Freedom of information code fails to unlock the full story

LAST week the new freedom of information code had its first serious public test.

Health and Social Services has used it as justification for not publishing some key details from the Lightfoot Review of the Ambulance and Rescue Service.

That is the service that had to be loaned £700,000-worth of public money just to keep it running – on top of the £2m. grant it already gets.

Of course it should be acknowledged that some progress has been made in that the review was published almost in full at all – unlike, for example, the critical review of accident and emergency.

But the information redacted – a breakdown of pay and non-pay costs of the current set up and two alternative models as well as working details of those alternatives – are key to understanding what is happening with public money and what could happen in the future.

So the Guernsey Press used the information code to challenge HSSD's decision, with the whole process throwing up some shortcomings as well as benefits of the code.

Cast your mind back and you will remember there were those who feared an avalanche of information requests coming in and bringing the States to its knees.

The experience has been the opposite but that should not be taken to be an indicator of the appetite or need for the code.

That need is very real. But there is an education drive that is required to make sure people know the code is there and how it can be used.

There is nothing, for example, on the States website or departments' home pages to tell people how the process works.

It has been something of a settling in period so far, breathing space has been given to allow departments to get procedures in place to handle requests, but those who campaigned for FoI should now put the pressure on to make sure it is used.

So what is the experience so far, however limited?

The Policy Council has used the code to justify not releasing the number of States employees who have applied under the voluntary severance scheme, for example.

One of the exceptions to the presumption of releasing is if the information will be published 'soon'.

'Soon' is a beautifully vague term and one that needs some more certainty.

The challenge to HSSD's Lightfoot decision was decided on in the first instance by the chief officer.

He declined to release the information – and in doing so took the full 20 days available to respond.

Given that there were only nuggets of fresh information that timescale was frustrating.

The fear is that the 20-day deadline can be used by departments to take the sting out of certain situations.

The real benefit of the request was to find out exactly what part of the code HSSD was using to justify its stance – in the past it could have just refused to release the information and not say why.

So we now know that it believes the information would prejudice negotiations or the effective conduct of personnel management.

The reasoning being that there needs to be extensive consultation with staff about changes to working practices.

That is not the end of the process, however.

An appeal mechanism is available, although nowhere near as independent as it should be and is in other jurisdictions.

In the first instance an appeal goes to the department's board and then it may be passed to the Policy Council.

The sense that the board has already made up its mind on this does not do much to build any confidence that an appeal to it would be anything but a waste of everyone's time.

The other problem with the

appeal is that there are no timeframes written into the code for answering them.

Already the first 20 days seemed like a long time. What if that is multiplied by two or three times?

Presumably sense would prevail and that would not be the case, but clarity is needed on this part of the code as well.

The challenge to HSSD also touched on how the exception was used in sweeping and vague terms – it was not clear exactly what part was being applied.

At some points it was also not clear what type of information was being redacted making it impossible to know whether it could or should be challenged.

Many of these issues are tidying up exercises in how the States handles its information, but they are important ones.

So what happens now?

You would have thought there would be a mechanism for publishing FoI requests and answers given the nature of the code.

But there is nothing in place at the moment, although something as simple as a page on the States website would help.

Detractors of FoI enjoyed trotting out the argument that there are so many exemptions that nothing much more would get

released than at the moment – indeed, it could lead to less coming out, they say.

But the code does state that exemptions are not all absolute – some can be waived if it is in the public interest.

There is no definition of public interest in the code. The most you will get out of politicians is that not everything that is of interest to the public is in the public interest.

But here again a definition would be useful in focusing thinking when these decisions are made.

In its request to HSSD, the Guernsey Press suggested that in this instance the public interest test was cleared – it can be

defined as anything affecting the rights, health or finances of the public at large.

HSSD acknowledged that a decision on applying the exceptions in the code involved weighing the public interest in the information against the potential implications of publishing it, but decided to stick with its decision to apply the exemption.

It did not say what those potential implications were, or, indeed, what its definition of the public interest was.

So far in this case the code was not the key to unlocking the information and an appeal will follow.

But it is only by testing the system that it can be improved, and along with it drive a true culture of openness and transparency.