Policy in the age of FOI
If you want to know more about why ministers are planning to exclude cabinet papers from the reach of freedom of information, then I strongly recommend you look at this new about government policy-making in the context of FOI.
Published last week, it was produced by the of University College, London, for the . Chapter 7 is based on interviews with current and former ministers and civil servants, and provides a fascinating insight into Whitehall unease about the workings of FOI.
The Information Commissioner and Information Tribunal have often been criticised by government insiders for not properly grasping the practical realities of policy formulation. The ICO commissioned this report to aid understanding of the policy process. It also contains a useful section on how cabinet papers are treated by freedom of information laws in other countries.
The researchers acknowledge they talked only to a small sample, but the attitudes to FOI of those interviewed were "markedly more negative than positive". They don't like the bad publicity that can result from FOI-based news stories and the use of FOI by pressure groups, they don't like the time it takes and the resources consumed in dealing with requests, and they don't like the central criterion in the law of assessing whether the release of material is or is not in the public interest. And some of them state that such consequences of FOI have taken them by surprise.
Here are some examples of what they had to say:
Overall I have a sense of disappointment about FOI. Perhaps I was naive - but I had seen it as a significant step forward to making us a more literate democracy. But the reality is that FOI is just seen generally as a means of attacking the government, whether the request be from an interest group or a journalist.
I do think it was a mistake to establish a "public interest" test, to be decided (except when the veto is exercised) by the Information Tribunal. I think it is extremely difficult for people without personal experience of central government to understand our concerns about how the release of documents will affect the way government works.
There is no public right to know what you decided not to do or what options you rejected. It's an enormously important principle that it's the final decision which needs transparency but how you get to it is not for disclosure.
This last point is one of those I found most striking. Interested parties outside government are often very keen to know what other policy choices were considered but discarded and why. However disclosing information about rejected options appears to make ministers and officials particularly uncomfortable.
The research team also examined the impact of FOI on the extent and honesty of government record-keeping. While one official states "I tend to take much more care than I might once have done to make sure the record is accurate and complete", another official who is concerned about pressure groups says:
In the future, I'll be making sure that there is nothing for them to get at. Part of our problem is that we have had a lot of internal material and our record keeping has been good. But I've told my team to make sure in future we minimise what we write down and minimise what we keep. So we'll be getting rid of e-mails quickly and we won't worry if the record is incomplete, so long as it contains nothing we wouldn't want to see released.
Yet in contrast there is at least one former cabinet minister who appears to want much more openness in the policy-making process. In Lord Falconer (who was once in charge of FOI) has challenged the fundamental notion of ministerial collective responsibility, arguing that dissenting ministers could openly voice disagreement before final decisions are made.
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