During its extended journey to its own legislation, the Blair Government had the advantage of having time to learn how the various United States arms of government squirm and slither around the equivalent Act, which President Lyndon Johnson signed into law on July 4, 1966 and which came into effect the following year. At Federal level in America, there are nine categories of exemptions and three exclusions (confined to law enforcement and the FBI) behind which information may be hidden. In England and Wales the exemptions under which a request may be refused are numbered from Section 21 to Section 44. That in itself is a tribute to the nit-picking ingenuity of the parliamentary draughtsmen, who were able to sub-divide the Americans’ escape clauses into more subtle provisions designed to protect peculiarly British varieties of concealment, such as Section 37, which covers “information relating to the conferring by the Crown of any honour or dignity”. And in case they left any loophole through which a persistent questioner might squeeze, there is Section 36, exempting information the disclosure of which “would be likely to have any of the following effects:

• “ Prejudice collective Cabinet responsibility;
• “Inhibit the free and frank provision of advice and exchange of views for the purposes of deliberation; or
• “ Prejudice the effective conduct of public affairs.”

Yet major revelations about the inner workings of government have still come, for example, through the Hutton Inquiry into the death of Dr David Kelly, which provided almost all of its documents on a website. Had the FOI not existed, they would probably not have been released.

Lord Falconer’s targets are assumed to be the media. Perhaps he has in his sights requests resulting in published reports that feature on lists issued by the Campaign for Freedom of Information and the Information Commissioner, such as disclosures about “dog-muck hotspots” in the circulation area of the Shropshire Star, and the fate of Humphrey, the former Downing Street cat, a matter of concern to The Daily Telegraph. Avoidance of Section 36 has also included examination of how many politicians find it difficult or impossible to walk to work or take public transport (or even pump bicycle pedals like Dave and Boris.) It’s understandable that many cannot, and therefore hardly surprising that FOI revealed Tony Blair’s £500,000 bill (to the taxpayer) for the use of the Queen’s flight and the taxi bills of some members of the Scottish Assembly; only that Lord Falconer apparently believes these sensitive facts are worth a bob or two.

Alternative weapon

Lord Falconer may have calculated correctly when he suggests that publishing an analysis of the costs of requests would “minimise the risk of suffering a defeat” when a measure to change the charging system goes before Parliament. And, if he hurries, Mr Blair will still have enough loyal supporters of his own managerial brand of leadership to outvote members who take the less fashionable view that they should support their constituents in the pursuit of open government. He may also count on backing from the Conservative benches, where there are growing numbers of optimists who can see the possibility of power in the near future and, with it, the opportunity to have secrets of their own sheltered from the public’s prying eyes.

Some MPs might find themselves under pressure from commercial interests in their constituencies: the website of Freedom of Information Ltd, a London-based consultancy offering services to public and private organisations affected by the Act, points out that “the U.S. experience shows that companies with experience of the FOIA tend to take great care with the information they submit to official bodies, ensuring that truly sensitive information is protected from disclosure”.

There is no need for the BJRto make a case for protecting, strengthening and extending the Act. Media managements, conscious of costs above all, would object to a new pricing structure and perhaps cut off funds for requests. Journalists should seek management support to campaign against Lord Falconer’s plan while it is still being drawn up. Under the comparatively simple American rules, Federal agencies such as the FBI and CIA are still able to frustrate many inquiries, and that in a nation with a tradition of open government. Here, any encroachment on the Act must be resisted. In the words of Maurice Frankel, director of the Campaign for Freedom of Information: “We have a functioning Act which has produced a substantial amount of previously undisclosed information. Of course, plenty of requests have been refused. But this is Britain: what did you expect?”