exemptions, the Home Office has refused to release a confidential assessment of its anti-drugs strategy requested by Transform, a pressure group. The reason is that next March the National Audit Office (NAO), a public-spending watchdog, is due to publish a report of its own on local efforts to combat drugs. The Home Office says that to have two reports about drugs out at the same time might confuse the public, and for this reason it is going to keep its report under wraps.
This is believed to be the first time that a public body has openly refused to release information in order to manage the news better. The department argues that releasing its internal analysis now “risks misinterpretation of the findings of the [NAO] report”, because its own analysis is from 2007 and predates the NAO’s findings. The argument uses section 36 of the FOI act, which provides a broad exemption for information that could “prejudice the effective conduct of public affairs”.
The information commissioner, who polices the FOI act, declined to comment because the case was still open. But his predecessor, Richard Thomas, who stepped down in June, questioned the novel defence. “Certainly my office was always quite sceptical of anything which said publishing information is going to confuse the public. If that’s the case, normally you need to put out some extra material alongside it to provide adequate explanation. It’s not a reason for withholding something.”
Sir Alan Beith, the chairman of the parliamentary Justice Committee, which oversees the FOI act, was sharply critical of the Home Office’s excuse. “That’s really scraping the barrel. On those grounds you would have to ban the various hospital reports that are coming out at the moment [see article] because the public are confused about that too. It’s not an argument for censorship, it’s an argument for an even more open and clear debate.” The Home Office was making “a quite ridiculous attempt to hide from freedom of information,” he said.
The legality of the decision is also in doubt, after the department admitted that its refusal to release the document had not been approved by a minister, as is required by law. A Home Office spokeswoman called it an “administrative error”. Retrospective ministerial authorisation was being sought as The Economist went to press.
Legally or not, the Home Office will be able to hang on to its report for now because the FOI act takes so long to enforce. The commissioner’s office is said to be ready to order the release of the report now. If it does, the Home Office has 28 days to launch an appeal, which could take a year. In the meantime, drugs policy will continue to be shaped—or not—by research that the public paid for but may not see.