Access legislation and the
right to information the role of archivists and records managers
Duncan Simpson
The Constitution Unit, UCL
ARMReN Research Workshop
13 September 2007
Outline of presentation
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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:
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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 decisionmaking
– 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
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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
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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
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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
For further information:
visit our website at
http://www.ucl.ac.uk/foidp
or contact
ds@dsimpson.eu
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