Freedom of Information: Open Access, Empty Archives?

Citation

Moss, M. (2009), "Freedom of Information: Open Access, Empty Archives?", Records Management Journal, Vol. 19 No. 3, pp. 245-248. https://doi.org/10.1108/09565690910999229

The effect of Freedom of Information (FoI) on archives and records management is of concern to a range of interest groups; but in the context of this book mostly historians seeking to gain access to records either not yet transferred by departments or withheld under various exemptions. The volume contains 13 essays arranged in three sections – Freedom of Information in Britain; Comparative experience of freedom of Information; and Historians in the closed archive. Apart from Britain, that does not include the separate Scottish legislation, countries covered include The Netherlands, the USA, Sweden, Canada, the Republic of Ireland and Hungary. David Vincent's opening chapter “History must be written imperfectly” reviews the history of public record legislation in the United Kingdom and is intended to set the scene. It concludes somewhat optimistically – “it may well be that the long PRO experience of professionalism offers the greatest prospect of a genuine reform of the relation between the state and its citizens in the management of information” (p. 20). This reviewer has his doubts. The next chapter by Gill Bennet, chief historian at the Foreign and Commonwealth Office when the UK FoI Act was introduced, is an interesting reflection on the efforts that were made by the department to comply with the spirit of the legislation, and to meet the expectations of those who had campaigned long and hard for it. In passing she makes some insightful observations, for example about the way in which working practices have become “less formal” which has combined with electronic record keeping to contribute to less complete records (p. 29). She draws a distinction between the concerns of ministers and senior civil servants to defend “‘policy space’ essential to the operation of effective government” and media complaints about “endemic secrecy” (p. 25).

The editors follow with a discussion of “The FoI Act in practice: the historian's perspective” which supplements Vincent's with evidence of the use of the legislation to obtain information or not as the case may be. As discussed elsewhere this has proved patchy and even where information has been obtained it has often proved to be disappointing. There is a lack of discussion, both here and elsewhere, in the way in which data protection in the European Community works against disclosure, leading to files or extracts with personal information being closed until the subject can without any reasonable doubt have reached the age of 100 in the UK (practice differs between jurisdictions). There is also no compulsion for departments to release information that may be available elsewhere if they judge there is a reason for continued closure. Surprisingly there is no reference to the legal tussle of the Campaign Against the Arms Trade and Corner House to gain access to the files relating to the Saudi arms deals, some of which were inadvertently released by the Department of Trade and Industry under the 30‐year rule and subsequently withdrawn. The assertion (p. 51) that access to information will lead to greater accountability is questionable and discussed later. Confusion about the working of the act is evident in Duncan Tenner and Mair Elia Wilkins' treatment of it in relation to Welsh devolution. Records that concern covert police operations will inevitably include highly sensitive information usually about infiltration and informers that cannot self‐evidently be released until the subjects are 100, if at all when guarantees of anonymity have been given. It seems odd that the authors cannot understand that is what is meant by the Home Office response, particularly when they admit that the groups they discuss did not enjoy the whole‐hearted support of the nationalist community. They do helpfully touch on the vexed question of the implications of FoI for papers deposited in archive offices by private owners that has been worked round by the addition of the words “in confidence” in deposit agreements.

The next section opens with an all too brief chapter by Bob de Groff on his battle to gain access to secret service records in The Netherlands, particularly the allegations that Christian Lindemans may have betrayed operation Market Garden to the Germans (p. 78). It touches on but does not discuss directly the difficult question of security information supplied by other “friendly” powers that requires third party consent before release. The next two chapters by Donald B. Schewe and Deby A. Morrisroe deal with the USA, where there is only embryonic data protection; but as we all know, a growing culture of secrecy since 9/11 and the passing of the Patriot Act. Schewe's contribution is a review that ends depressingly with the comment that “FOIA has few official friends in Washington”, which is balanced by a wishful comment from Jane Kirtley that – “This law creates a legal presumption on openness and accountability” (p. 100). This is immediately contradicted by Morrisroe's discussion of presidential libraries whose legitimacy has been undermined by President GW Bush's executive order of 1 November 2003 that is intended to restrict access. Swedish freedom of information is explored next, making it clear that, although, as we all know, it is the oldest in the world, its operation since 1776 needs to be set in the context of the country's political history, not least its complicit collaboration with Nazi Germany. More disturbing is their compelling evidence that FoI is contributing directly to an “oral decision‐making culture” (p. 119) that is contrasted with the much more familiar paper trail at the EC, which is often criticised, particularly in the UK, for its lack of accountability. The final chapter in this section by Larry Hannat is about Canadian experience that echoes Swedish concerns about the growing absence of “written evidence”, quoting Reg Whitaker of York University's aphorism “ the classic Weberian ideas of covering your butt with a paper trail … has been turned on its head” (p. 132).

The final section opens with an excellent chapter by Euan O'Halpin, reflecting on his experience in the Republic of Ireland and to a lesser extent the UK, who memorably describes the British Parliamentary Ombudsman as “statutorily constipated” (p. 146). He sees FoI as not the handmaid of historians but of “organised interest groups”, “as a way of forcing the state to act as a research assistant” and then jealously guarding what has been uncovered (p. 148). He advocates strongly a permanent online presence for the evidence and proceedings of public enquiries, with which the Republic of Ireland abounds, as providing a much greater body of contemporary evidence than single FoI inquires ever will (p. 150). He makes the telling point that lack of resource for effective information management is not an excuse if ministers can afford to post their “most inane comments” on social networks (p. 149). The next chapter, by Philip Murphy, deals with the frustration and what he considers “censorship” in discovering records relating to the failed Central African Federation that goes over some of the same ground as before, but highlights the exemptions provided for the Royal Family in the UK legislation, inconsistencies between departments and the problems of the “off‐the‐cuff” comments by officials about foreign heads of government and politicians that might cause offence long after the event. Michael Oliver follows with a description of his difficulties in obtaining files relating to British economic policy in the 1960 s and 1970 s, which were shared, unknown to the author but to this reviewer, by Sir Alec Cairncross who was at the heart of policy making at the time. He not only highlights inconsistencies in releasing material between the Treasury and the Bank of England (nothing new); but also with the IMF (International Monetary Fund), which has more liberal access policies (p. 179). The final chapter by Miklos Lojko deals with Hungary and the peculiar distinction made between “involved” inquiries with a direct interest in the subject matter requested and researchers. The “involved” include all those who had personal experience of torture and abuse at the hands of the communist regime.

This undoubtedly is an interesting collection of essays from a variety of perspectives that will help inform the wider debate about the effectiveness and impact of FoI legislation. What it lacks is a reprise that brings the common concerns of all the contributions together in a meaningful sense. There are clearly common issues, what are often perceived to be bureaucratic barriers to access, scarcity of resources and files missing in action. Although Hanna refers to the lack of engagement of Canadian historians in the debate on FoI (p. 133), this generic problem that extends to archive policy more widely could have been explored. There are other lacuna, particularly third party IPR and copy right issues that affect much material held by governments. Wider discussion of data protection that trumps FoI in the European Community and its consequences not just for FoI but archives as a whole would have resolved many of the issues raised about the withholding of personal data even of people who are known to be dead. The volume fails to address squarely the final part of the question in its title “empty archives?” except in the insightful chapter on Sweden, whereas there is plenty of evidence that the collapse of traditional record keeping practices are a widespread problem. Although there is a presumption that FoI is the handmaid of accountability and transparency, much of the evidence in this volume suggests quite the opposite. It is a great shame that Routledge has chosen to price the book so high as to put it out of range of all but the most well endowed libraries, it deserves a wider audience which would have stimulated debate.