Tim Turner on the important distinction between FOI and the Environmental Information Regulations. The latter of which are not up for parliamentary scrutiny
During the tenure of Tony ‘Nincompoop’ Blair (he said it), there were two major attempts to neuter FOI. The first was an attempt, which was kicked around as early as 2006, to place restrictions on the number of requests an applicant could make (you can see more about this here: http://www.cfoi.org.uk/foi161006pr.html). The second, following hard on the heels of the first, was a proposal from the Conservative backbencher David MacLean to exclude Parliament and MPs’ correspondence from FOI altogether. While MacLean’s ideas were explicitly aimed at protecting the elected elite, the wider fees proposals also contained an inherent bias because they would only have affected FOI. While all FOI public authorities are also subject to the Environmental Information Regulations, the effect of the UK’s twin track openness framework is often not considered. If FOI is now altered, it will open up a profound accountability gap.
The definition of environmental information was always wide, and it has yawned even wider since the Information Commissioner gained confidence in using it. At this point, a huge range of information has been ruled into EIR’s ambit. That information about waste, air and water quality, pollution, contamination, agriculture and flooding would be requested under the EIRs can hardly be a surprise. But decisions from the Information Commissioner have included a huge range of other areas – virtually all aspects of planning and building from approval through construction and renovation to demolition, parking and traffic regulation, the use, designation and sale of land, road building and maintenance, plus a raft of other issues. Because they come from an international convention via an EU directive, the EIRs will be unaffected by any amendment to FOI. Indeed, their European origin would make it very difficult for them to be changed substantially, but no such proposal is even close to being on the table.
The detail contained in the Regulations’ definition of information is lifted almost word-for-word from the Aarhus convention signed by the UK government in 1998, and the Aarhus Implementation Guide informed both DEFRA’s guidance on the EIRs and the Commissioner subsequent decision-making. I believe that the ICO’s broad approach to interpreting the definition is correct, but in the light of the broadsides against FOI, it will have an unintended consequence.
All public bodies have buildings, use energy and pump out waste to a greater or lesser extent. So all public bodies will receive requests for environmental information, even if many of them don’t realise it. However, many organisations and some sectors are focussed far more on the regulation, management and protection of places and things than others. The fact that the EIRs do not place a formula-driven cost limit on requests, do not exempt any absolute class of information and allow for verbal requests already means that public authorities with significant environmental responsibilities have to be more open than those that don’t. Anything that slows FOI down increases this gulf. If FOI applicants have to pay a fee, or see the finding / collation time reduced, this will not affect the EIRs.
So why should you care about this? An attack on FOI risks turning the idiosyncrasies of EIR into an accountability gulf. The average district or parish council is almost exclusively concerned with – in the EIR sense – environmental matters, whether it’s planning, licensing, or waste and recycling. A county or unitary council, whose functions do include substantial people-focussed services covered by FOI, nevertheless retains massive environmental responsibilities. Hobble FOI, and while these organisations will remain directly accountable for a good proportion of their functions under EIR, a significant gap will open up between them and other parts of the public sector.
The powerful lobbyists for FOI’s neutering – ACPO, the NHS Confederation and, to a lesser extent, Universities UK– can make their case knowing that many of their core functions are unlikely to be touched by the EIRs. Therefore, a part of the public sector that already has a structural element of direct accountability (the election of local councillors) could end up being more accountable than its local peers (police and local NHS bodies). Those who run police forces, NHS bodies and many agencies and quangos are appointed and not elected; a change to FOI will create a further accountability deficit. Equally, a split will develop between those government departments, agencies and quangos who focus on law and order or health, and those who protect, manage or regulate aspects of the environment, based not on policy or any particular commitment to environmental openness, but because FOI is not untouchable and the EIRs are
The citizen who cares about the rationing of NHS services or the investigation of crimes in their neighbourhood should not be placed at a disadvantage against a neighbour who is more concerned with fly-tipping. The inconsistency between FOI and the EIRs is already a somewhat unwelcome complication. But tampering with FOI at the behest of interest-groups and lobbyists is undemocratic not just because of the generic arguments in favour of openness and transparency, but because it will create two classes of organisations and two classes of applicant. We’re supposed to be all in this together.