The Freedom of Information Act

The FOIA is not intended to cover information of a personal nature, which is already covered by the Data Protection Act 1988. In fact, anything that is covered by the Data Protection Act is explicitly exempt from the FOIA.

Between November 2002 and June 2004, the various public bodies affected by the FOIA have been obliged to issue their own Publication Schemes, approved by the Information Commissioner, the purpose of which is to enable certain classes of information to be made readily available to the general public, without specific applications having to be made. For example, under the Inland Revenue’s Publication Scheme, the classes of information to be published include Departmental structure, strategy and performance, guidance to staff and customers, and policies on procurement and diversity.

It has been said that the FOIA “reflects a national policy shift in public administration from a culture of confidentiality to one of openness”. Whether this new culture of “openness” is to be more of a reality than an illusion remains to be seen. Official papers released on 4 January 2005 reveal that right up to the 1970’s the Army operated a policy of monitoring the ethnic origin of recruits, apparently with the purpose of limiting the recruitment of some groups, and that this policy was regarded as so sensitive that it was kept hidden from Government Ministers. There were other revelations concerning the detailed considerations within the Civil Service about the relative merits of hard and soft toilet paper, and the costs of feeding the Home Office cat.

The USA has had a FOIA since 1966. The National Security Archive of George Washington University reported that between January 2002 and June 2003 information gained under state and federal FOIAs was mentioned in over 6,000 news stories and had sparked over 1,000 news headlines. Just three examples:-

• On 13 March 2002 The New York Times reported that the Food and Drug Administration had advised pregnant women to avoid eating shark, swordfish, tilefish and mackerel, because of high levels of mercury contamination, but had decided to say nothing about tuna, one of the most significant sources of mercury in the American diet and the best-selling fish in the USA, following three meetings with representatives of the tuna industry.
• The New York Times again, on 26 May 2002, reported that New York state and city FOIAs had permitted access to emergency dispatch logs, transcripts of calls, and audio tapes made by Police and Fire Departments on 11 September 2001, and reporters were able to trace over 140 people who had communicated with individuals on the upper floors of the World Trade Centre towers before they collapsed.
• On 29 April 2003 the Chicago Sun-Times stated that it had used the FOIA to force the Illinois Department of Children and Family Services to acknowledge that 460 children had been “lost” in the foster care system, and it was revealed that Department officials had tried to cover up this problem by altering their records.

Based on this evidence, it seems likely that the new Act will create opportunities for enterprising journalists to make a name for themselves, and that much of the information disclosed will be genuinely in the public interest. However, because of the exemption rules, the new culture of “openness” is unlikely to make any difference to the way in which tax and accountancy professionals work individual cases.

Keith Preece
kpreece@qdosconsulting.com
Jan 05