Outline of presentation

Access legislation and the right to information -

the role of archivists and records managers

Duncan SimpsonThe Constitution Unit, UCL

ARMReN Research Workshop 13 September 2007

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Outline of presentation

• Early ambitions for FOI• Disillusion sets in• Provisions and objectives of the FOIA• FOIA 2000 in practice• The role and attitudes of archivists and RMs in

FOI• Some issues and problems

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Early ambitions: good governance and the right to information

Tony Blair said in his preface to the 1997 White Paper The Right to Know that his purpose was:

“… to legislate for freedom of information, bringing about more open Government. The traditional culture of secrecy will only be broken down by giving people in the United Kingdom the legal right to know. This fundamental and vital change in the relationship between government and governed is at the heart of this White Paper.”

David Clark said in his foreword, as responsible Minister, to the same document:

“Openness is fundamental to the political health of a modern state. This White Paper marks a watershed in the relationship between the government and people of the United Kingdom. At last there is a government ready to trust the people with a legal right to information. This right is central to a mature democracy.”

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Early reluctance: retreating from the White Paper

Campaign for the Freedom of Information evidence to the Select Committee on Public Administration, June 1999:

‘We are pleased that there is going to be a Freedom of Information Act…We have to say that we are deeply disappointed in the substance of the Bill. It represents a very substantial retreat from the Government's White Paper which was published only 17 months ago with the backing of the whole Cabinet and a preface from the Prime Minister. As you know, the White Paper was very warmly received, both domestically and internationally. The Information Commissioner who supervises Canada's FOI Act…said that this proposal in the White Paper "left Canada trailing in the dust". While the White Paper has been seen as a yardstick for best practice, the draft Bill is already being cited in the opposite context.’

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Disillusion sets in: Alistair Darling to Lord Falconer May 2007:

‘As you know we are increasingly concerned that in a number of respects the demands of the FOIA are placing good government at risk. First.….disclosure of letters between MPs and Ministers… will inhibit the dialogue between MPs and their constituents and MPs and Ministers. ….Second, I am concerned that the FOIA….prevents us from protecting robustly and across the board advice from officials to Ministers…. We should be able to guard more effectively against the incremental harm to the policy development process that must inevitably arise from the disclosure of individually innocuous submissions.’

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Onset of madness: the Maclean Private Members Bill 2007

‘The Freedom of Information (Amendment) Bill has been justified as a measure needed to protect MPs' correspondence on behalf of individual constituents. This is misleading. Correspondence which refers to a constituent's personal circumstances is already exempt under the Act. The real effect of the Bill would be to (a) prevent the disclosure of detailed information about MPs' expenses claims and Parliament's spending and (b) allow MPs to lobby public authorities in secret, in the knowledge that what they write could not be disclosed under the Act.’

[from CFOI website]

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The voice of sanity 1: the House of Lords

‘Sensitive personal information about members of the public is unlikely to be disclosed by the House of Commons or the House of Lords for the simple reason that neither House holds such information; it is Members of Parliament who hold such correspondence and Members are not public authorities for the purposes of the 20000 Act. [Lords’ Select Committee on the Constitution on the Maclean Bill, June 2007]

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The voice of sanity 2: MPs’ reactions

‘An attempt, through a private Member's Bill to remove the House of Commons and Members of Parliament from the orbit of the Act that they themselves passed. You couldn't make it up.’ Tony Wright MP (Lab)

‘It would be disastrous — I can put it in no other way ….. The House of Commons would be saying that the Freedom of Information Act was all right for everyone else...but we ….. having passed the Act, wanted to be exempt.’ David Winnick MP (Lab)

‘To try to change a law that we enacted so that the public's right of access to the whole public sector does not apply to what we ourselves do, would be a staggering misjudgement.’ Richard Shepherd MP (Con)

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The voice of sanity 3: press reactions

‘This maggot of a bill has crept on to the floor of the chamber while the front benches have looked the other way.’ Henry Porter, The Observer

‘a squalid and self-serving measure, backed by the Government and yet more regrettably by David Cameron's Tories’ Peter Oborne, Daily Mail

‘The Government is using the Maclean Bill as a Trojan horse to bring down the city it built but no longer likes. If MPs vote to support it on Friday, they will undermine years of effort to end the instinctive secrecy of the British political culture.’ Philip Johnston, Daily Telegraph

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Provisions of the Freedom of Information Act 2000

• Enacted November 2000; fully into force on 1 Jan 2005

• A legal ‘right to know’ - anyone may make a request in written form

• Applies to over 100,000 public authorities in England, Wales and Northern Ireland

• Authorities are obliged to respond within 20 working days

• Duty to advise and assist

• 23 exemptions and a public interest test

• Independent Information Commissioner

• Three stage complaints process

• Includes a records management CoP

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Objectives of the FOIA • No formal objectives are laid out in the FOIA itself• Implied objectives and benefits include:

– Breaking down the culture of official secrecy– Increasing the transparency of public authorities– Making government more accountable– Improving the quality of government decision-making– Improving government efficiency and service delivery– Increasing public understanding of government decision-making– Making public participation in the political process more effective– Increasing public trust and confidence in government

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FOIA 2000 in practice

•Estimated 150,000+ FOIA requests to public authorities in 2005

• 43 monitored central Govt departments received 33,688 ‘non-routine’ requests [38,000 in ’05]

•Of which 24,677 were ‘resolvable’

•Of which ‘only a fifth were withheld in full’

•384 appeals to the ICO resulted

•No formal monitoring of local government FOI requests

•Generally poor performance on time

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The role of the archivist and records manager in FOI

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Contributing to delivering the right to information

• Proper management of information, especially digital

• Advising and assisting – requesters and colleagues

• Involvement in publication schemes• Operating access systems • Managing the request process• Hearts and Minds

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Attitudes for archivists and RMs

• Showing openness to openness• Developing expertise in openness• Promoting systems for openness • Proselytising on openness – within and without• Balancing openness and closure judiciously• Future-proofing openness

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The role of the archivist/records manager in access to information

• Getting the message across – linking to the public• Fitting into management structures• Influencing, education and training • Providing expertise and guidance • Being seen as essential

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Issues and Problems

• Central/local split• Lack of clout• Bad positioning in the management structure• Lack of initiative• Lack of training• Inadequate networks

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THANK YOU

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http://www.ucl.ac.uk/foidp

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