AAL Insight: Freedom of Information changes provoke outrage

Feb 10, 2018

Written By Jack J Collins, Editor of AllAboutLaw

In the latest instalment of the battle for freedom of information and press freedoms, campaigners have begun warning that whistleblowers and journalists are under threat of being imprisoned for the revealing of sensitive documents, even if they’re in the public interest.

The Law Commission have proposed a new espionage act to be put through government, which will allow more punishments to be handed out – because the threshold for prosecutions will have been lowered. However, freedom of speech organisations have been unequivocally condemnatory of the proposals.

In particular, the Campaign for the Freedom of Information group and the rights organisation Article 19 have stated that they are fearful that the new act will weaken the test that is used to prove if whistleblowing is an offence, and thus will raise the number of convictions.

They have also expressed their concern with the idea that passing on some information which is discoverable with Freedom of Information requests will become a criminal offence, which would decrease the value of FoI greatly, as people would be fearful to use such a system in case they were prosecuted.

The current system works with the 1989 Official Secrets Act, where offences are discriminated based on whether they are ‘likely to damage’ defence systems, international relations, or the ability to enforce the law.

There is also a subcategory of information which is based around the security services, and if this is deemed likely to damage their work in the international or national security systems.

However, the Law Commission is now stating that they think that the ‘likely’ quantifier is helping people get away with certain acts and revelations which they feel could be damaging to the realm.

It proposes a change to the wording of the arrangement, stating that anything that is ‘capable’ of causing harm to the United Kingdom should be an offence punishable by law.

However, the Freedom of Information Act is set up differently. The request service only omits those things which are classified as ‘likely’ to damage defence systems, international relations and law enforcement, meaning that if the changes were to come into place, any request which rooted up something unlikely to cause harm, but ‘capable’ of it, would now be a potentially criminal offence.

This has caused consternation, not just in protest groups but also in the ranks of the Liberal Democrats, who feel that the changes proposed are the government attempting to become more opaque to the general public.

Liberal Democrat spokesperson for Foreign Affairs, Tom Brake, said: “These draconian proposals beg the question of what the government has to hide. It is a hallmark of our democracy that government should be accountable and transparent.

“We would expand the Freedom of Information act to stop ministers and departments from being able to block the publication of information they see as politically inconvenient,” he continued in his statement.

The Liberal Democrat manifesto contains a conclusive end to the ministerial veto on information that can be released through Freedom of Information requests. They have also pledged that under a Liberal Democrat administration, the number of requests that are blocked by governmental departments will be vastly reduced.

Maurice Frankel, the director of the Campaign for Freedom of Information, told the Guardian that “these proposals are not only oppressive but unworkable. It is beyond common sense to make it an official secrets offence to leak information which anyone could obtain under FoI.

“The proposals would deter officials from discussing information that has lawfully been made public. It will set the FoI Act and the Official Secrets Act on a collision course. It is not the Law Commission’s job to make an ass of the law but that’s what its proposals would do.”

Thomas Hughes, the executive director of Article 19, added: “The Law Commission’s proposals would move the clock backwards, undoing improvements in the UK’s 1989 Official Secrets Acts, and setting a dangerous example of eroding freedom of expression protections, which may be copied by oppressive regimes globally.”

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