Despite being established 18 years ago, little is known about the Cabinet Office’s Clearing House. But a court battle last year set in motion a chain of events that could finally shed light on one of the most shadowy parts of government.
The Public Administration and Constitutional Affairs committee launched an inquiry last June into the Cabinet Office’s handling of Freedom of Information requests after the government lost a tribunal over the publication of documents about the clearing house, in which a judge concluded there was a “profound lack of transparency” over its operations.
It is one of two inquiries that have been announced into the unit, which offers guidance to departments on how to respond to Freedom of Information requests. Only one, however, has made any progress.
Chloe Smith, then a Cabinet Office minister, wrote a letter to PACAC in September promising an internal review of the unit. But Cabinet Office permanent secretary Alex Chisholm admitted to the committee in January that nobody has yet been appointed to assess it.
As PACAC prepares to publish the findings of its 10-month quest for answers, CSW speaks to FoI experts who have given evidence to its inquiry, to find out what is known about the clearing house, their concerns are the secretive unit and what needs to change – or if change is likely at all.
FOI: Why is it important and what has gone wrong?
The Freedom of Information Act, passed by Tony Blair (who has since called himself a “nincompoop” for doing so) in 2000, provides access to information held by public authorities, with the aim of aiding transparency.
But the government’s performance in responding to requests for information has consistently worsened over the last decade.
The percentage of FoI requests granted in full dropped from a high of 62% in 2010 to a low of 41% in 2020, according to an Open Democracy report released last year.
And “the speed with which departments deal with requests has been declining since before the pandemic”, often missing the 20 working-day deadline for responses, the Institute for Government noted in its February Whitehall Monitor report. An “understandable, if regrettable” increase in response time as departments faced greater demands for information amid the Covid crisis only “exacerbated a longer-term decline in transparency”, it said.
Journalists, politicians and researchers have all raised concerns about the role the mysterious clearing house may have played in this descent into ever-deteriorating transparency.
What is the clearing house?
“One of the big problems we've got with the clearing house is we don't actually know very much about what it does,” says Ben Worthy, a senior lecturer in politics at Birkbeck University who has written extensively on FoI.
“One of the big problems we've got with the clearing house is we don't actually know very much about what it does"
“We haven't got much data on the requests it looks at and what it looks into. Because, ironically, the clearing house is itself quite secretive.”
Little was known about the clearing house – other than The Times describing it as “Orwellian” in 2005 – until campaign group Open Democracy took the Cabinet Office to a tribunal hearing last year;
Open Democracy brought the case because it believed the department was obstructing access to information it was entitled to seek under FoI rules.
Before the tribunal began, the Cabinet Office revealed in documents published on GOV.UK in March 2021 that the clearing house was established in 2004 and is run by a small number of staff, who have a range of wider responsibilities.
It said responsibility for FoI policy had transferred from the Department of Constitutional Affairs and its successor, the Ministry of Justice, before reaching the Cabinet Office in 2015 where it now sits as part of the FoI and Transparency team and wider Cabinet Secretary Group.
Open Democracy secured a tribunal judgement in April 2021 ordering the government to release further information on its operations.
Asked to respond to concerns raised about the clearing house’s operations, a Cabinet Office spokesperson told CSW that the function was set up “to ensure there is a consistent approach to dealing with FoIs across government and that requests for particularly sensitive information are handled appropriately”.
In its guidance on the clearing house, the Cabinet Office said FoIs may be referred to the clearing house if they are related to national security matters, the royal family, significant live policy development or implementation issues and round robins (requests made to more than one department).
It also said that “robust” processes are in place to ensure the government’s handling of FoI requests comply with data protection laws and all requests are considered without knowing the identity of the requester (although the government accidentally leaked evidence to a Politico journalist that this is not always the case ).
“From what I pieced together, it was initially there as a kind of support mechanism, officially, for coordinating FoI requests,” Worthy says.
“It seemed that in the first few years, it was actually designed to disappear. Slowly, there were fewer and fewer requests going to it. And then suddenly, more recently, it popped up again.
“Formally it’s there to help coordinate and offer guidance. The big problem is to which extent guidance becomes giving people orders or interference. And that's the grey area where, on at least some occasions, it fell away from offering guidance to seemingly issuing orders about what should be done.
“One of the difficulties is working out the line between asking to see a draft [response] to correct it or asking to see a draft just to check.”
Delay and transparency: The key issues
The key criticisms levelled at the clearing house are that it causes delays and that there is a near-total lack of transparency about its operations.
“There is a lot of delay in the FoI system already, even when it's working well,” says Martin Rosenbaum, a former BBC political journalist who trains reporters on how to use FoI legislation.
“[The clearing house] exacerbates that problem. Particularly for journalists, that's obviously a very big issue. You can get information a few weeks or months later and it's no longer really relevant to whatever you were planning to do with it in the first place.”
Rosembaum says the secretive nature of the unit means “we don't know the full extent of the delays that they cause”.
“We don't know how often they overrule departments who are willing to release stuff. Hopefully, this is one of the things that the [PACAC] inquiry will find out and throw some much-needed light into how the clearing house operates. But without that it's difficult to assess quite how problematic it really is.”
“When you've got a government who seems pretty keen on secrecy, and you've got FoI requests resulting in less and less disclosure and more and more delays, what it looks like is a wholesale undermining of the idea of transparency”
All this secrecy sends a bad message about the importance of transparency, Worthy says. “When you've got a government who seems pretty keen on secrecy, and you've got FoI requests resulting in less and less disclosure and more and more delays, what it looks like is a wholesale undermining of the idea of transparency.”
A Cabinet Office spokesperson told CSW that the government "remains fully committed to its transparency agenda, routinely disclosing information beyond its obligations under the FOI Act, and releasing more proactive publications than ever before".
Why PACAC decided to investigate the clearing house
Launching PACAC’s inquiry last summer, committee chair William Wragg said the “perceived opacity of how the FoI clearing house operates has the potential to damage trust in governance and transparency legislation.”
The committee is examining how the FoI Act is implemented and whether the unit’s operations fit with the spirit of the act.
Open Democracy investigations reporter Jenna Corderoy says PACAC’s response to the tribunal was “quite incredible”.
“I was not expecting that. It really suggests that MPs actually care about freedom of information.”
“It has been very insightful to read, going through other people's evidence, that they're also going through the same frustration,” she adds.
One of the many important revelations to have come out of the inquiry so far is that the Cabinet Office rejected an offer by the Information Commissioner’s Office to audit the clearing house, Corderoy says – adding that she does not think the Cabinet Office “has been truly examined yet”.
What needs to change?
FoI has been around long enough not to require very much coordination, says Worthy, who argues the clearing house has “outlived its usefulness.”
But he says it would be easier to make a judgement about whether the unit is needed or what needs to change if the Cabinet Office was more open about what it does.
The reasons for requests going to the clearing house need to be narrowed and those that do should be “dealt with really quickly”, says Rosenbaum.
Whatever form the change takes, Rosenbaum says someone at the top needs to argue for “a much more open and transparent way of working and willingness to be open and transparent to outsiders.”
Worthy says it would help if senior ministers made “more supportive noises about the idea of transparency”.
Cabinet Office minister Stephen Barclay recently revealed that government “does not routinely capture data on the number of requests which are referred to the clearing house” in a letter to PACAC, with no explanation of why this is the case.
Asked about the concerns of the experts CSW spoke to, a Cabinet Office spokesperson said: "We do not recognise these claims and strongly disagree with this characterisation of clearing house.”
They said the latest annual FOI data shows that 90% of FoI requests to government were responded to on time and added that this is an improvement on the previous year despite a 17% increase in the number of requests and the impact of the pandemic.
‘Let down’: The Cabinet Office’s internal review
Worthy, Corderoy and Rosenbaum are not optimistic that the Cabinet Office’s review will be a meaningful examination of the clearing house.
“The government doesn’t seem particularly enthusiastic to do it in any kind of hurry,” says Worthy.
“I'd hoped that the select committee investigation might give them a bit of a jolt.”
Rosenbaum suggests Cabinet Office officials “panicked” when PACAC announced its inquiry, thinking “we’ve got to be seen to be doing something, so let's announce our own inquiry”.
He notes that shortly after announcing the review, Chloe Smith moved to another department and her constitutional responsibilities transferred to Steve Barclay when he was named Cabinet Office minister in September.
“Maybe he's not remotely interested in this. He’s got all sorts of other things [to work on],” Rosenbaum says.
Barclay has since been appointed as Boris Johnson’s chief of staff, with some of his Cabinet Office responsibilities taken over by other ministers.
Asked for an update on the review this week, a Cabinet Office spokesperson said that more details would be released “in due course”.
The delay in appointing someone to lead the inquiry shows “it is obviously not a big priority, and it suggests that they’re not taking it seriously”, Rosenbaum adds.
“They've had months to appoint someone [to lead the review], and they haven't done it. And we have no idea whether it's going to be weeks or months"
“That also seemed to be the case with Alex Chisholm with the way he gave evidence [at PACAC]. He obviously wasn’t well briefed on FoI. He had no idea really what was happening with the inquiry.
“It just seems to me... that the Cabinet Office [review] was announced as a kind of token [gesture] and they've given it such a low priority that they haven't been bothered to do anything about it.”
Corderoy says she was “really let down” by Chisholm’s announcement back in January that nobody has been appointed yet.
“They've had months to appoint someone, and they haven't done it. And we have no idea whether it's going to be weeks or months.
“I don't think that they care about this. They’ve spent a good three years trying to stop me accessing information about the clearing house. What has changed? I don't think anything's changed. I think they're just going to draw out this process as long as possible.
“I don't think there's any appetite from the Cabinet Office to appoint someone to review it. I’m not hopeful.”