The Freedom of Information Act has been with us as a law for 25 years, and has been in place for 20. The act allows anyone to request information from a whole range of public bodies, from central government to local councils, from the police to national parks, and from schools to GP surgeries. When the law was passed, it became the sum of a whole series of hopes and fears. Would it open up government and tell us more about what those governing us were doing? Or would it lead to politicians finding new ways to hide, and government by Post-It note or WhatsApp?
Two decades on, we can see how FoI has opened up government and made it more transparent, almost on a daily basis. It is regularly used by the media, campaigners and citizens. Request numbers have almost trebled, from 26,000 requests in 2005 to more than 70,000 in 2023. Just this month, FoI has shown us how toxic sites across the UK are going unchecked; it has led to the release of the MoD’s guide to keeping secrets and has revealed the policy advice a minister has been getting from ChatGPT. It has also made politicians more accountable, and more likely to explain what is happening, across everything from the MPs’ expenses scandal of 2009, which was partly triggered by FoI, to Telford’s low number of fines for dog fouling.
Whether FoI increases public trust is a rather trickier question to answer. In theory, making things more open could increase trust in politicians, but it depends very much on what is being revealed. Why we do (or mainly don’t) trust politicians is itself a rather a complicated business, and the UK is a very low- trust country. To make matters worse, FoI often reaches people via the media, which tends not to be positive about how any government is performing.
One of the deepest worries about FoI is that whenever a law arrives, those subject to it try to hide their decisions and empty out the official record – a practice which is often labelled a “chilling effect”. The fear is that, because of FoI, meetings start to go un-minuted, conversations go unrecorded or disappear into “informal” communications, from a chat in the corridor to WhatsApp.
Politicians have stated publicly that a chilling effect is occurring. In fact, a succession of prime ministers have been keen to flag it. Tony Blair claimed FoI had led to more caution over recording decisions, concluding the law was “not practical for government” because “if you are trying to take a difficult decision and you're weighing up the pros and cons, you have frank conversations… you are going to be very cautious”. David Cameron then hinted that it was disrupting decision-making and was, as he put it, “furring up the arteries of government”. Liz Truss then weighed in, claiming in her memoirs that it was making meetings impossible, because “campaigners” would keep FoI-ing about them.
For anyone researching FoI, the problem is that this so-called chilling effect is notoriously hard to prove. Just because Tony Blair says something is happening doesn’t mean that it is. In terms of actual evidence, so far, there is good news and bad news. The good news is, at official level, there is no sign anything chilling is taking place. Our research in central and local government found that, if anything, FoI made civil servants more serious about record keeping and management. Officials we spoke with felt they would get in more trouble for not having a record than for having one. The data on how FoI is working, especially around the two explicit protections in the law for decisions – sections 35 and 36 – shows no spike or jump in use, which supports this.
But the bad news is that, with senior politicians, some sort of chill is in the air. The Cabinet Office's clearing house, created to help coordinate FoI, became a device for slowing it down. A secretive police unit, called the “Central Referral Unit”, seems to be doing the same thing for FoI requests to the police.
There have been other signs, such as meetings with very sparse or non-existent minutes. In Northern Ireland, the inquiry into the Renewable Heat Incentive scandal revealed that records of meetings were not kept, purposely to frustrate FoI requests. In Scotland in 2018, there was concern at the lack of records when it came to seemingly slow responses to journalists’ FoIs. In parallel, there have been a succession of ministers seemingly trying to hide from FoI. Back in 2012, Michael Gove was the first of many ministers caught using private email for government business, which is now covered by the law.
“There have been a succession of ministers seemingly trying to hide from FoI. Back in 2012, Michael Gove was the first of many ministers caught using private email for government business”
The danger for FoI has worsened in the last few years due to the arrival of WhatsApp and a whole array of other informal means to speak, which the law finds hard to reach. A report in 2022 by the information commissioner looking into the use of ”non-formal communications” at the Department of Health and Social Care concluded that “there was extensive use of private correspondence channels by ministers and staff, [and] this practice is commonly seen across much of the rest of government”. While their use is not intended to avoid FoI, “such channels presented risks to the confidentiality, integrity and accessibility of the data exchanged”, it found.
The emergence of the Covid pandemic found governments across the UK seemingly running on WhatsApp. Although this was justified and necessary, there has been some, let us say, confusion around how transparency applies. Senior politicians, from Boris Johnson to Nicola Sturgeon, argued that WhatsApp was not used for decision-making, though this may depend on how you define decisions. One ex-minister claimed WhatsApp was mainly used to order coffee, though this was the same minister whose phone and messages disappeared at a very inopportune time.
In fact, phones and messages deleted or going missing has been a recurring theme of the Covid inquiry, and FoI has cropped up in various chats around deletion. Welsh first minister Vaughan Gething wrote: "I'm deleting the messages in this group. They can be captured in an FoI and I think we are all in the right place on the choice being made." The national clinical director in Scotland, in a chat released to the inquiry, called deletion a “pre-bed ritual” right after FoI was mentioned.
As FoI reaches 20, there are signs for optimism. The headlines in newspapers, the growing levels of use, and even the complaints of prime ministers attest to its success. But the law exists in a very different place from where it did in 2005. FoI may need a reboot to meet the dangers of the delete button.
Ben Worthy is a reader in politics and public policy at Birkbeck College, University of London