Written evidence from The Centre for Investigative Journalism[1] (FOI 356

Public Administration and Constitutional Affairs Committee

The Cabinet Office Freedom of Information Clearing House inquiry

 

 

FOI and Subject Access Requests by openDemocracy reveal that the Clearing House shares with a range of Whitehall departments a daily update containing the names of journalists and campaigners, the requests they have submitted and advice on how referring departments should respond. The Clearing House has also reviewed drafts and signed off on departmental responses to FOI requests. There is no basis in law or policy for the existence of the Clearing House and it is unclear to whom it is accountable.

The Art of Darkness, How the Government is Undermining Freedom of Information, Lucas Amin, OpenDemocracy[2]

 

The Centre shares the widespread concerns that the Clearing House may be monitoring requests by the media and seeking to undermine journalists’ access to information.

 

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The Freedom of Information Act 2000 (FOIA) ‘gives rights of public access to information held by public authorities’.[3] The introduction of the legislation under Tony Blair’s government allowed for public scrutiny of the decisions, discussions and dealings of the government and as such it is a vital tool for a healthy and transparent democracy. However, there is sufficient evidence to suggest that the government, via the Cabinet Office Clearing House, is both not compliant with the FOIA and is impeding its effective implementation. Of particular concern is the possibility that the unit may be monitoring requests by the media to undermine journalists’ access to information.

 

Public knowledge of the existence of the Clearing House - a unit that monitors FOIA requests across governmental departments - dates back to at least 2005[4], but documents obtained by openDemocracy in 2020 were the first to reveal details of its inner workings. The documents describe how any FOIA requests that are deemed ‘sensitive’, or those that have been sent to multiple government bodies, are forwarded to the Clearing House for its team to advise on how departments should proceed, and in some instances to provide clearance for draft responses.[5] Given that the Clearing House has less knowledge of both the information structure of the department and expertise specific to the department’s remit, it must be assumed that its authority is of a political and not technical nature.

 

Not only does the political role played by the Clearing House have no basis in law or policy, its existence and actions are particularly concerning when considered in light of the discovery (also made by openDemocracy) that journalists’ names are included on the daily emails that are sent by the Clearing House to up to 70 government departments and arms-length bodies. It is now clear that the names of journalists from outlets such as The Guardian, The Times and the BBC are mentioned in these daily messages, in direct violation of one of the principles of FOIA: ‘In most cases, authorities should consider FOI and EIR requests without reference to the identity or motives of the requester’.[6] The ICO even explicitly states that ‘no matter who the requester is, whether a journalist, researcher, MP, business or a member of the public, they should receive the same response, in terms of a substantive outcome, as anyone else making an identical request.’[7]

 

While there are some exemptions to the above edict, it is implausible that in every case where a journalist was identified one of the acceptable exemptions to the general rule was applicable. Furthermore, despite Michael Gove’s claim in response to the Guardian that the identity of the requester is of ‘no material consideration’[8] in formulating a response, there is a precedent of journalists’ requests being handled differently in the case of the Scottish government. In 2017 it was assessed by the Office of the Scottish Information Commissioner and found to be screening FOIA requests by journalists with a view to how politically damaging the disclosure of the requested information could be. The fact that the Clearing House is routinely identifying requests from journalists raises the disturbing prospect of ‘blacklisting’ those who have been critical of government policy and actions, in order to restrict their access to information.

 

The openDemocracy analysis also exposes the increased use of the practice of ‘stonewalling’: when public bodies refuse to acknowledge the FOIA request at all, depriving the requester of either the information sought or recourse to the appeals process. The only option for ‘stonewalled’ requesters is to complain to the ICO, but this can take months and still result in a refusal. Given the significant increase in the use of stonewalling by government departments, it is possible that journalists named by the Clearing House will be subject to this tactic in order to undermine requests that may reveal ‘sensitive’ information.

 

Taking into account the evidence that the Clearing House takes an interventionist approach with certain FOIA requests; that journalists are being identified in widely-shared communications; and that both the Cabinet Office and numerous other departments have engaged in ‘stonewalling’; it is not unreasonable to assume that the Clearing House is, like the Scottish government before it, obstructing journalists’ ability to use the FOIA for its full and intended purpose. This not only contravenes the spirit of the FOIA to increase transparency and accountability of public institutions, it violates the stated principles of the Act as outlined by the ICO.

 

The Centre for Investigative Journalism calls on the PACAC to fully investigate the concerns raised above:

       the nature of the Clearing House’s role;

       the potential for blacklisting of journalists identified as requesters;

       the scale of stonewalling tactics to block access to the FOIA process;

       and the subsequent impact on journalism’s role in providing scrutiny in the public interest, as well as wider accountability and public trust in government.

 

 

October 2021


[1] The Centre for Investigative Journalism is a registered charity that works to improve the standards of investigative journalism across all media. It meets its charitable objectives through educational provision around skills, techniques and tools for investigative research. This includes teaching journalists, researchers how to effectively use Access to Information legislation. Through this, the Centre aims to raise the standards of requests made, further the Freedom of Information Act’s objectives of transparency and accountability and ultimately reduce wastage of public funds that occurs through requests that are poorly constructed or fall outside the legislation.

[2] https://s3.documentcloud.org/documents/20415987/art-of-darkness-opendemocracy.pdf. p.7

[3] https://ico.org.uk/media/for-organisations/documents/1043418/consideration-of-the-identity-or-motives-of-the-applicant.pdf. p.2

[4] The Times, 30 September 2005, quoted on p118 of R. Hazell, B. Worthy and M. Glover, ‘The Impact of the Freedom of Information Act on Central Government in the UK’, London: Pan Macmillan, 2010.

[5] https://s3.documentcloud.org/documents/20415987/art-of-darkness-opendemocracy.pdf. p.15

[6] https://ico.org.uk/media/for-organisations/documents/1043418/consideration-of-the-identity-or-motives-of-the-applicant.pdf. p.2

[7] Ibid., p.4.

[8] https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/970833/CDL_letter_to_the_Guardian.pdf. p.2.