The Times today has a set of stories about the functioning of the Freedom of Information Act and how a Department of Constitutional Affairs body known as the Central Clearing House for Accessible Information, which is meant to ensure consistancy in central government responses to FOI requests, appears instead to be frustrating and delaying FOI requests.
These are important stories because anyone concerned about the proper functioning of government openness laws need to be on the lookout for emerging adminstrative practices that slow down the disclosure system or cause different classes of requests to be treated differently.
The experience of other countries in this regard is instructive. Consider the situation currently being uncovered by an inquiry in Queensland, Australia:
It was “standing practice” for public servants working in the Freedom of Information unit at Queensland Health to alert the government of the day to FOI applications from the Opposition or media, it has been revealed.
Michael Clare, a former public servant who yesterday blew the whistle on successive governments allegedly taking documents to Cabinet to make them exempt from FOI laws, told the health inquiry there was an orchestration between the department and ministerial office when it came to requests for public documents.
“The FOI unit had a standing practice of flagging FOI applications that were received from areas of the opposition or the media and specifically preparing a briefing note on those matters and sending them up to the director-general and to the minister’s office just to alert them that potentially sensitive matters were covered by an application,” Mr Clare said.
This also goes on in Canada, where it is called “amber-lighting”. After journalist Ann Rees discovered the amber-lighting process (PDF), Alasdair Roberts, a professor of public administration at Syracuse University’s Maxwell School, demonstrated statistically that it had the effect (PDF) of significantly slowing down those requests coming from journalists and opposition politicians.
When particular types of FOI are routed through special channels, they take significantly longer to process than others, and are more likely to miss the statutory deadlines.
Even though requests from the media and political groups are likely to be precisly the kind that such laws are designed to generate — probing, timely questions about the conduct of government — they are actually less likely than other requests to be dealt with in a timely fashion when a formal or informal “amber-lighting” system is in place.
The Clearing House is not the last step in the FOI oversight system in central government though: The most sensitive FOI requests sent to the Clearing House can be referred another step, to the Cabinet Office’s Histories, Openness and Records Unit.
Roberts, who has also studied the UK FOIA, has expressed concerned concern that the Clearing House and Cabinet Office referral system could be slowing down requests. He has been doing research into what type of requests are referred to these bodies.
Britain should avoid the establishment of a system of amber-lighting requests under its nine-month-old Freedom of Information regime.