BA (Hons) Broadcast Journalism The Secret State & Access to Information The Centre for Broadcasting and Journalism

Access to Information The UK has a poor record of delivering up information of interest to the public or individuals Until 1989 unauthorised disclosure of government information however trivial was an offence under s. 2 Official Secrets Act 1911

The Freedom of Information Act 2000 The UK was very much a latecomer to the concept of openness United States FOI 1967 Canada 1982 Commentators argued for may years that lack of transparency undermined democracy

The Freedom of Information Act 2000 Scott Report published Feb 1996 Matrix Churchill Affair (Iraqi Supergun) Report talks of lack of openness in government leading to public and parliament being misled

The Culture of Secrecy Secret State - essentially a cultural phenomenon “ No other western democracy is so obsessed with keeping from the public information about its public servants or so relentless in plumbing new legal depths to staunch leaks from its bureaucracy ” Geoffrey Robertson – The Individual and the Law (1999)

National Security and The Press The media for many years supported the culture of secrecy Defence, Press and Broadcasting Advisory Committee (D-Notice Committee) Established in 1912 Existence kept secret for 40 years

D-Notice Committee Consensus between government and press on publication of information In practice committee issued D-Notices advising the media of information to be kept secret on grounds of national security Committee founded on ‘ honourable relations and trust ’ between government and journalists (actually proprietors)

‘ Chaps Together ’ D-Notice Committee… [w]ithin this structure editors and politicians know each other and frequently meet informally Same background and outlook produces a consensual, implicit understanding and permits substantial voluntary agreement Lustgarten and Leigh (1994)

‘ Chaps Together ’ Decide what is and what is not fit to become public knowledge Both parties benefited from this cosy arrangement System certainly worked.. No details of development of nuclear weapons ever leaked out

Media ’ s Acquiescence The D- Notice system prevailed for a good many years Until 1977 existence of GCHQ and SIGINT kept secret from British public Soviet Intelligence however was well aware of the location and function of both establishments

Media Acquiescence Spycatcher debacle D-Notice kept MI5 legal advisor ‘ secret ’ in Britain long after the identity was known in Australia 1970 ’ s sees a challenge to the ‘ cosy arrangement ’ of the D-Notice

Establishment Resistance Between 1979 and 1997 the Conservative government strongly resisted any attempts to bring in a Freedom of Information Act ‘ New ’ Labour manifesto pledge incorporated FOI

Moving Towards Transparency In the period between 1989 and 1997 under the government of John Major there was gradual move towards ‘ open government ’ Data Protection Act 1984 gave individuals access to information held on computer A very limited right of access to local government information was created

Local Government (Access to Information) Act 1985 This legislation further enhanced the data Protection Act to allow limited access to personal information held on Local Authority files Very limited in scope

Citizens Charters Review of culture of secrecy promised after the 1992 election Citizens Charters introduced over a range of issues concerning public services Official Secrets Act 1989 redefines secret information to specific pieces of information or documents rather than classes of information

Code of Practice (Cm 2290) The White Paper (CM 2290)(1993) introduced facilities for non-exempted government departments to publish ‘ facts and analysis ’ And reasons for administrative decisions Code enforced only by persuasive force of ombudsman (no real enforcement powers)

Ombudsman's Role The Ombudsman has no actual enforcement powers The ombudsman is not accessible directly by members of the public who must refer to him or her via their member of parliament Government departments could and often did ignore the ‘ persuasion ’

Freedom of Information Act 2000 The ‘ grace and favour ’ system introduced by the Code was replaced by statutory provision under the above Act ‘ The principle that communication was the privilege of the state rather than the citizen was at last…reversed ’ Vincent, The Culture of Secrecy, Britain , OUP 1998

The Right to Know The right to know is a fundamental of democracy Closely linked with the principles of free speech Article 10 ECHR ‘ Freedom to receive and to impart information ’

The Right to Know Article 10 does not however extend to a right to demand access to information Imposes no actual duty to give information Leander v Sweden (1987) Guerra v Italy (1998) EHRR 357

Before the FOI 2000 Britain has always been a secret state “ No other western democracy is so obsessed with keeping from the public information about its public servants or so relentless in plumbing new legal depths to staunch leaks from its bureaucracy ” Geoffrey Robertson – The Individual and the Law (1999

Before the FOI 2000 Until 1989 disclosure of official information was a criminal under s.2 Official Secrets Act 1911 Official Secrets was a term extended to all government activity All civil servants ‘ signed ’ the Acts Disclosure was tantamount to ‘ treason ’

Public Records Act 1958 Gave access to information contained in government archives Only after thirty years had passed Or in some cases regarded as more sensitive after fifty or even one hundred years Some of the records of World War One are still not available ( )

Public Records Act 1958 Geoffrey Robertson QC argues that the thirty year rule is deigned to prevent embarrassment of officials Records of flogging of vagrants (1919) And the detention in mental homes of unmarried mothers for moral imbecility (1909)

Data Protection Act 1984 Allowed access to information contained on computerised files But only personal information Can be used to obtain records kept about an individual

Local Government Act 1985 Introduced limited access to documents held by Local Authorities Minutes, Reports, Bills, Contracts etc. Council tax payers and those in the electoral district allowed to view such documents and to take copies Significant material still withheld

The Freedom of Information Act 2000 The principles of FoI legislation Statutory right to examine information The implementation of an independent body to decide on rights of access The concept that open government is a good thing That governement should justify any refusals to disclose

The Scope of the Act The Act covers public bodies Unlike the Human Rights Act definition HRA uses broad definition FoI classification Listed in Schedule 1 of the Act The security services while a public body by definition are omitted from the schedule

Rights under the Act Any person making a request for information to a public authority is entitled (a) to be informed in writing by the public authority whether it holds information of the description specified in the request [the duty to confirm of deny] and (b) if that is the case, to have that information communicated to him

Rights under the Act S1(1) (a) and (b) rights Subject to numerous exemptions Where a public body holds information excluded under the Act it is entitled to deny that it has such information

Exceptions to the Act Certain public bodies are not subject to the provisions of the FoI 2000 Parliament is exempted on the grounds that its business is conducted under public scrutiny and subject to public record The Royal Family?

Exceptions to the Act The security services MI5, MI6 GCHQ and Special Branch Exempted on the grounds that they would not be able to carry out their functions if subject to open scrutiny

Tests for Exemptions For you own notes and for future reference examine examples of information that will not be disclosed and the terms of reference for the exemptions See: Freedom of Information Act 2000