freedom of information.co.uk

Rob Evans joined The Guardian in 1999 with a brief to use open government laws to obtain information and stories for the paper (examples of this work are on The Guardian website - see 'useful links.') In 1999, he was awarded by the Campaign for Freedom of Information for his extensive use of the UK's 'Open Government' Code. His book 'Gassed: British chemical warfare experiments on humans at Porton Down' was published in 2000. He has also worked for the Financial Times, the Sunday Telegraph and on TV documentaries.

Q: The UK was always criticised for its lack of openness, but you've always produced stories based on officially available information, which suggests that there is more openness than one might think.

A: The thing is, the Code of Practice on Access to Government Information [which was introduced by the Major Government in the early 1990s] is quite a useful tool, for those who make the effort to use it. We've used it quite rigorously, and I've always taken the view that, as journalists, you've always got to use whatever exists within the system. So the Code was not a bad tool for us. And also because a lot of government departments were gearing up for the Freedom of Information Act [FOIA], sometimes we would ask for things and it would be the first time they had had to consider such a request and to release such information. So we were aiming to be in on the cusp of the Act really.

Q: So they would give you things that they anticipated they would have to give you under the FOIA?

A: Yes. A good department would be already be aware and would have got into the swing of things by releasing stuff now, so that when FOIA comes in they're not caught cold. You can always tell the departments that are badly prepared for the Act because they come up with a lot of exemptions, they don't release documents, they bring up very petty objections that you just know are wrong. Eventually they learn that it's time not to do that anymore. One recent example, a department had insisted on giving me edited extracts of documents, so I appealled against this on the grounds that the extracts on their own were incoherent, I mean many had no date on them.

Q: And was your appeal successful?

A: It was actually. They have now come back and inserted all of the explanatory information, but basically they could have saved themselves all of that work by releasing the actual document in the first place, with any bits that they don't want released just blanked out.

Q: Which department was it?

A: The Department of Trade and Industry [DTI]. A very bad department in my view.

Q: And which are the good ones?

A: The Department of Culture is quite good, the Department of Health is not bad, the Ministry of Defence I think are doing their best (although they are a special case) and there are people in there who are trying to change the culture. I mean the MoD has lots more genuinely secret stuff than, say, the Department of Culture. So I would say the MoD is doing a good job under the circumstances and the same for the Foreign Office. As for the bad departments, I think the DTI are particularly bad and the Cabinet Office is atrocious - in my experience, far and away the worst.

Q: Under the FOIA the Cabinet Office can invoke some of the key exemptions can't they. Sections 35 [on the formulation of government policy] and section 36 [relating to the exchange of views and advice within government] in particular.

A: Yes, I mean the thing about the formulation of policy underlines why the departmental culture is so important to all of this. If you have a department that is very recalcitrant and doesn't want to release anything, they can reach for all sorts of exemptions as an excuse not to release information. That particular exemption on the formulation of policy can be interpreted very widely. But if you have a department that actually wants to release stuff, then they will say that exemption is quite meaningless. I mean what is the formulation of government policy? It could mean anything.

Q: Do you think the FOIA will come as a nasty shock to those less willing departments?

A: I think the sad thing is that those departments will make a lot of work for themselves, because if they say no to releasing a bit of information we will appeal and then they have to fight it all the way to the Information Commissioner. That's when they'll get the nasty shock if the Information Commissioner suddenly turns round and says 'release this.'

Q: The appeals system is so much easier than under the existing openness code.

A: Well the key mechanisms are largely the same, but there are two significant differences. Firstly the FOIA is a law, whereas the Code isn't, and, secondly, the Information Commissioner could prove to be a lot more proactive than the Parliamentary Ombudsman. The Commissioner has actually said some very progressive things which indicate that he could at times act as a sort of citizens' champion. He said things whihc have indicated this, whereas the Ombudsman, who has a similar role under the Code, sees herself as being more of an impartial arbitrator.

Q: But the Ombudsman needs to be accessed via an MP and the Information Commissioner doesn't, so for citizens seeking information won't the new system under the FOIA be easier?

A: Yes, if you don't use the Code very much then getting an MP is another hurdle. You see MPs in reality just pass on your complaint to the Ombudsman, but you've got to go through the hassle of approaching the MP with your complaint. I use the Code a lot and my MP Sir Paul Beresford passes on my appeals very quickly, but then again he knows who I am and so it's a well-travelled path. The first time I put in a complaint I was living somewhere else and I asked my MP, who was Oona King, to pass it on to the Ombudsman. In fact she went and lobbied the minister about it, which was great, but it slowed everything down, and all I wanted was for her to give it the Ombudsman. So, for the ordinary citizen to make a complaint there are a lot of hurdles. Thankfully MPs have got nothing to do with the new system under the FOIA.

Q: You're one of very few journalists to use the Code, and you use it to greater effect than any others, but that requires both a knowledge of the system and a great deal of persistence.

A: I think persistence is the main thing actually. Fortunately at The Guardian we have gone about it in quite a dedicated way, because the editor decided in 1999 to run a campaign about the Freedom of Information Bill, which was going through Parliament, as he didn't think that it was strong enough. And out of that arose the idea to have someone who actually makes requests and uses all the access to information regimes in a more rigorous way than we had been before. So I was employed to do a lot of that work, but no other media organisation has done what we've done. It's all about time and effort and reporters, as a whole, don't have time to put in all the work to use the Code, so if they ask for something and are rebuffed they don't have time to go through the hoops of appealing and taking it to the Ombudsman. It's really about committing time and money, which is what The Guardian has done.

Q: What is the most startling information you have been given under the Code?

A: I don't know really, I wouldn't like to say.

Q: Are you being modest?

A: I mean we've used it on a wide range of stories. We have the heavy policy stuff and then we have the lighter stuff. We put all the documents up on the web. One of the heavy stories concerns allegations levelled at British Aerospace. We did one this week about whether the drugs regulator is too close to the pharmaceutical industry. What was interesting about the latter story is that it was based on documents released to us by the drugs regulator, the MHRA, which is in the process of opening up after many decades of being secretive. We caught them at the right time. If we'd made that request a year ago I doubt we'd have got the documents, but now they know they've got to open up and so they are opening up. A story we did last week was about an American health company winning NHS contracts and the documents showed how they'd gone about doing it. So some of the stories are quite heavy.

Q: Going back to British Aerospace, were the key documents obtained under the Open Government Code?

A: We have one set of documents that were, but the another important point is that for reporters the Code is only one tool . You have to knit together the information you get under the Code with other information obtained via the usual reporting techniques. If we go right back to the summer of last year, we did a series about BAE and allegations of bribery in a series of countries, Qatar, South Africa and the Czech Republic and the very first story was based on a document released by the US Government under the American FOI, which showed how the US Government had complained to the British about these allegations. That first story was a good example of how you can make FOI work and that was combined with a lot of reporting by our correspondent in Prague, who knew a lot of people on the ground and knocked on doors and talked to people.

Q: So you used the American FOIA and you've also used the Irish Act. How easy are they to use?

A: I think the US Act is very good actually. It is quite slow, but it's as good as you'll get. I don't use the Irish Act very much these days. I have use both to get around UK secrecy, but now that's changing I don't need to use them as much. However, since America rules the world, a lot more important things happen over there. Use of the Irish Act has gone down because of the introduction of what I consider to be draconian fees. It's a classic case study of how to deter people from using the Act.

Q: In terms of the ease of use, how does the US Act compare to the system we're promised under the FOIA?

A: You can ring up the US officials and ask them for help and some are very helpful and others aren't. The first time I used the American Act I rang up some department and said, 'Can I ask for that?' because I didn't know you could, and this official said, 'Sir, you can ask for whatever you want!' In the UK I know a lot of the officials who deal with FOI and they know who I am, so it's easier just to pick up the phone than if I'm using the American Act.

Q: So you can can pick up the phone to a British official, ask what they have and then send in your request?

A: No, I never do that.

Q: So you just ask them for the information?

A: No, I pick up the phone, if I have to, after I've sent in the request. And sometimes they phone me. If we have a conversation it's normally about one of two things. One is 'When are you going to reply?' and two is 'Why are you taking so long?' I always ask in the politest way possible, because frequently the FOI officials are not the ones to blame for delays and there is often an innocent explanation. Some departments are very good at emailing if there is going to be a delay.

Q: Do you think there will be a wider range of information available under FOIA than under the Code?

A: I do, yes. I'm continually amazed at the type of things people who contact us have requested. We did a story about the DPA and how to use it and a lot of people contacted us to say what they'd got under the Act. A campaigner who was protesting against US military bases in the UK in effect road tested the DPA for us. The Act is supposedly a check on the powers of the sate, so we were asking how well it worked. She sent of the requests and we saw what came back and when we ran the story people emailed us about things they wanted to know.

Q: So you think the FOIA will be used to access a similar range of information?

A: Absolutely! People who were using the DPA had complained against a supermarket and wanted to know what the Supermarket had on them.There was a guy who was a photographer who wanted to know what the Met police had on him.

Q: But do you think there will be a greater range of information available under the FOIA because there will be a greater volume of requests than under the present regime...

A: Yes..

Q: But do you think the legislation allows people access to a greater range of information than the Code?

A: I think so. The whole point of the Act - and why we struggled to get it - is that it gives citizens more power to get the information they want and that's predicated on one thing, which is that it is law. So one would hope that a lot more information is released. What is released will largely depend on what people ask for. Most people think that media will be the main users, but other experience shows they won't be. If you look at the US or Ireland, media requests make up about 10 or 15 per cent of the total. Media requests are often more high profile, but if you go and look at the Ombudsman's annual report you get a real wide range: some to do with driving licenses, VAT, just a whole range of things. Unfortunately the US Act is clogged up a bit by people asking for information about UFOs.

Q: And the same could happen here?

A: Yes.

Q: Are you very concerned by the breadth of the exemptions in the UK Act?

A: Undoubtedly there are more exemptions in the Act than there were, say, in the 1997 white paper produced by [ex-government minister] David Clark. In 1999 the Government definitely had a rethink and put greater curbs on the Act. But it comes back to the same issue again and again, which is the interpretation of the exemptions. Any department which wants to refuse, and will fight to the hilt to prevent the release of something, can reel out all sorts of exemptions and you appeal against them and the Information Commissioner will decide. So if you have a department that wants to release stuff the exemptions just melt away.

If you're sitting there as a bureaucrat in a government department you have to think of two things. Firstly, from the department's point of view if you resist giving out information it creates more work for you in the long term. Running on from that, the department has to think to itself, 'What are our real secrets? What are the things that we need to withhold for genuine reasons?' and that should be the basis for good working practices. It should forget about making unnecessary, unjustified and silly attempts to keep secret the stuff that is relatively trivial.

Secondly, I always think that the Ombudsman and Information Commissioner form common sense judgements. If you ask the ordinary person on the street, they would, of course agree that, in the run up to the Iraq war, plans for attacking Iraq should be secret. But if you show them other bits of information and ask them, 'Should they be secret?' they will take a common sense line.

A good example is the Cabinet Office, which fought tooth and nail in a case we fought (which went up as far as Jonathan Powell, Tony Blair's chief of staff) over the release of information about gifts given to ministers. They fought it all the way, then the Ombudsman said, 'This is not a big deal,' and, in effect, forced them to release the list. It was a story for one day and nothing else happened. And now that list of gifts is released voluntarily every year! This year it was released without any publicity at all. So I would suggest that fighting the release was a really bad thing to have done.

Q: Do you think public authorities will get wise to the fact that, if they release proactively information that doesn't reflect too well on their organisation, they will defuse potential media storms?

A: Take the case I just gave you; the Cabinet Office's refusal and all the subsequent developments led to us writing about five stories, all pointing out the Government's reluctance. If they had just given us the list when we originally asked for it we would have written just one story and moved on. If a department withholds information for no good reason and the case goes as far as the Information Commissioner, who orders its release, that looks far worse than if they had given it up when first asked. They should just release it in one hit, get the embarrassment over with quickly and move on. It's funny how bureaucrats often have a very different view of what is embarrassing than we do. They get very worried about information which measures their department against others, but the public generally aren't interested and we never write stories on that.

Q: Are you at liberty to say what information shall you be seeking under the FOIA from January 1st?

A: Much the same as we've always been after. We'll just carry one.

Q: And you're optimistic that you'll be able to get more information than previously?

A: I don't know. I suppose you have to be optimistic.

Q: Well that's a good place to end.

A: On a note of optimism!

Q: Indeed. Thank you very much.