FOIA without the Lawyer: Interview with Brendan Montague

Dan Hind is the author of two books: The Threat to Reason and The Return of the Public, he speaks to Brendan Montague one of the authors of FOIA without the Lawyer about his experience of using the Freedom of Information Act.

Q1: The Freedom of Information Act has been in force in Britain since 2000. What kind of impact has it had on our ability to hold government to account? How has it changed the way journalists approach stories?

Brendan Montague: Transparency legislation has had a dramatic and lasting impact on government in the United Kingdom because it has led to a significant amount of information about world defining events coming to light. For example, we now have documentary evidence that BP was lobbying Tony Blair’s government for access to oil before the invasion of Iraq, thanks to FOIA requests made by Greg Muttitt, author of Fuel on the Fire.

Only this week, Rob Evans has after seven years of appeals apparently secured access to letters written to government departments by Prince Charles which should provide an unprecedented insight into the influence of monarchy in our democracy. Indeed, FOIA has been so powerful that Tony Blair has characterised it as the worst mistake of his premiership claiming it had been “utterly undermining of sensible government”.

Having said all that, there are some very severe restrictions and transparency in the UK falls far short of what should be expected in a modern democracy. FOIA has been seriously limited by the fact public bodies can rely on more than a dozen exemptions to prevent the publication of requested information. The coalition government resorted to the ministerial veto to block the publication of the risk register examining radical reforms of the NHS despite the fact the Information Rights Tribunal had established the public interest in publication outweighed any harm.

Moreover, these exemptions are abused by departments and authorities and in many cases it takes some detailed legal knowledge to begin to understand how to challenge such misuse. Political expediency still trumps transparency and openness whatever the political parties may claim at the election stump.

Q2: Can you tell me a little about what prompted you to write your handbook FOIA without the Lawyer? What does it set out to do for the reader?

Brendan Montague: There are many guides to FOIA aimed either at lawyers or campaigners which do a really good job of summarising the legislation and explaining the exemptions and how they would apply to different government departments. For example, Heather Brooke’s Your Right To Know (last updated in 2007) was groundbreaking. And yet our experience when we first went to the Information Tribunal was there were no step-by-step “how to” guides on the procedures and necessary steps. The Information Commissioner’s website and the Information Tribunal website did not – as far as I could find – tell the public what a “skeleton argument” was or what a “witness statement” should aim to achieve.

We decided to start with a blank sheet of paper and try and describe to journalist exactly how they could make a FOIA request and how they could themselves navigate the law and the available information to make their case as clearly and effectively as possible. We wanted to avoid reproducing the dense and confusing information made available on government department websites. In the course of making almost 1,000 FOIA requests and taking some of them through the tribunal system we had developed a methodology which could be applied to any request to any department challenging any exemption and that is what we wanted to share with our colleagues in the media.

Reporters do not have superpowers – although journalist inquiry has in some cases been a good reason to force disclosure – so our guide is just as useful to campaigners, researchers, lawyers and members of the public.

Q3: Has civil society broadly defined made as much use of the FOIA as it might have? Could it be used in a more targeted way?

Brendan Montague: Campaign organisations and private individuals have achieved incredible disclosures through FOIA. Maurice Frankle at the Campaign for Freedom of Information was central to forcing the legislation onto the statute books in the first place and is currently engaged in finding appeals which, if successful, would set a precedent that would result in the release of treasure trove after treasure trove of new information. Greenpeace and Friends of the Earth have both been among the most imaginative and successful in using the Environment Information Regulations and FOIA to force the disclosure of government data.

We know that the political parties themselves have used FOIA to better understand what government is planning and implementing. Defence lawyers have also used FOIA to obtain documents held by police forces in cases of miscarriages of justice. And private individuals have made requests that have changed – or at least allowed us to better understand – the course of history. Much of this activity has largely gone on under the radar although some has made front-page news.

Q4: There is growing evidence that ministers and others are trying to find their way around FOIA - private email accounts, unminuted meetings, government by post-it note. Does this worry you?

Brendan Montague: The public should be extremely concerned about the lengths the coalition government appear to be taking to prevent transparency and openness in government. We have anecdotal evidence that some government departments have resorted to using instant messaging services which are not stored so that email-style communications can take place without leaving a record or trace. At the same time, there are some departments which appear to be accelerating the process of deleting and dumping more historic documents – those more than five years old – to prevent embarrassing revelations. Just before the legislation was enacted the Labour government hired Oxford graduates to enter parliament and destroy records that would otherwise have to be released.

However, it does appear that politicians and senior civil servants are still keeping records in most instances. The fear of leaks is greater than the fear of FOIA disclosures. Moreover, a modern day Sir Humphrey Appleby will be more concerned about retaining proof of a decision or guidance at a meeting to protect themselves than they would destroying a record to protect the reputation of a minister.

Ben Worthy published More Open but Not More Trusted? The Effect of the Freedom of Information Act 2000 on the United Kingdom Central Government, in which he confirmed that: “The dominant view is nothing has changed, with a minority describing a slightly positive alternation where, for example, ‘inappropriate’ comments were removed from minutes or notes. Nor was there evidence for a ‘chilling effect’... Many of the officials pointed out that the dangers of not having a decision outweighed the dangers of having one and it being released.”

Q5: A lot of people don't know much about the Act's provisions. Is there a particular format that has to be followed in making a request under it?

Brendan Montague: Making a FOIA request is so simple that many people will be doing it without even realising. When you send an email asking a question or for information to your local council, health trust, police station or central government department you are in fact making a FOIA request.

It is the public body, not the person asking for information, who must recognise that the legislation comes into play, interpret the legislation and where necessary provide all the documentation or raw data. There is a legal right to know. You don’t need to state that you are making a request; you don’t have to live in the UK, in the overwhelming majority of cases you don’t need to provide an address.

However, the real difficulties start when the public body refused to provide the information requested by using one of the many exemptions. The legislation sets out a wide set of reasons why some information should not be given out – commercial confidentiality, national security, British interests abroad, data protection and so on. The use of these exemptions has been tested and argued in complaints to the Information Commissioner, in tribunals and the Supreme Court. Therefore, it can prove extremely difficult to understand when an exemption should or should not be used. To make matters worse, it seems increasingly clear that government departments will misuse exemptions, quote tribunal cases that are actually irrelevant and cause the most outrageous delays in order to befuddle and demoralise the requester to the point where they simply give up.

There are, of course, brilliant and committed information officers who work incredibly hard to make sure the public interest is being served – through either the disclosure or the non-disclosure. But this is far from universal. It is vital that government is open and accessible. Therefore there is a profound necessity to fight those bureaucrats who hide behind process and complexity to frustrate the public and prevent transparency.