24 November 2020
24 November 2020
The European Centre for Press and Media Freedom (ECPMF), as part of the Media Freedom Rapid Response (MFRR), calls for a robust and independent investigation into the potentially unlawful manipulation of Freedom of Information requests by the UK Government, through the secretive ‘Clearing House’ unit.
On 23 November 2020, openDemocracy released a report regarding a UK government unit called the ‘Clearing House’, based out of the Cabinet Office. According to the report, Freedom of Information (FOI) requests sent to Whitehall departments that are deemed sensitive, or too expensive to answer are forwarded to the unit for further vetting. As noted in the report, Act of Darkness authored by Lucas Amin, ‘the FOI act does not stipulate the need for a Clearing House and the unit has no public policy mandate.’ Amin also reports that ‘The Clearing House…advises referring departments on how to respond and, in some cases, it signs off on drafts of responses before they are sent.’ This centralisation of the responsibility to respond to FOI requests gives ample cover for political decisions to inform the government’s response. Something that goes against the spirit, and likely also the letter, of the 2000 Freedom of Information act.
Responding to FOI requests is an obligation on public authorities that is unaffected by the identity or motivations of the individual making the request. However, ‘journalists from openDemocracy, The Guardian, The Times, the BBC, and many more, as well as researchers from Privacy International and Big Brother Watch’ have been included on lists compiled by the Clearing House. The targeting of specific journalists or outlets by the UK Government has become too common. OpenDemocracy was prevented from participating in Government COVID-19 briefings due to their status as a so-called ‘campaigning’ outlet. The same wording has also been used to discredit coverage from The Guardian and The Mirror in relation to Dominic Cummings’ egregious violations of the pandemic lockdown rules. Further to this, the Ministry of Defence excluded Declassified UK from comment in apparent retaliation for their critical reporting.
Emails between Government departments, including the Attorney General’s Office, the Foreign and Commonwealth Office (now the Foreign, Commonwealth and Development Office) and The Ministry of Housing, Communities and Local Government regarding FOI requests from openDemocracy journalist Jenna Corderoy illustrates how the journalist was singled out in an opaque, tiered implementation of statutory transparency obligations. In heavily redacted emails made public by Corderoy following a Subject Access Request, government officials stated: ‘I wanted to ensure [REDACTED] were content before sending them since Corderoy is from OpenDemocracy…Just flagging that Jenna Corderoy is a journalist’. This singling out of journalists leaves the process open to manipulation.
Across Europe, freedom of Information legislation is an invaluable tool for holding governments to account. However, across the continent, oftentimes using the COVID-19 pandemic as cover, many governments are undermining the process. This is carried out through inadequate protections against overt political interference, the introduction of extended time frames for providing responses to requests, flawed mechanisms for appeal, unjustified fees and costs, as well as the application of opaque exemptions and restrictions on both public bodies covered and the type of information available. Countries such as Scotland, Romania and Hungary have extended the deadlines for public authorities to respond to FOI requests. Serbia went even further, stating that FOI responses would be postponed until the state of emergency was lifted. However this is not limited to the pandemic alone, as states have long sought to identify ways to avoid scrutiny or potential reputational damage related to reporting. Overall, it appears that the pandemic has been used to provide cover for an erosion of the right to access information in a manner that may outlast the current instability.
The singling out of journalists goes against the spirit, and likely also the letter, of the UK FOI act and undermines the ability of journalists to access the information they need for their reporting and by extension the information available to the public. In addition, as quoted by oD, Jon Baines the chair of the National Association of Data Protection Officers, he was “far from assured that the operation of the Clearing House complies with data protection law.” It is vital that an independent and robust investigation is carried out to ensure that all FOI requests are treated equally and without political interference or the appearance thereof. Democratic decision-making is only as strong as the information on which it is based.
This statement is part of the Media Freedom Rapid Response (MFRR), a Europe-wide mechanism, which tracks, monitors and responds to violations of press and media freedom in EU Member States and Candidate Countries. This project provides legal and practical support, public advocacy and information to protect journalists and media workers. The MFRR is organised by an consortium led by the European Centre for Press and Media Freedom (ECPMF) with ARTICLE 19, the European Federation of Journalists (EFJ), Free Press Unlimited (FPU), the Institute for Applied Informatics at the University of Leipzig (InfAI), International Press Institute (IPI) and CCI/Osservatorio Balcani e Caucaso Transeuropa (OBCT). The project is co-funded by the European Commission. www.mfrr.eu
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