Using the FOI act is not a quick fix as James Stewart discovered during an investigation into allegations of a massive rip-off by companies working on government foot and mouth contracts.
Just weeks after the Freedom of Information Act came into force (on 1 January 2005), I made an application which led, more than three years later, to the Information Tribunal, a court of law in London, where Government barristers continued the resistance which I had met from the start. They won.
Like most FoI cases, this was a complicated business. Back in 2001, ITV’s Wales This Week programme broadcast an investigation into allegations of a massive rip-off by companies working on Government contracts in the Foot and Mouth crisis. Millions of pounds were involved.
When the FoI Act came into force, it looked as though we might have a chance of finding out what the Government had – or had not – done as a result of our investigations. Had they got the tax-payers’ money back from the rip-off merchants?
There isn’t space here to go into the details of the case, but I learned several important lessons in the process, which other journalists may find useful.
The first thing my experience makes crystal clear is that using the FoI Act is a legal process – from start to finish. That’s how the organisations you’re up against see it and that’s how they will play it. You have to be prepared for that.
Next, you need to be specific about what you want – and that is information. Don’t get fixated on particular documents. In my case the Government finally identified documents which I’d have liked to have seen, but found reasons why I could not see them. If they had extracted the information I wanted, that would have suited me.
Another thing to realise is that using the FoI Act is not a quick fix. At every stage, the authorities took the maximum time allowed to respond (40 working days) and the Information Commissioner – when I appealed to him – took more than a year.
The Government successfully laid a trap for me by pointing out specific and potentially useful documents – then saying I could not have them. In my appeal to the Information Commissioner, I made the mistake of focussing on these particular documents and arguing for their release. I should simply have called ‘Foul’ and asked the Commissioner to review the whole process to see whether the Government had done enough to let me have the relevant information. In fact – like the Government – the Commissioner has a legal duty to review the whole case and ensure fair play, but in my case that was not what happened and I am at least partly to blame. He backed the Government.
That’s why we ended up in the court of law which is the Information Tribunal – in an action defended both by the Government and the Information Commissioner. I did not have legal representation and we tripped up again. We were still arguing about access to specific documents. We should have asked the tribunal to look at the whole case and rule on whether the Government and the Commissioner had done enough to assist us in getting access to official information.
We won on a minor technicality, only to lose on another point of law. In the process, quite a bit of useful information came out in negotiation, but we never got at the real information we wanted.
If I had to do it again, I’d be much better armed and more likely to win.
James Stewart is a senior lecturer in radio journalism at the University of Glamorgan
Maurice Frankel from the Campaign for Freedom of Information ran a workshop for NUJ Training Wales: Using the FOI Act: Practical Training for Journalists on 11th April 2013