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Guest Blog: Transparency and Democracy

One hugely important principle of the UK Freedom of Information Act is that it is requester blind. Everyone who puts in a FOIA request should be treated in the same way, regardless of whoever they are.

That means that all FOIA requests should be treated the same way, whether they are from a UK citizen living in the UK, a UK citizen living overseas, or a non-UK citizen.

It should not make any difference whether the requester is a journalist, a political activist, a lobbyist, a commercial company or an ordinary citizen. Everyone should be treated equally.

For that reason there has never been any need for a person making a request under FOIA to supply proof of residency, or even include their address in a FOIA request.

It is perfectly acceptable to make a FOIA request by phone, email or even Twitter.

But this important principle of Freedom of Information is under attack.

In March last year, the First Tier Tribunal, out of the blue, began issuing a series of stays on FOIA appeals brought by people who were based outside the UK.

The tribunal began challenging whether people had the right to use the Freedom of Information Act if they happened to live outside the UK.

That decision threatened important work by investigative journalists, both in the UK and overseas. It impeded public interest investigations, including Italian journalist Stefania Maurizi’s investigation into the police surveillance of a journalist working for Wikileaks in the UK.

Investigative journalist Emmanuel Freudenthal’s enquiry into how Ebola-infected blood samples ended up being transferred – without the consent of patients – from Sierra Leone to the UK chemical weapons establishment was put on hold.

Important work by Open Democracy shows that government departments routinely delay and obfuscate to avoid having to respond to FOIA requests.

In one practice, known as stone walling, government departments simply ignore Freedom of Information requests, leaving requestors in limbo. They can either give up or appeal to the ICO – a process that easily takes six months or more.

Since the Freedom of Information Act came into force in 2005, each year has seen government departments become less responsive.

Ten years ago there were three FOIA requests granted in full for every one refused. Today, it is getting close to one FOIA request granted for every one refused.

Former shadow chancellor, John McDonnell, in a seminar in April, put it this way: “The level of obfuscation in response to Freedom of Information requests has become an art form”.

It should be irrelevant who is making the FOIA request, but as the Open Democracy work has shown, the requester blind principle is no longer respected.

There is evidence that FOIA requests from journalists and campaigners are often managed by central teams which effectively control what information gets sent to people, based on who is requesting it and why they want it.

That means journalists, campaigners, NGO’s, and potentially anyone who holds a different political view to the government of the day, are at risk of being treated differently.

Through the persistence of Stefania Maurizi, and Barrister, Estelle Dehon, the First Tier Tribunal confirmed in January that there were ‘no territorial limitations for FOIA’, and dismissed arguments that the Freedom of Information Act could only be used by British citizens living in the UK.

The decision was rightly described by Ms Dehon as a “victory for free speech and openness,” and for investigative journalism.

But Freedom of Information is still under pressure. There is still pressure in the civil service and among government to resist openness.

The resistance to disclosing contracts awarded to cronies of government ministers during the pandemic is just one example.

Another is the creation of new government agencies, such as the Advance Research and Invention Agency (ARIA), which are inherently exempt from Freedom of Information.

All of this is damaging to democracy.

Government information is paid for by the tax payer and the presumption should be that information is disclosed to the public, unless there is a lawful and genuine reason not to disclose it. Freedom of information is a democratic right and one that should lead to better government.

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About Bill Goodwin

Investigations Editor of tech publication Computer Weekly, Bill specialises in privacy, surveillance and national security.
In the latter part of 2020 and early 2021, he took a special interest in, and covered, a number of the cases affected by the Territorial Jurisdiction question which resulted in a Tribunal which upheld the notion of 'No Territorial limitation' for FOI in late January 2021.

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