Freedom of Information: Opinion

On transparency, like so much else, the UK government is shifting the goalposts

The government dismissed damning openDemocracy report on FOI as ‘complete nonsense’ – I wasn’t surprised, I’ve seen its efforts to act in secrecy

Tommy Sheppard
3 November 2021, 3.02pm
Boris Johnson’s government appears determined to ensure a cloak of secrecy around its centre
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Tayfun Salci/ZUMA Wire/Alamy Live News. All rights reserved

As someone well acquainted with the UK government’s belligerent reactions to requests for information, I found the official reaction to openDemocracy’s scathing report into transparency at the heart of Westminster entirely predictable.

“Complete nonsense” was the verdict from Whitehall following the publication of the report that highlighted how 2020 was the worst year on record since the Freedom of Information (FOI) Act was introduced in 2005.

Few would have expected anything but such a response from a government that is clearly determined to ensure a cloak of secrecy around its centre. This is a government that appears to be of the opinion that rules apply only to those outside of the Tory party. After all, if you don’t like the rules, then you can just move the goalposts. It could be FOI, the Northern Ireland protocol or, say, the Commons Standards Committee.

What is clear, and what openDemocracy’s ‘Access Denied’ report highlighted, was the sheer scale of this government’s attack on the Freedom of Information Act and the wider implications for British democracy as a whole.

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The report was a fascinating accompaniment to my own experience, in which I have witnessed deliberate and ongoing obfuscation in a blatant undermining of the FOI Act.

My own story started in the spring of 2019. At the time, I was on the front bench for the SNP in Westminster, working on affairs concerning the Cabinet Office. Press reports at the time suggested the UK government had, over the past year, spent a chunk of change on researching the attitudes of people living in Scotland regarding the constitution. As you could imagine, the results of such research would be very much of interest not only to my party, but to anyone engaged in the debate surrounding Scottish independence. So, I asked the Cabinet Office what it had found.

What I received was silence.

This is a government that appears to be of the opinion that rules apply only to those outside of the Tory party

Having failed to secure success through the normal parliamentary question process, I submitted an FOI request. That was on 3 June 2019. Specifically, I requested polling on Scottish attitudes to the union and any related contact with Ipsos-MORI from January 2018 to that date.

Just under a month later, on 1 July, the Cabinet Office refused my request, citing s35(1)(a) – formulation and development of government policy. On 5 July, I asked for an internal Cabinet Office review of its decision to refuse my request. That was rejected, too.

So, my next step was to appeal to the Information Commissioner's Office (ICO) on 20 August – as anybody who has an FOI request rejected can do. I argued that the excuse of formulating policy failed to stand up since the government could not have been clearer in its determination not to review the existing constitutional arrangements. In my opinion, there was no public interest reason not to release the information, now a year after the polling had first started in March 2018.

The weeks came and went; Parliament was prorogued, then recalled, and then a new election was called. If I’m honest, I forgot all about the appeal. Perhaps the ICO did, too, because it wasn’t until the end of January, now with a new majority Tory government in office, that it made a decision. Astonishingly, it upheld the Cabinet Office view that the clause did allow the information to be exempted.

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The ICO’s decision left me rather confused. It appeared to suggest that pretty much any information could be kept secret on the grounds that it was being used to formulate policy. So, I went to the next stage and on 25 February I appealed the decision of the ICO to the Information Tribunal.

If I was expecting a prompt reply, I would be severely disappointed. More than a year later, on 14 June 2021, a First-tier Tribunal (FTT) ruled in my favour and ordered the release of the information within 28 days.

At last, the Cabinet Office would comply with my request, I thought – naively it turned out. Instead, on the 28th day, the Cabinet Office submitted a request to the FTT for a review of its decision, hiring external counsel and running up a legal bill that was footed by the taxpayer. That appeal was swiftly rejected. So, surely now, having lost its appeal, the Cabinet Office would comply and release the information?

Well, no. Predictably, it lodged a formal appeal to the Upper Tribunal aiming to overturn the First-tier decision. The FTT decision took more than a year. I’ve no idea how long the Upper Tribunal will take but I have been assured that I will be able to make representations when the appeal is eventually considered.

Meanwhile, this summer, having got the first judgement I then submitted further FOI requests relating to polling results (yes, it’s still polling) from the period when my earlier request ended until the present. That, too, you’ll be surprised to know has been rejected.

On 23 September this year, the Cabinet Office refused my second polling request, citing that it would require 51 hours and cost £1,287 to extract the relevant polling information from wider documents.

What on earth is the government hiding? How explosive is this information?

As is somewhat customary for this government, it has shifted the goalposts, no longer arguing the information is protected because of policy development, just that it’s too expensive to produce.

The requests have been amended to make them simpler, but they, too, have been rejected. So, it looks as if I’m off again on the same journey to the ICO and then the courts.

The consistency and force of the Cabinet Office’s refusal to provide information and its frustration of the principles of FOI are such that this must be a formal policy sanctioned by ministers. I don’t, by the way, have similar problems with other government departments when making FOI requests so it appears to me that the Cabinet Office has gone rogue.

The constant stonewalling and obfuscation lead to more questions than answers. What on earth is it hiding? Just how explosive is this information? I cannot believe that it is so damaging to the government that it justifies this deliberate undermining of FOI. After all, in my own case, what’s the worst (from the government’s point of view) it might tell us? That most people in Scotland don’t like the government or that they support independence. No shit, Sherlock! We know that already.

More likely, I think, is that there is a collection of ministers and civil servants who see themselves as above inquiry, immune from the glare and judgment of the public. And that’s why I’ll keep going at this to the bitter end.

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