Plane evasion
26 Feb 2009

chris_ames_140x140jpgIt’s not just Jack Straw who’s playing fast and loose with freedom of information, says Chris Ames. Heathrow campaigners are finding it impossible to get a straight answer from the Department for Transport
Following Jack Straw’s veto of the release of the pre-Iraq war cabinet minutes, the government’s commitment to freedom of information (FOI) has again been called into question. Campaigners against the third Heathrow runway are finding the Department for Transport (DfT) strangely reluctant to publish the latest versions of documents that have already proved painfully embarrassing for ministers. Both Greenpeace and Tory MP Justine Greening have previously used FOI laws to obtain evidence revealing the relationship between ministers and officials at the DfT and BAA over airport expansion. In this light, it is not surprising that the department is trying every trick in the book — and some that aren’t in the book — to block new requests for similar papers.

Greening famously obtained proof that BAA helped the DfT to ‘reverse-engineer’ its forecasts to show that a new runway would meet ministers’ ‘strict environmental tests’. This evidence came from a request for disclosure of communications between the two organisations. But the DfT has refused two almost identical requests from Greening covering later periods. The Information Commissioner, Richard Thomas, is expected to rule shortly on her complaints.

Many of the papers the DfT is withholding cover the period immediately before it launched its consultation document on Heathrow expansion in November 2007. The department has disclosed that they include around 30 exchanges, which ‘without exception… relate to the preparation of the final supporting technical reports (all since published) or to BAA technical input to the main consultation document’. The two reasons it has given for withholding these exchanges have already been rejected by Thomas.

The main reason cited by the DfT, using provisions in the environmental information regulations rather than the very similar FOI Act, are that they are ‘unfinished’. Thomas has already ruled in an earlier case — albeit one that the DfT is appealing — that this provision simply does not apply to early versions of papers that have since been published.

The DfT’s reason for concluding that the balance of public interest requires suppression of the documents is even more clearly against both the spirit of FOI laws and the letter of Thomas’s published guidance. Although the department has admitted that the papers ‘could give insight into how the final documents were developed’, it has claimed that this would lead to a ‘distorted view of how the final documents developed’ and to ‘ill-informed’ speculation.

If not a direct admission that the papers are damaging, this is as close as you will ever see in a refusal notice to such an admission. This type of negative approach to information requests has been specifically ruled out in guidance published by Thomas, who says that the answer to ‘ill-informed’ speculation is more, not less, information.

But the DfT seems unable to conjure up any reason to refuse Greenpeace’s request. The environmental campaign group previously obtained the department’s risk register documents for the airport expansion project, which showed how officials said one thing in private and something very different in public, particularly as ministers prepared to launch the consultation. Last October it put in a new request for later versions of the same documents.

Four months on, the DfT has yet to provide a substantive response, in spite of a statutory requirement to do so within 20 working days.

Ben Stewart, Greenpeace’s head of press, who made the request, says the official handling it initially told him that it would be straightforward, requiring only an assessment of which parts of the documents needed to be ‘redacted’, meaning censored.

But then things became complicated. The case was linked with one from another requester, later said to be Greening, in which an internal review was said to be ongoing. Although there is no provision in the FOI Act for delay on these grounds, delay is what the DfT has done ever since.

Stewart says: ‘I thought it would be straightforward to ask for and get the latest in a series of documents that had already been released. As it is, over the past few months, I have had some of the most bizarre conversations of my life with DfT officials, who seem incapable of abiding by a single aspect of the FOI regulations. First they simply ignored my request, then they promised me the documents by the end of the week, every week.

‘They then dispensed with serial misrepresentation and went instead for the silent treatment, replying to every question with the phrase ‘I will only discuss this with you in writing’, even when I asked them how they were. So I wrote, and they didn’t reply. I phoned to ask if there was an information rights team at the DfT — as there is at most Whitehall departments — but this question was addressed as if it was a matter of national security. They simply couldn’t talk about the existence or otherwise of such a team.’

The DfT has declined to comment on the grounds that the case is still under consideration. But the Information Commissioner’s office has now written to the department twice about the case, including a letter in December from the assistant commissioner, Gerard Tracey.

Last week Stewart received a call from the information rights department at the DfT — which does indeed exist — to apologise for the treatment he has received. But, unsurprisingly for a spin doctor, he is quick to point to an obvious conclusion: ‘I’m wondering, if Hoon’s case for a third runway is so strong, what is he hiding?’

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