A sense of freedom: how FOI has reshaped journalism

Originally published in the Jul/Aug 14 edition of The Journalist

Putting together a twentieth-anniversary nostalgia feature about the takeover of chocolate manufacturers Rowntree, gave Gavin Aitchison an idea.  The confectioner’s demise still has deep resonances in York, where the paper Aitchison news edits, The Press, is based.  The chocolatier once employed upwards of 10,000 staff in the city.

“I thought that local people would be fascinated to know what actually happened in the run up to the takeover, so I put in a Freedom of Information (FOI)  request to the Cabinet Office for copies of all the original correspondence and minutes relating to Nestle’s successful bid”, he remembers.

That was in 2008.  His request was refused.  Then in 2010, the BBC won and Information Tribunal case that secured release of Cabinet minutes relating to 1986’s ‘Westland helicopters crisis’.  The judgement set out explicit criteria in which Cabinet documents should be published, which Aitchison thought were sufficient to reopen the Rowntree case.

He applied again, and was turned down again.  He appealed and eventually, after two tribunal hearings and five years after his original request, the information was granted.  “We finally got the story last December”, he says.  “It might not have rocked governments, but from our readers’ perspective, many of whom still feel very emotional about the case, our effort was easily justified”.

Aitchison has a national reputation for his FOI reporting, but his story could have come from many UK newsrooms.   In 2013 more than 15,000 stories appeared in British newspapers that mentioned Freedom of Information requests – and that figure, based on a search of a newspaper database, almost certainly understates the overall picture significantly.  In that year – and these examples are plucking at random from the same source, the Daily Telegraph returns 799 stories that mentioned FOI, the Daily Mail 994, and the Yorkshire Post 259 – and this is just the print editions.  At the York Press, Aitchison estimates that he carries around 100 FOI based stories each year.

Katherine Gundersen of the Campaign for Freedom of Information, which campaigned for the legislation and continues to provide training in its use says that the scale of change that FOI has made to journalists, since it became effective in 2005, is evident from the number of requests that they put in.  “Around 40,000 requests a year are made, and we think that about a quarter of them are from journalists – it is a process that has become deeply imbedded in our news culture”, she says.

Aitchison agrees.  “All of York’s Press’ specialist reporters are FOI trained and I would guess that each of them is putting in a least one request each week.”  He is sceptical, however, that ‘FOI stories’ are displacing others from their general news mix.  “In many cases the stories we are covering are the same ones that we would run without FOI, but access to original documentation makes the stories themselves much better.   With access to original email correspondence we can see how a decision was reached and who did or did not fall out over a proposal.  Original material gives us more scope for adding authentic texture.”

For those wishing to emulate Aitchison’s success, he recommends a desktop copy of the Freedom of Information Act 2000 – it covers UK Government matters, a separate Act of 2002 covers Scottish government bodies.  Aitchison also suggests that every request you make mentions Section 16 of the Act, which requires public bodies to ‘provide assistance’ to those seeking information.  “Keeping this section in people’s minds means that we sometimes get a phone call the day after we make an application suggesting, say, that we ask about figures for a financial rather than a callander year.   It is much better that waiting for the 20 days, only to be knocked back”, he says.

Happily since FOI came into effect, many organisations have started routinely publishing information that was previously only available via FOI requests.  Aitchison cites York City Council’s street-by-street parking fine statistics as an example.

Not all journalists are unequivocal fans of the FOI legislation, however.  Chris Wheal, veteran freelance, and, over the years, editor of numerous trade magazines, says that his experience FOI is that it is used to thwart enquiries,  more than facilitating them.  “I have usually been able to find a way to persuade civil servants, or whoever to give the documents or data that I need.  Sometimes persuasion alone does the trick, occasionally I need to ask several people the same question to apply a bit of pressure.  Since FOI, however, the stock response from civil servants has been – ‘if you want that you are going to have to put in an FOI request’.”

This, Wheal suggests is a ruse based on an understanding of the kind of deadlines to which journalists work.  The FOI legislation requires that request recipients must respond within 20 days of application (although the release of actual information may take longer, or they might argue that a request is subject to one of the exemptions that allow information holders to turn down an application).  Calculating that journalists’ work to more pressing deadlines, press officers refer enquires to the FOI is a means to keep information back.

Paul Hutcheon, investigations editor at Scotland’s Sunday Herald, has some sympathy with Wheal’s point.  “There is no question for me that press officers use FOI tactically.  They often turn down what they know to be legitimate requests because reference to the Information Commissioner could take twelve to eighteen months, thereby neutering a story”.

While Hutcheon says that more than 90% of his stories are generated by developing contacts and sources, FOI remains, what he calls, a vital golf club.  “FOI is like having a brilliant seven iron – but it is by no means the only club that I use”.

Hutcheon should know – having taken arguably the biggest scalp yet with an FOI-related story.  In 2005 he received a tip off that David McLetchie, then leader of the Conservatives in the Scottish Parliament, was claiming taxi fares for travel between his home and the legal practice where he had a second job.  Hutcheon made a request to see the receipts.  This was turned down on the grounds that it would compromise the politician’s security.  An appeal to the Scottish Information Commissioner, however, went in Hutcheon’s favour.  The resulting scandal forced McLetchie’s resignation.

At that time, Hutcheon was celebrated in FOI circles as the ‘Captain of the trawler men’ – journalists who made numerous, wide-ranging requests, the results of which they devoted hours to combing.  His victory with McLetchie’s receipts led to nearly all Scottish parliamentary expenses being published on the web.  Since then, Hutcheon has become more targeted.

“I don’t want to waste public servant’s time”, he says.  “With rights come responsibilities and I need to feel that there is a good public-interest case for my requests”.  He says that his best questions come when he has been guided by anonymous sources.  “I will often approach a contact in an organisation and get them to help me out with my wording.  They might say, if you ask in this or that way, you will produce better results.”  He keeps a close eye on the Information Commissioner’s judgements too – for fresh ideas for lines of enquiry and to see the precedent’s they create around exemptions.

Despite the enormous use that journalists are making of the Act, there is always a potential threat to its operation.  The Prime Minister who delivered the legislation, Tony Blair, famously rued his decision.  Writing in his autobiography he said: “The truth is that the FOI Act isn’t used, for the most part, by ‘the people’. It’s used by journalists. For political leaders, it’s like saying to someone who is hitting you over the head with a stick, ‘Hey, try this instead’, and handing them a mallet. The information is neither sought because the journalist is curious to know, nor given to bestow knowledge on ‘the people’. It’s used as a weapon.”

It is a paradoxically candid assessment for a man who was famed for his persuasive skills.   Be assured, however, FOI has plenty of opponents in high places who would dearly love to find some means by which to undermine these rights.

“The most obvious way to restrict the Act would be to introduce charges for making requests”, suggests Gundersen.  In the Republic of Ireland, Freedom of Information legislation was enacted in 1997.  In 2003, however, the legislation was amended to introduce changes for information requests.  From that point on, the number of requests fell by 50%, despite the relatively modest Euros 15 charge.

UK governments have continued to make noises about ‘reforming’ the UK Act ever since it started operation.  But, Gundersen says, having handed journalists such an effective tool, ministers are likely to find the opposition to change is vociferous.    “It is no cause for complacency” suggests Gundersen, “but Governments don’t generally enjoy pitting themselves against the entire media.”

Whether Rowntree chocolate workers felt any less bitter about control their destinies transferring from Yorkshire to Switzerland all those years ago is hard to say, of course.  Hopefully the knowledge that they had so doughty a campaigner as Aitchison in their corner was at least a modest sweetener.


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