Justice Secretary Michael Gove has confirmed that he wants to “review” the Freedom of Information Act and that “we get back to the founding principles” of the legislation. 

“We want to review the operation of the original freedom of Information Act”, Gove said in the House of Commons today as he answered questions from MPs.

His statements come two days after the Financial Times reported that he wanted to make changes to the Act which would make it fundamentally easier for more requests to be refused.

“There have been some judgement that have been made which have actually run contrary to the spirit of the original Act and some of those behind the original Act including the former Prime Minister Tony Blair and the Home Secretary at the time who introduced the legislation, Jack Straw, have been very clear about the defects in the way that the Act has operated,” he said.

“It is vitally important that we get back to the founding principles of Freedom of Information.

“Citizens should have access to data they should know what is done in their name and the money that is spent in their name, but it is also vital that the conversations between ministers and civil servants are protected.”

Under the FOI Act the exemptions of Section 35 and Section 36 allow for requests to be refused when the relate to the formulation of government policy, ministerial communications, or would prejudice the conduct of public affairs.

When asked if he was embarrassed by the fact that he would be reducing transparency by increasing the powers of the ministerial veto, which his predecessor Dominic Grieve used in an unlawful way, Gove said it is important that people know who ministers have meetings with.

“But what is vital is that we protect civil servants by making sure they can give full and frank advice,” Gove continued to say.

“Sometimes as well as respecting transparency we have to respect confidentiality as well.”

In answer to a another question he said “we do need to revisit the Freedom of Information Act” and that it is “vital” that civil servants can speak “candidly”.

“I think there has been a worrying tendency, in our courts and elsewhere, to erode the protections for that safe space for policy advice,” he said.

The idea that civil servants will not make records of their discussions with ministers if they fear their discussions will be disclosed is referred to as a chilling effect in FOI.   

However, the Information Commissioner has previously said that the idea there is a chilling effect is “greatly overdone”. This view is supported by academics.

“Studies show that there is very little hard, first hand evidence of a chilling effect caused by FOI,” said Robert Hazel to the Justice Select Committee’s Post Legislative review of the Act in 2012.

“But the belief persists, particularly among ministers and their close advisers, that FOI has eroded the safe space which they need to argue and deliberate with each other in private. The fear may not be wholly rational…”

The Justice Select Committee, in its conclusions, said it was skeptical about whether the safe space for advice is being eroded.

“One of the difficulties we have faced in this inquiry is assessing how real those threats are given the safeguards provided under the current FOI legislation and what, if any, amendments are required to ensure the existence of a ‘safe space’ for policy making” the committee said.

The exemption at Section 41 also provides an absolute exemption for information which has been provided in confidence.

The Campaign for Freedom of Information highlighted the hypocrisy in Gove’s announcements by showing that his former department benefited from the parts of the FOI Act which protect private space.

“The Information Commissioner and Tribunal already take steps to ensure that advice is protected where disclosure would harm the public interest,” said Campaign’s director Maurice Frankel.
“But it does not adopt a blanket approach.
“Mr Gove should know this: earlier this year the Tribunal ruled the advice he had received as Education Secretary before cancelling Labour’s Building Schools for the Future programme should not be disclosed.
“Releasing it would expose the working relationship between ministers and officials and undermine the future provision of frank advice, it said.
“But in other cases it has ordered disclosure, particularly where the advice is anodyne or old or the arguments for confidentiality are implausible.”

 

I am a journalist and author. I am a staff writer at the UK edition of WIRED magazine and in 2015 my book, Freedom of Information: A Practical Guide for UK Journalists, was published. I created FOI Directory in 2012.