Tories lacking transparency: 14 years of undermining Freedom of Information

I’ m not quite sure how many articles I’ve written about the state of Freedom of Information. I know it’s a lot, but it is getting tiresome to report on a new decline in transparency every time the government releases its latest FOI statistics. ‘Worst year on record’ and ‘growing government secrecy’ have become my go-to headlines.

As openDemocracy writes in our latest report on FOI, just 34% of requests sent to government departments and agencies were granted in full last year. Once upon a time, in 2013, that number was 55%. And even back then, the government said the “proportion of requests granted in full has generally followed a downward trend since 2005” – the year the FOI Act came into force.

The FOI Act has been responsible for many major news stories and investigations, and is a vital tool in holding the powerful to account. But it’s getting harder to obtain information, forcing people to appeal against rejections. These FOI battles can go on for years (I should know – I’ve taken around a dozen of these cases to tribunal). 

Since David Cameron became prime minister in 2010, each successive Conservative government has further undermined FOI. Here’s a look back at how the party has presided over a major decline in transparency standards over the past 14 years – and a look forward to whether things could improve after July’s general election.

Cameron’s war on ‘clutteration’

I first became aware of how powerful the FOI Act can be after learning about its role in the 2009 MPs’ expenses scandal, when it was revealed that politicians had claimed expenses for their second homes, biscuits, duck houses and moat cleaning – all at the cost of the taxpayer. In the aftermath, the then-prime minister, Gordon Brown, and the Conservative leader, David Cameron, both promised greater transparency in the publication of Commons expenses. 

So when Cameron became prime minister of the Tory-Liberal Democrat coalition government the following year, he set about introducing his transparency agenda: making more data available on government spending and requiring government departments to publish registers of ministerial meetings, hospitality, gifts and travel. So far, so good – although we would later find out that these transparency releases can be inaccurate and lack detail, something highlighted during the Greensill lobbying scandal that involved er, David Cameron.        

With an apparent new transparency drive, surely the coalition government was keen to protect and strengthen FOI? Not so much, it turned out.

In late 2011, the Financial Times claimed that Education Secretary Michael Gove (more on him later) and his advisers were conducting government business using personal email addresses. When these emails were asked for under the FOI Act, civil servants couldn’t find them. Gove argued that ministers’ private email accounts aren’t covered by the act, but the head of the information rights watchdog – the Information Commissioner’s Office – ruled that this is not the case if the emails involve government business.

Months later, in early 2012, Cameron said FOI “furs up” the government, claiming publication of open data is a better way of ensuring transparency. “That is freedom of information,” he said, though he quickly added: “Don’t worry, we are not making any proposals to change that.”

That sentiment didn’t last long. By the end of the year, the government had drafted a series of restrictions to the act, which ranged from reducing the cost limits (the government can reject an FOI where it deems the cost of finding the information too high) to introducing charges for people who appeal an FOI rejection to the information tribunal. The proposals were ultimately dropped after a series of open letters to the government protesting them.

It was around this time that I finished my journalism training, and was eager to file FOI requests in my first few jobs. At the time, just 55% of requests sent to central government departments were granted in full, though I was still able to get hold of tranches of unredacted documents. 

But with an election nearing, it seemed Cameron was not going to drop his issue with the FOI Act, which he had labelled “clutteration”.

— PM David Cameron and Deputy PM Nick Clegg at 10 Downing Street, in 2010.

Cameron Part Two: A surprise report

By May 2015, Cameron had been reelected – this time without the need to be propped up by the Lib Dems. 

The Guardian’s ten-year FOI battle to obtain Prince Charles’ letters to ministers – nicknamed the ‘black spider’ memos after Charles’ handwriting – concluded around this time, resulting in the release of the future king’s correspondence. This revealed lobbying at the “highest political level”.

Two months later, the government set up the Independent Commission on Freedom of Information to review how the FOI Act was working, ten years on from its introduction. Its terms of reference included looking at whether the act “adequately recognises the need for a ‘safe space’” when ministers and officials come up with policies and share advice. 

Alarm bells sounded, with concerns that the commission would propose a crackdown on FOI that would make it easier for government departments to refuse requests. More open letters were sent, many of which flagged the commissioners’ previous (negative) views on FOI.  

More warning shots were fired as the government lamented the supposed ‘misuse’ of FOI. During a parliamentary debate in October 2015, Chris Grayling, the then-leader of the House of Commons, said the FOI Act is “misused by those who use it as, effectively, a research tool to generate stories for the media, and that is not acceptable”.  

But to many people’s surprise, the final report from the commission was sympathetic to greater openness, and in March 2016, the (presumably slightly disgruntled) government announced that it would not make any legal changes to FOI.

— PM Theresa May clapped into 10 Downing Street, in 2016.

Cameron’s out, May’s in, FOI’s still dismal

Later that year, the UK voted to leave Europe. Cameron, who campaigned against doing so, resigned and was replaced by Theresa May, his former home secretary.  

While Brexit dominated headlines, an analysis by the Institute for Government in April 2017 revealed that the government was “continuing to become more secretive” under May. The think tank found that the number of responses to FOI requests that were fully withheld by government departments had grown from 25% in 2010 to 41% at the end of 2016. The Department for Exiting the European Union was among the worst offenders for withholding information.  

By the end of 2017, I had joined openDemocracy. It was certainly becoming more difficult to access information – particularly about ministerial meetings – under the FOI Act at that point. Calls for the act to be extended to contractors delivering public services, meanwhile, were growing louder. In January 2019, then-information commissioner Elizabeth Denham brought out a comprehensive report that made the case for reform. But these proposals were firmly rejected by the government.  

Later that year, May quit, sparking a leadership contest. Just before her successor Boris Johnson entered office, openDemocracy won a significant information tribunal victory. We had requested copies of the research materials that the European Research Group – a powerful group of Tory backbenchers, who played a role in forcing May from Number 10 – had given to the Independent Parliamentary Standards Authority, the body set up in the wake of the MPs’ expenses scandal.

After leaving office, May reflected in her book, The Abuse of Power: Confronting Injustice in Public Life, how the FOI Act, in her opinion, had led to “too many general fishing expeditions”. She wrote: “With so many fishing expeditions being launched to create stories rather than necessarily identifying real problems, responding to them once again becomes an act of defence.”

— PM Boris Johnson leaving Number 10, in 2022.

Boris Johnson’s government by WhatsApp

Less than a year into Johnson’s government, COVID-19 hit. This caused a backlog in FOI cases among public authorities – which in turn worsened the ICO’s backlog of FOI complaints. As would later come to light, ministers and officials were at this time using WhatsApp to discuss the handling of the pandemic, sparking concerns that important information could be lost from public record. 

Journalists did indeed find it extremely difficult to access information about the government’s pandemic response. Requests for detailed data on care home deaths were refused, as was the release of a secretive COVID “lessons learned” review conducted by the Department of Health and Social Care (openDemocracy had to fight for two years to get hold of it).

But even before the pandemic hit, the government was becoming more secretive. Just 43% of “resolvable” FOI requests to government departments and agencies were granted in full in 2019. The following year, this fell again, to 41% - the lowest figure since records began in 2005.

In November 2020, openDemocracy published its first report on the state of FOI. We revealed the extent of elementary mistakes being made by public authorities when dealing with FOI requests, as well as that government departments were cynically undermining FOI by failing to respond – or ‘stonewalling’ – and the ICO was failing to enforce the act.

We also revealed the existence of the Clearing House, a secretive Cabinet Office unit that was vetting sensitive requests for information (the Cabinet minister at the time, Michael Gove, called our reporting “ridiculous and tendentious”). Over the next two years, our work on the Clearing House led to a significant tribunal victory and sparked an inquiry led by a committee of cross-party MPs, who criticised the government’s “slide away from transparency”. Fleet Street editors signed an open letter coordinated by openDemocracy demanding urgent action to investigate the handling of FOI requests.

Ultimately, the Clearing House was disbanded in late 2022. But by this point, there were already more signs that FOI was under attack. In February of 2021, the government announced that its £800m scientific research body, the Advanced Research and Invention Agency, would not be subject to FOI. MPs and campaigners urged the government to reverse the decision, and openDemocracy probed the underlying evidence for it, which turned into an FOI battle. The government’s case, experts said, was “weak”.

By the end of 2021, the proportion of FOI requests granted in full dropped again to 40%. openDemocracy published its second report on the state of FOI, revealing yet more concerning transparency trends. We also exposed the involvement of special advisers in the FOI process. To round off the year, a government minister branded the FOI Act a “truly malign piece of legislation”.  

Come 2022, Denham was replaced as information commissioner by John Edwards. More than 110 MPs MPs, journalists and campaigners signed openDemocracy’s open letter calling on the ICO to better enforce FOI.

— PM Liz Truss chairing her last Cabinet Meeting, in 2022.

40 days of Truss

Liz Truss managed only about 40-odd days as prime minister, so didn’t really have time to undermine the FOI Act (although she did later criticise it in her book, Ten Years to Save the West, and failed to keep records of discussions about FOI). 

But the call for the ICO to better enforce FOI seemed to encourage the commissioner to toughen up. In September 2022, the ICO hit the Department for International Trade with an enforcement notice – the first it had issued in seven years – over its “persistent failures” in handling FOI requests.

— PM Rishi Sunak in Downing Street, in 2024.

Fresh rights restrictions under Sunak

After Truss came Rishi Sunak, and by the end of 2022, the amount of FOI requests granted in full had dropped once again to 39%. And at the end of the following year, it fell to 34%.

In March 2024, openDemocracy brought together dozens of campaigners, journalists and lawyers to discuss the current state of FOI and the same trends as we originally raised in our 2020 and 2021 reports kept coming up: refusals, delays and stonewalling.

But it’s not just FOI that’s suffering. In May 2024, we revealed how public authorities – including big central government departments such as the Home Office – are undermining people’s basic legal rights in accessing their personal data.

What next for FOI?

So with an upcoming general election, what does the future look like for FOI? The truth is, I’m not sure. None of the major political parties made any explicit mentions of FOI in their manifestos.

But whoever comes into power must recognise that FOI is essential in a democracy, and that it needs protecting and strengthening to urgently reverse the worrying trend of FOI requests being refused.  

If Keir Starmer becomes the next prime minister, as is widely expected, I’ll be sure to flag this sentence from an essay he wrote back in 2021: “Where the current Tory government has muddied the waters of transparency on the money it spends or the things it does, I want to make it easier to hold government to account. 

“That means everything from ending the outrageous way government departments refuse freedom of information requests to ensuring the next Labour government gives updates on our progress delivering on our key promises.”

Sources:

▪ This piece was first published in openDemocracy and re-published in PUBLIC SQUARE UK on 2 July 2024 under a Creative Commons Attribution-NonCommercial 4.0 International licence. | The author writes in a personal capacity.

▪ Cover: Flickr/Number 10. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)