Why the transparency backlash must be fought

FOIMan fears a backlash against FOI and transparency in the UK – and highlights arguments over their value in the US.

Sunrise or sunset for transparency?

Sunrise or sunset for transparency?

One of my fears following the election of a Conservative majority government earlier this month is that it may herald a backlash against FOI in the UK. My Act Now Training colleague, Ibrahim Hasan, has written a really good post outlining what changes may be in the offing under this government. Fans of transparency have reason to be pessimistic.

The Prime Minister has gone on record with his criticisms of FOI. Most recently, he expressed a desire to The Times to:

…declutter government. What I call the buggeration factor, of consulting and consultations and health and safety and judicial review and FOI…

I’ve written previously of my suspicions that Simon Hughes, the former Liberal Democrat Justice minister, had opposed attempts by Conservative colleagues to make it easier to refuse requests on grounds of cost. That defence is now gone. The new Justice Secretary, Michael Gove, is unlikely to be enamoured of FOI given his previous experiences.

This antipathy at the top will be encouraged by others who are sceptical of FOI’s value. Given how readily the government was moved to strengthen the exemption protecting correspondence with the monarch and her heirs, Clarence House and the Royal Household will feel able to push for more control following the release of Prince Charles’ correspondence. The Local Government Association will issue more press releases about dragon attacks, exorcisms and asteroids. Universities UK will argue once more that higher education institutions ought not to be covered by FOI. Businesses and charities in receipt of public funding will express a sigh of relief that Labour’s plans to extend FOI to them will not happen.

A reaction against FOI will not be unique to the UK. Other countries are experiencing a backlash against their transparency achievements. Alasdair Roberts, an academic who has been studying FOI in Canada and the US for decades, has written a fascinating paper which seeks to refute criticisms of transparency in the US.

The US critics argue that transparency has become a knee-jerk reaction to any perceived problem in society, but that often it creates more problems, making government and institutions less effective. Roberts’ response addresses these criticisms directly with three arguments.

Firstly these writers tend to conflate several forms of transparency. For example, requirements on certain sectors and services to publish performance indicators actually help governments achieve their goals, and ought to be distinguished from accountability requirements on the government such as FOI. Not all transparency has the same aims or results.

Secondly he argues that when there is a crisis, transparency is not the first reaction of the public or politicians. Instead the initial response tends to be to enhance control over events. Calls for transparency tend in fact to be the result of expansions of executive and bureaucratic power. So in the 1960s and 1970s there was a big increase in executive power in the US which in turn led to more calls for transparency – resulting in the US FOI Act and similar legislation. It is possible to see parallels with the rise of “presidential-style” government in the UK especially under Margaret Thatcher and Tony Blair, and for example, executive politicians in local government, resulting in our FOI Act and other openness rules.

Thirdly what Roberts argues is that when we see calls for more transparency, it is not because people want to know more about the institutions that are already relatively open to them; it is usually because the way things are done has changed and therefore more transparency is required in order to maintain the same level of openness as before. We have seen this in the UK with the outsourcing of public services which in turn has led to calls for FOI to be extended.

Roberts finishes by making an important point, as valid in the UK now as in the US and elsewhere. Transparency and FOI critics want advocates to accept the status quo. But change in government and administration is constant. If transparency isn’t similarly adjusted, it will naturally erode. To preserve our right of access we must fight, not just for what we have, but for more. If we fail to do this, we will soon find ourselves in the dark just by standing still.

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