FOIA, equality, justice and the future of democracy

US Department of Justice Scales Of Justice (Photo credit: Wikipedia)

We should not be surprised that powerful people, in particular politicians and political leaders, do not like FOIA.  Aside from the issue of political and public accountability, which raise important democratic principles, the FOIA challenges the political and social hierarchies.  The fundamental principle of an FOIA request is that it creates a right open to all citizens and beyond.  It represents an act of equality. The applicants do not have to justify themselves nor can the organisation refuse the request for who they are.  As such, it represents a key principle of justice: equality.  However, powerful people, and organisations, do not work on the basis of equality.

When people become powerful, they expect and act as if they have a special status.  By that, I do not mean an organisational status, where the leader of the organisation (president, prime minister, or king) is treated differently because they are the leader of an organisation.  In their role, and not who they are, they are granted certain privileges.  What I mean is that the powerful are used to and expect organisations, especially hierarchical organisations, to respond to them accordingly.  For example, when the Prime Minister contacts an organisation, he (or she) does not expect to be kept waiting 20 working days for a response.  More importantly, the organisation receiving the request, which is invariably a strongly hierarchical organisation, works on the same principle. Are they likely to respond less quickly and efficiently to the Prime Minister than say the person who is dependent upon the organisation and complaining about poor service?  Who do you think will have to wait longer for a response?  Will it be the person with the least power and the most vulnerable dependency on the organisation? Will it be the most powerful person with access to other potential levers of power over an organisation? **

Rebalancing the relationship between citizen and state: FOIA and equality.

Here is how FOIA changes the situation, and creates the implicit challenge to political and organisational hierarchies. The Act gives an applicant equal right to have their question answered. Moreover, it sets a deadline for that response and gives the applicant the right of redress should the organisation fail to respond.  Whereas before FOIA came into force, there was an implicit hierarchy, after FOIA passed the hierarchy changed.  Now, there is equality before the law with respect to access to information rights.  In the past, and perhaps continuing to some extent, there was an implicit hierarchy.

 

Pre-FOIA	Post- FOI
Top level MPs, PM, Secretaries of State, and Lords	Top level MP Top level MPs, PM, Secretaries of State, and Lords***
Second level, press, local powerful stakeholders, and local dignitaries (civil or religious)	All others
Third level, key members of the public
Fourth level, complaints (statutory)***,
Fifth level, complaints (non-statutory)
Sixth level general inquiries.

 

FOIA challenges the hierarchies of political access.

Despite what is said, the two tiers still exists. One expects it will always exist. In many ways, it is just human nature displaying itself within an organisational context. However, it will be limited to the extent that FOIA offers equality of access to information. To the extent that the Act allows equality of access, it will cause problems for the powers that be within an organisation within society that benefit from an inequality of access to information.  Applicants cannot be ignored or treated unequally. At a minimum, everyone has the same basic right (the same equality) about the access to information.

Some organisations are still digesting the change. For others who are responsive to their constituencies, the changes are minor. They welcomed them because they saw it as good customer service.  By contrast, organisations that are hierarchical in nature, steeped in politics, and less responsive to their customers or constituents, the changes are more likely to be resisted. The Act undermines the organisation and the hierarchies within it that benefitted from the earlier system of unequal access.

Even the press use FOIA to get equal access

One can see this most directly and immediately in the relationship between the press who use FOIA and the organisation that respond.  For some organisations, all press requests are run through the press office to limit and restrict what they access and know.  For others, the press office only answers specific press questions. The other FOIA press requests are left to the normal FOIA route.  Organisations are grappling with the changed hierarchical situation. In the past, before FOIA, they may have responded to the press differently. They may have prioritising them (albeit with “spin” or a self-justificatory response) because of the power of the press to publicize its requests.  Now, the situation is changed and the previous set of rules no longer applies in the same way.  As a result, the organisations are still trying to adjust their internal systems and rules to the changed external landscape.

The Future of FOIA is also the future of justice in the UK.

As we explore the future of FOIA, in the post-legislative scrutiny era, we need to remember the Act sustains our political equality.  To the extent that the Act is limited, our ability to access justice, which is premised upon equality, is limited.  One has to be aware that using cost to undermine FOIA can also be seen as a proxy for attacking the equality that it provides. In a society without justice, or where justice is weakened, we return to a place described by Thucydides. “The strong do as they will, the weak do, as they must. Only between equals can there be justice.”

The FOIA represents the right to equality, and actualizes it. Whatever restraints that right, restrains equality. Where equality is weakened, justice is weakened.  In that regard, the future of FOIA is as much about the legislation as it is about justice within the UK.  To the extent that people use the right, they are demonstrating their equality.  To the extent that it is resisted, it is showing a resistance to that right and that equality.  The choice of what kind of democracy we have and what kind of society we have is bound up with the future of FOIA.

**This point ignores the issue of politics.  An MP of one party may be ignored, or at least made to wait or even refused, in part because they are from a different party than the organisation receiving the request.  Again, this is not unexpected given human (and political) nature.

***Statutory complaints arose because complaints were not being handled appropriately. A statutory complaints procedure reflects one solution to inherent inequality.  It reminds organisations of their duty to treat everyone equally (even “serial complainers” and “problem customers”) through statutes.

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