Access to information code is inadequate and toothless

POLICY & RESOURCES' unilateral decision not to improve government transparency is an embarrassment.

Its stance on the access to information code fails to stand up to the most cursory level of scrutiny.

This is a committee that has just decided the States is too busy to be open with the public about its work.

Its position and public utterances are no more than a political illusion too – particularly when it comes to the number of requests and appeals it relies on so heavily for its do-as-little-as-possible approach.

Firstly, you have to remember that everyone was asked to give the code time to bed in when it was first passed – so much so that to this day, four years on, it has never been properly promoted by the States. The only profile it does have has been created by the media's interest in transparency.

No wonder that a tool that started blunt has not caught the public imagination.

Of course, if it did, we would be told it's costing too much to administer, so whichever way there is an argument for inaction.

Too much of my time and my colleagues' time in TV and radio has been wasted fielding phone calls about why requests were languishing on someone's desk in Frossard House, why certain information wasn't even collected, or why a request would be dealt with through a statement or interview.

Like a fool I gave them time to get things right – we shouldn't have been so understanding, we should have been more aggressive, and for that an apology is in order.

Because it is islanders who suffer in the long run because bad decisions remain unchallenged and unresolved.

Sitting on my desk in a brown envelope is the result of the one successful appeal that P&R says was made under the code.

That is its justification for not moving to an independent appeal mechanism through the data protection office – the volume didn't justify the £1,500 a year for the training and promotion costs for change.

Except.

Except that the appeal was not successful.

Except that other appeals never reached the Policy Council.

And except that another one came across P&R's desk which it denied itself. I know this because it was mine against the Policy Council decision to redact information from the PFoS report – presumably we just have a different classification system.

So let's shed some light on that one documented appeal that was so casually glossed over by P&R president Gavin St Pier's statement to his colleagues in the Assembly, but to which so much weight has been attached.

It relates to the Financial Transformation Programme and was made in the wake of the 'fake saving' when money was shifted from one pot to another.

Staff had advised politicians on the Policy Council against including it as a saving – and we learned for the first time that some controversial projects were being shunted upstairs for classification.

It begged the immediate questions of whether there were any other dubious projects and whether politicians had gone against staff advice.

Was the FTP really saving money or were politically-expedient decisions being taken to ensure its success?

Deputy St Pier told the States it took 'some time to process' – he should have been more open and transparent.

The request was made in 2014, the documents were finally released in January 2016.

FTP final savings were announced on 17 April 2015, the programme had closed at the end of 2014.

There was no transparency and, more importantly, timely accountability for decision-making because the information was two years out of date, a dud, the time has passed.

That also does not tell the story of the wasted phone calls and emails chasing the request and subsequent appeal – you are meant to get a formal explanation if it takes more than 20 days, but never do – it does not tell you the story of sitting in Frossard House with senior staff telling you the information would be released, only to find out a couple of days later it would not.

As a journalist I have a bit of time to play this game, but it shatters your belief that a code with internal appeals can ever be successful.

This is the system the public is meant to have faith in.

It is a failure.

You question how many requests and appeals under the code have not made it into P&R's figures – and, just as importantly, how many times committees or departments have relied on the code to keep stuff hidden that we will never know about.

For example, this term Scrutiny used the code as justification for not releasing correspondence with Education when that committee refused to attend a public hearing. That is not in the figures.

Health & Social Services redacted huge chunks of the A&E report last term – no appeal was made because a leaked copy had already been released. So that is not in there.

I have a request for a host of post-implementation reviews from December 2015 which do appear, even though some have been initially refused, and it mostly remains unanswered – how do you appeal silence?

We know that the media are directed elsewhere if they do use the code, so no doubt the public are too.

That is problematic.

You are too often forced to settle for 'that will do' as the phone calls and email 'tennis' to get questions answered push deadlines beyond the limit. Too often deputies or civil servants will not answer your questions – they are filtered, pored over and selectively addressed.

Yesterday's Guernsey Press exclusive on the prison fence is a fine example – that the cultural change promised by the code has not, as claimed by P&R, happened – and why the only way to drive it is through a freedom of information law.

Home Affairs initially failed to answer any questions about the contract – it took the stance to give enough information to try to make the issue go away and no more. It still has not answered all of them.

Then ask yourself why it had not told the public what was happening anyway – why the secrecy?

P&R has announced some minor tweaks which it obviously hopes will be enough to make the information code issue go away as a political topic.

It has taken it four years to listen to calls in this column and elsewhere for requests and responses to be published and for the code to be promoted.

It has announced the chief information officer will review whenever committees use exemptions as a reason not to release information to provide continuity and give further justification.

One of the reasons appeals are not used at the moment is that you never know what you are appealing against – all you can do is argue public interest, but the code does not define what the public interest test is.

This is only a small step, it does not strengthen what we have, it merely gives a slim hope that the mechanisms already there operate more smoothly.

While it may capture decisions not to release following requests and decisions made over the release of commissioned reports, that is only a fraction of the information the States is processing and should be proactively pushing out.

Early on in his statement to the Assembly, Deputy St Pier was effusive – reading through his rose-tinted spectacles, he said: 'We have published reviews and reports and made them available to the public in full unless specifically advised against so doing by the law officers. We provide reasons when we cannot supply information, we don't just say 'no' but explain why. We have unified and improved standards across the organisation.'

Let's take a moment to examine that, because it is one of those statements that sound so good.

It is the first admission that it is not the senior civil servants, or the boards, or even P&R as the route of ultimate appeal, that are making decisions to release or redact, but ultimately it is the law officers.

Nothing or no one can override them – that is not in the code.

And the States does just say no – only weeks ago it published a whole list of commissioned reports where it has done just that – it quotes the number of the exception used and the heading. That is not an explanation – that is just saying no.

It likes to reply on prematurity, that information will soon be published, but never says when it will be or how long that period is.

In my experience it is years – imagine ordering a gift and being told it will be with you soon but having to wait for the next birthday, or the one after that.

The suspicion is that it is done in the hope that you become bored, forget or the heat has been taken out of a situation. It happens.

Unified standards across the organisation?

Well, clearly the message has not arrived at Home Affairs yet, that is just one example. Health & Social Care still argue that releasing numbers means you can identify people. Economic Development do not like to say how often or why the Leopardess goes out, or how much they spend on travel shows. I could go on.

Deputy St Pier has also said it is now standard practice to release information on the cost of independent reports, travel and legal cases on a proactive basis.

So why was the commissioned report list published with not one cost figure attached to it? Some of these reports have been referred to by committees, even last month, without any proactive release of the cost.

It is about time the States stopped listening to its own hype.

Let's have a full Scrutiny review of this, because at the moment it all smacks of asking the wrong questions of the wrong people – no one outside the States has been consulted on how the code is working – people like, I don't know, those trying to actually use it – and therefore inevitably coming up with a one-sided and questionable answer.

In the meantime, it is time for everyone to show the code up for what it is – inadequate and toothless – to try to get the information that is theirs by right through more requests and then more appeals if those fail.

Clearly it is only volume that will get P&R to take note.

The code has had more than enough time.