Written Evidence from the News Media Association (FOI 20)

 

 Public Administration and Constitutional Affairs Committee

 The Cabinet Office Freedom of Information Clearing House inquiry

 

 

  1. Background

 

1.1.            The News Media Association (“NMA) is the voice of UK national, regional and local newspapers in all their print and digital forms - a £4 billion sector read by 49.2 million adults every month in print and online. Our members publish over 900 news media titles - from The Times, The Guardian, the Daily Mail and the Daily Mirror to the Yorkshire Post, Kent Messenger, and the Monmouthshire Beacon. Our membership spans the industry - from the largest groups to small, independent, family-owned companies publishing one or two local titles. Collectively these publishers are by far the biggest investors in news, accounting for 58 per cent of the total spend on news provision in the UK.

 

1.2.            The NMA welcomes the inquiry undertaken by the Public Administration and Constitutional Affairs Committee (“PACAC”) into the Cabinet Office’s compliance and implementation of Freedom of Information (“FOI”) laws. This probe is crucial for exposing the workings of the Cabinet Office and restoring the public’s right to information. Indeed, as is evident from the First-tier Tribunal case of the Cabinet Office v. ICO,[1] the Cabinet Office and its internal unit, the Clearing House, stands to impede access to public interest information. The Cabinet Office’s treatment of FOI requests is characterised by aprofound lack of transparency”.[2] However, as correctly identified by John Witherow of the Times:

 

Transparency is not a privilege or a gift bequeathed to a grateful citizenry by a benign government. It is a fundamental right of a free people to be able to see and scrutinise the decisions made on their behalf”.[3]

 

1.3.            This response supports the probe and sets out the primary issues faced by the news media industry resulting from the Cabinet Office’s improper handling of FOI requests. The NMA welcomes further discussion concerning the inquiry with the PACAC.

 

  1. Response

 

2.1.            FOI requests are supposed to be “applicant blind”: meaning who makes the request should not matter. However, it is understood that FOI requests made by journalists to Government bodies are given special attention and directed to the Cabinet Office’s Clearing House, a department that determines how FOI requests are dealt with; effectively centralising control over what information is released to the public. Ultimately, the Clearing House’s criteria in respect of requests involving sensitive information appear to catch anything likely to attract publicity and anything from a media body. This practice is counter to the applicant blind FOI process and freedom of speech more broadly.

 

2.2.            The Freedom of Information Act 2000 (the “Act”) operates without favour, and the Government must adhere to this principle if journalists are to fulfil their civic role. Democracy is inevitably attenuated if the Government is permitted to monitor and elect which FOI applicant gets a response based on criteria other than that set out in the Act.

 

2.3.            The delays caused by the additional screening process that FOI requests from journalists are subjected to by the Clearing House creates another improper barrier to access. Often journalists must wait months, sometimes years, to receive a response from Government when it should have taken 20 working days,[4] without extension. Such delays have a chilling effect on publication, as news is a perishable commodity. The Clearing House can, by its conduct, silence public interest journalism by unreasonably extending the period it takes to respond to an FOI request such that it may no longer be newsworthy. Indeed, the Act was subject to two major reviews since its implementation in 2005,[5] both advocating amendments to reduce unnecessary delays and extensions for responding to FOI requests. Such proposals have not been implemented.

 

2.4.            The Cabinet Office per se plays a vital role in ensuring compliance with the Act across Government, aiding complex FOI requests while also ensuring that sensitive information is handled appropriately. Consequently, one would expect that the Cabinet Office should lead by example, acting as a bastion of compliance with the Act and spearheading excellent handling of FOI requests. However, it is well documented that the Cabinet Office falls notably short of this. In 2020, openDemocracy reported that in the preceding five years, the Cabinet Office granted the fewest (26%), and withheld the most (60%), FOI requests across all of Whitehall.[6] It also upheld in full 95% of its internal reviews. Yet many of these decisions were overturned on appeal. In the same period, the ICO ruled against the Cabinet Office in full or in part in 35% of its decision notices. The Cabinet Office’s role, therefore, is problematic, begging the question – how can good compliance with the Act be expected across all public bodies when the Cabinet Office fails to do so themselves? Moreover, if Government bodies are expected to revert to the Cabinet Office and its Clearing House with their FOI requests, it logically follows that the chances of those requests becoming significantly delayed increases considering the Cabinet Office’s own weak track record. Overall, it seems the Cabinet Office is not sufficiently well equipped to deal with FOI requests; during the Tribunal hearing the Judge called its competence into question. Indeed, the Cabinet Office official dealing with the request and tasked with responding to the ICO misled their own Minister, the ICO and the Tribunal as to the nature of the Round Robin List and whether it contained information about requests relating to sensitive subjects.

 

2.5.            The NMA questions whether the Cabinet Office and its Clearing House, acting as a centralised FOI screening body, is necessary. Government bodies have dealt with FOI requests for over fifteen years, sufficient time for each Governmental body to garner expertise in handling FOI requests making the Cabinet Office’s supervision superfluous. Moreover, given that each department is responsible for justifying its own decisions on FOI requests, it is unclear why the Cabinet Office should direct them on what information to release. The implication is that the Cabinet Office and Clearing House’s roles and procedures in relation to FOI requests (such as the Round Robin List) keep Government departments in line, suppressing challenging FOI requests across the board.

 

 

September 2021

 

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[1] Cabinet Office v Information Commissioner & Jenna Corderoy, EA/2020/0240, First-tier Tribunal (General Regulatory Chamber) (19 May 2021).

[2] As stated by Judge Chris Hughes in the above reference.

[3] See the Times’ Article on “The Times view on Boris Johnson and the Cabinet Office FOI clearing house: Official Secrecy”.

[4] Section 10(1) of the Act requires that a response is made to requests “promptly and in any event”

within 20 working days.

[5] The two reviews include: 1) Independent Commission on Freedom of Information Report; and 2) Post-legislative scrutiny of the Freedom of Information Act 2000 First Report.

[6] See for openDemocracy’s article on “How the UK government is undermining the Freedom of Information Act”.