Freedom of Information Act in the US & UK

A TALE OF TWO COUNTRIES AND THE PUBLIC'S RIGHT TO KNOW
Published The Straits Times, 4 Nov 2011

THE US: Few cared... until Watergate

WHEN the United States first gained a Freedom of Information Act (FOIA), few paid attention.

President Lyndon B.Johnson quietly signed the Act into law in 1966. It was the fulfilment of a decade-long struggle by journalists and a handful of Democrat congressmen.

But just a few years later, things would change.

In the early 1970s, public discontent was brewing against the backdrop of the prolonged Vietnam War. Many citizens felt the government had embroiled the nation in a needless conflict.

With revelations in the early 1970s that the administration of then-President Richard Nixon had engaged in political spying, public distrust grew.

In this climate of disillusionment, the government started to be seen not as a force protecting citizens, but one against which citizens had to be protected.

Things came to a head with the 1972 Watergate scandal.

A botched burglary at the Watergate office complex led to revelations of extensive cover-ups and abuses of power by the government.

Matters were not helped by the discovery of a secret taping system in the White House - and President Nixon's refusal to release the tapes.

As the scandal drew to a close two years later with President Nixon's resignation, freedom of information took on a new and urgent importance.

THE FACTS

It began with...

THE formation of a special sub-committee in Congress, when the Democratic Party gained control of the House in 1955.

Headed by congressman John Moss, the committee aimed to pass a law allowing public access to government records.

Then, the movement was supported mainly by the press, with little public pressure and a Republican government hostile to the idea.

Eventually, in 1966, the FOIA was signed into law. It came into force the next year.

However, the law lacked teeth. There was no time limit for agency responses, no penalties if agencies did not comply with requests, and no limits on how much they could charge.

It was only in the mid-1970s that the Act came to resemble its current form.

How it works

ANYONE, whether or not he or she is a US citizen, can file an FOIA request. After receiving the request in writing, the agency must respond within 20 working days.

The Act covers the executive branch of government: government departments, agencies and offices; federal regulatory agencies; and federal corporations.

But it covers neither the legislature, that is Congress, nor the judiciary. Nor does it apply to parts of government whose sole function is to advise and assist the president.

The Act applies only to the federal, or central, government. But individual US states have similar legislation.

The price of information

THERE is no initial fee for requests.

Agencies can charge for search time and duplication, though the first two hours and first hundred pages are usually free.

Certain fees are waived for news organisations and educational institutions.

And fees may be fully waived if the requested information will contribute significantly to public understanding of government, and is not chiefly in the requester's commercial interest.

Exemptions

THERE are nine exemptions under which agencies can refuse to release information. They include exemptions for:

- classified national security information;

- confidential business information;

- information that, if released, would be an invasion of someone's privacy;

- law enforcement information that, if released, might hamper enforcement, reveal confidential sources, and so on.

If a request is denied, the requester can appeal for the decision to be reconsidered. If this appeal is denied, the requester can seek judicial review.

Annual requests and refusals

DATA is collected on the number of requests, but agencies used to report combined figures for FOIA and Privacy Act requests. FOIA figures alone were released only from 2008.

The number of requests has ranged from 557,825 in 2009 to 605,491 in 2008.

To put that into context, the population of the US is more than 312 million.

Since 2008, about half of requests were granted in full. A fifth of requests were partially fulfilled in 2008, rising to almost two-fifths in 2009 and last year. Information was completely withheld for 4 to 7 per cent of requests.

Who asks?

THE US government does not release data regularly on who uses the FOIA.

A 2006 report by the Coalition of Journalists for Open Government, which surveyed 17 bodies, found that more than 60 per cent of FOIA requests were made by commercial interests. Of these, a quarter were filed by professional 'data brokers' on behalf of clients.

Requests from individuals formed about a third of the total, while only 6 per cent came from the media.

But requester profiles might differ by agency. Between 1995 and 2000, the vast majority of FOIA requests to the Federal Bureau of Investigation (FBI) were from private citizens.

Taxpayers' money

THE annual cost of FOIA-related activities ranges from US$338 million (S$431 million) in 2008 to US$416 million last year. Only about 3 per cent is recouped in fees.

This is about 0.01 per cent of total government spending, which was US$3.5 trillion last year.

IN PRACTICE

Growth spurt

THE FOIA gained importance in the mid-1970s as the political climate changed.

By dealing a death blow to public trust in the government, the Watergate scandal was instrumental in stirring up support for freedom of information.

In 1974, President Nixon resigned in the face of possible impeachment. That same year, Congress moved to strengthen the FOIA, by means of several amendments.

These narrowed the scope of the national security and law enforcement exemptions, allowing much more information to be released.

In 1976, the Act was amended again to clarify - and limit - what information was exempt from disclosure.

The Privacy Act was also enacted in 1974. It restricts the government's ability to collect and disclose information about individuals. The Act also allows individuals to request government-held information about themselves.

Since the 1970s, health and safety issues have been a major theme of FOIA requests. These have resulted in cars being recalled, chemical substances being banned, and mandatory warning labels for certain types of medication.

The media has used the FOIA to reveal wasteful public spending and unethical government conduct, such as torture.

And in a reflection of the political cynicism dating back to the 1970s, the FOIA has been heavily used to scrutinise the conduct of US intelligence agencies, the Central Intelligence Agency and the FBI - particularly with regard to their surveillance of citizens.

But it has not been a straightforward march towards transparency. Over the decades, the Act has been both expanded and restricted, by legislation and through 'executive orders' passed by the government without the assent of Congress.

Some shrinkage

IN THE 1980s, agencies' ability to withhold information under certain exemptions was increased. The 1990s saw the expansion of the FOIA instead, while the past decade has seen movement in both directions.

And each new government has had its own attitude towards FOIA compliance, with some administrations being more secretive than others.

THE UK: Tony Blair's bitter regret

'FREEDOM of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop.'

Such was former British prime minister Tony Blair's bitter regret - expressed in his memoirs - over introducing the Freedom of Information (FOI) Act to the United Kingdom.

In opposition, his party had called for precisely that. 'Unnecessary secrecy in government leads to arrogance in government and defective policy decisions,' said the Labour Party's 1997 manifesto.

But a decade later, Mr Blair bemoaned the Act's undermining of the government's ability to have 'frank conversations', and the media's wielding of it as a weapon.

'For political leaders, it's like saying to someone who is hitting you over the head with a stick, 'Hey, try this instead', and handing them a mallet,' he wrote in his memoirs, published last year.

Given the scandals uncovered in the mere six years since the Act's passage, Mr Blair's regret seems understandable.

From commercial lobbying to MPs' expenses, scoops acquired under the FOI Act have not painted a flattering portrait of government.

THE FACTS

It began with...

THE Labour Party's 1974 election manifesto, which included a commitment to introduce an FOI Act.

Labour won the election, but changed its mind about the Act the next year. Instead, it tried other ways of increasing government openness, such as reducing the scope of the Official Secrets Acts and encouraging voluntary releases of information.

Still, the commitment remained in every Labour manifesto during its years in opposition, from 1979 to 1997. In 1997, Labour returned to government and made good on its promise.

The Freedom of Information Act was passed in 2000 under Prime Minister Tony Blair. It came into force in phases, with individual right of access granted only in January 2005.

How it works

ANYONE - regardless of age, location, or even nationality - can request information from Britain's public authorities.

These include government departments; Parliament; the local authorities; the police; the armed forces; the National Health Service; government-owned companies; and publicly funded organisations, including schools and universities.

After receiving the request in writing, these organisations must provide the information within 20 working days.

The price of information

REQUESTS are free, unless it costs more than £450 (S$920) to get the information, or £600 for requests made to the central government or Parliament.

If those limits are reached, the body can refuse the request. But if it costs less to fulfil, requesters will be charged only for services such as photocopying and postage, not for the information itself.

Refusals

THERE are two types of exemptions under which requests can be refused.

One type is absolute exemptions. They include information that:

- can be obtained by other means;

- relates to security matters.

With the other type - qualified exemptions - the body receiving the request must decide whether the public interest is benefited more by the information being withheld or released.

This includes information that:

- elates to the formulation of government policy;

- might prejudice international relations;

- might compromise law enforcement.

If an authority decides the information cannot be released, it must tell the requester, explaining which exemptions were applied and why.

A requester can ask the body to review its decision. Requesters who disagree with the result can appeal to the Information Commissioner's Office (ICO), an independent body that can order wrongfully withheld information to be released.

Those who disagree with the ICO's decision can in turn appeal to the Information Rights Tribunal.

Annual requests and refusals

CENTRAL government bodies have received 33,000 to 44,000 requests each year since 2005. The population of the UK is more than 61 million.

Figures for all the public authorities do not exist. A 2006 independent report estimated the public sector receives at least 87,000 requests each year, in addition to those received by government. But the report's methodology has been criticised.

Every year, about 60 per cent of requests are granted in full. For another 15 per cent, information is partially withheld. In about a fifth of cases, the information requested was completely withheld.

Who asks?

MOST requesters are individuals. Businesses account for about a fifth of requests, and journalists for between 10 and 20 per cent. But media requests tend to be the most complicated and costly.

Taxpayers' money

THERE are no regular estimates of how much FOI compliance costs the government - and by extension, taxpayers.

The same 2006 report estimates that dealing with FOI requests costs £24.4 million a year to the central government, and £11.1 million a year to other bodies.

The total, £35.5 million, is 0.007 per cent of government expenditure in 2005, which was £524.6 billion.

IN PRACTICE

Revelations and scandals

INFORMATION obtained under the Act has made headlines - from how much public funds rich landowners receive in farming subsidies, to the number of patients who died in operations performed by every heart surgeon in the UK.

But perhaps the biggest revelations came in 2009, when a scandal erupted over MPs' expenses claims.

MPs in the UK can claim expenses and be reimbursed from public funds.

Under the FOI Act, the parliamentary authorities had been ordered to publish details of such claims.

A heavily edited document was being prepared for public release - but an uncensored copy was leaked to British newspaper The Daily Telegraph, which began publishing details of the claims.

Some MPs were found to be abusing the system. For instance, MPs can claim expenses for the cost of having a second home, such as renovation and furnishing.

However, some would switch which home was listed as their 'main home' and which was their 'second home', allowing them to claim for both properties.

There were also some eyebrow-raising items among the claims, from thousands of pounds spent on gardening to petty purchases such as a trouser press.

The revelations sparked public outrage - and a wave of MP resignations, both from the then-ruling Labour Party and the opposition Conservative Party.

Chequered history

THE Act has been dogged by controversy.

From the start, it was criticised for lacking teeth, and giving too much leeway to public bodies to refuse requests.

There have since been several failed attempts to weaken its power.

In 2005, then-lord chancellor (a senior government position) Lord Falconer suggested changing how costs are calculated.

This would make more requests fall over the cost limit, meaning that they could be refused. The proposal was meant to curb frivolous requests, but met with resistance from MPs and the public, and was not introduced to Parliament.

In 2006, Conservative MP David Maclean tabled a Bill to remove MPs from the Act's scrutiny. It did not become law.

But things have since taken a different turn. In January this year, Deputy Prime Minister Nick Clegg suggested that hundreds more organisations could be covered under the Act.

In August, a public consultation was launched to improve FOI. The consultation document called for changes such as raising the cost limit to £1,000, and setting time limits on internal review of requests for data.