Information belongs to everyone, not just States

THE principle is simple. It is also one that few should disagree with. Should government be open and transparent?

As a chorus of yes fills the air, the only point of contention is how you achieve that.

For many jurisdictions in Europe, one of the key tools has been the introduction of freedom of information legislation.

It gives everyone the right, not just journalists, to ask questions of a public body and receive an answer within a short time.

Supporters point to the cultural change this type of pressure inevitably brings, things that outweigh the costs of putting the system in place.

Increased scrutiny means that issues such as expenses and the cost of projects should not get out of hand.

Locally, critics have been keen to highlight the cost of managing freedom of information or the fact that we already have too much legislation that is backlogged at the Privy Council anyway.

They may say also that there is scrutiny in the States, two watchdog committees are responsible for that. But is that type of internal scrutiny enough? Is there enough independence?

A discussion document on freedom of information is currently being drawn up after Chief Minister Lyndon Trott asked for the issue to be put on the Policy Council agenda.

In many ways it is a question of degrees.

Does Guernsey need legislation? Would a code suffice? Or are the moves already being made enough?

Some could argue that there is already open government, it is becoming more open, so why bring in legislation?

To that you have to say the message from the electorate is that there is not open government and then ask if the steps being taken are enough and, perhaps more importantly, do they mean the public gets answers to difficult questions?

Departments and committees here do not publish agendas or minutes, Green Papers are a rarely used tool so that policy is largely formed by the time it is made public, leaving people only three weeks to digest it before it heads to the House.

The exceptions last term included the tax strategy and the energy policy, both of which had plenty of time for people to say what they thought.

Freedom of information could lead to more information coming out earlier so that the basis for policy changes are well understood by, say, pressure groups who could then have an informed input into proceedings.

They would no longer have to shoot from the hip, or, worse still, from in the dark.

Currently only the Public Services Department conducts any of its policy formulation in an open setting with the media invited to cover proceedings, but it is limited to waste.

The House Committee is throwing open its meetings, the Social Security Department and Scrutiny Committee have made soundings about doing the same, or at least finding another way of making sure people know what they are up to.

It is imperative that people can see how policy has developed, that it was not born fully formed but created from an informed and challenged basis.

It is all too easy for deputies to dismiss questions – whether posed directly by the public or on their behalf by the media – either with a big sidestep or with a no comment.

The civil service is traditionally resistant to releasing information until it has to – knowledge really is power.

Freedom of information changes that.

Supporters talk of how it creates a culture whereby information is public unless there is a very good reason why it should not be.

Efforts are made to make sure that it becomes available before requests for it come in.

Such legislation does not come without costs.

Each department would need an officer trained in the intricacies of freedom of information. Everyone working for the States would at least need a knowledge of it.

There needs to be an independent appeals mechanism. In the UK this is through the Information Commissioner's Office with legal weight behind its decision.

Those who have worked with FoI say you should be prepared for vexatious requests and people using the system to get an answer quicker than they would through normal channels.

In the UK, FoI operates with 23 exemptions in place to differing degrees.

So the authority does not have to confirm or deny the existence of the information or provide it if an absolute exemption applies, the request is vexatious or similar to a previous one or if the cost of compliance exceeds an appropriate limit.

Absolute exemptions include national security interests.

If an exemption applies, but is qualified, this means that the public authority must decide whether the public interest in using the exemption outweighs the public interest in releasing the information – but it favours disclosure.

In the States, Deputy Trott spoke about the fact that only five elected members directly supported FoI in their manifestos and stressed that 40 did not mention it.

But this ignores the number who stressed the need for accountability and transparency, or talked about it during the campaign in other forms.

He was answering a question by John Gollop, one of the few who has spoken publicly in support of FoI.

'Being specific to Guernsey, I think it would make it much harder for the States to cover up overspends, make it harder to cover up minutes of the Policy Council, especially on controversial issues. Much easier for campaign groups, it could be the Chamber of Commerce or the Institute of Directors, to get the real facts about decisions and whether political resources are used as effectively as they can be,' said Deputy Gollop.

'I think FoI would benefit more than a handful of radicals.'

The public sector still operates under a culture of containment and secrecy, but this is at a time when new States members are looking to open up meetings, he said.

It would be difficult to make progress on accountability unless there was legislation to back it up, said Deputy Gollop.

'The other paradox is while the public, Policy Council and civil service are very reluctant to let go of how decisions are made, we're also getting the Cicero situation where the island's data protection issue is being called into question. We're not protecting the data we should be, but we're keeping secret things that should be in the public domain.'

Of course, it's not just the public and media which would benefit from more ready disclosure, but also those politicians, particularly on the floor of the House, who in the previous term at least were very vocal about the poor flow of information to them.

There have already been some welcome moves towards opening up and more will no doubt follow under the new regime.

But a strong argument can be made that without FoI, a cultural change towards disclosure will not happen.

The States needs to remember it is the custodian of public information, it does not own it.