Relight My FOIA

Lobbying is often seen as a dirty word, when actually, done correctly, it is an important part of democracy.

Without effective lobbying, for example to point out the downsides of a rather brave policy, an over enthusiastic government can blunder into unforced errors that cost the public and businesses for little gain.

The job of an investigative journalist is in many ways that of a lobbyist.

Ultimately, the point of news investigations is to shed light on things that are going badly wrong, in the hope that those in power are inspired, compelled or embarrassed into trying to fix them.

The biggest issue with lobbying is not that it occurs.

It is the inequality of arms between those with multi-million-pound public affairs budgets, and those on the other side of a debate with no less important a view, such as environmental activists or community campaigners.

Those who can afford to pay former ministers or special advisors to use their government contacts to get arguments into the right ears are inevitably more likely to make it into the room with the secretary of state to make their case.

It is no surprise that such interests can often have more sway with ministers in suggesting a particular policy that benefits their client’s interest also just happens to be the one that best serves the public.

This is why transparency around lobbying is crucial in a well-functioning democracy.

Even where corporate interests can command greater lobbying resources, the public is unlikely to look kindly on situations where a government appears to just be listening to a narrow interest when that fact is a matter of public record.

Transparency around lobbying is sorely lacking in the UK.

Even basic discloses about ministerial meetings come out many months after the meetings are held.

This often undermines the utility of these disclosures as the decisions the meetings were looking to influence have happened by the time we know the meetings were held at all.

Even where there is disclosure, the public description is often as useless as saying the meeting of the business minister and a lobbyist was “to discuss business”.

Asking for what actually happened at the meeting under FOI is a fruitful, but often laborious process.

This is why it is so concerning that the new Labour government, which in opposition committed to strengthen enforcement of FOI, and expand its application to companies delivering public contracts, appears so keen to prevent disclosure of lobbying records using the excuse of data protection concerns.

I’ve recently been trying to get hold of any lobbying correspondence sent by two Labour MPs, who lost their seats in 2019, but were re-elected in 2024.

They had both been working as lobbyists when out of office.

Anna Turley MP worked as a consultant for the gambling sector, among other roles, and Emma Reynolds, the now pensions minister, worked for finance industry lobbyist TheCityUK.

Former MPs don’t get lobbying jobs for nothing.

You amass influence and contacts when you are an MP, and even just having the mobile phone number of the right mid-level civil servant you dealt with years ago on an unrelated matter can suddenly become very useful for a client.

The public interest in exploring whether these MPs used that influence when out of office would be pretty clear cut, one would think. The government would beg to differ.

It determined that MPs concerned have a “reasonable expectation of privacy” about any emails with government, as it constitutes their “personal information”, that is, information from which they are identifiable.

The excuse is that because they were not MPs at the time they were working as lobbyists, even if they could previously not have expected privacy around any correspondence with government, they can for the period they were out of office.

Hiding behind the data protection act in this matter is likely to fail on appeal, but will delay establishing whether any lobbying correspondence exists.

The law is pretty clear on these kinds of cases.

As transparency regulator the Information Commissioner’s Office’s guidelines state, the disclosure of personal information is not exempt if disclosure would be lawful, fair and transparent.

For disclosure to be lawful, it must be necessary, proportionate, and serve a clear legitimate interest.

The legitimate interest in this case, that of an investigative reporter exercising his public watchdog function trying to check if, and if so, how, ex-MPs were using their influence when out of office on behalf of corporate clients, is pretty obvious.

There is no other way to obtain access to this information, so that makes disclosure necessary.

This information would be about the professional work of these individuals, with no highly sensitive personal information (such as health information) being disclosed.

Given the public interest in lobbying transparency here, this pretty clearly outweighs any interest an MP might have in lobbying in private.

As former MPs, they can be expected to understand that FOI exists, and that there is an expectation of accountability about their conduct once they leave office, it is hard to see how disclosure would not be fair and transparent.

The ICO even issued a recent ruling on a similar case.

A few years ago, the Department for Education decided to argue peer of the realm Lord Wharton of Yarm’s failure to declare he was a major donor to the husband of someone he interviewed for a job as board director at the organisation he chaired was personal information. That got short shrift.

So this approach for the Labour MPs is very unlikely to survive contact with the ICO, or the information tribunal should the ICO fumble the ball.

So why bother refusing the requests at all? It seems to be another example of a common theme with FOI requests.

Officials hoping an inconvenient request goes away by just throwing an exemption at it.

They might hope either the requestor gives up, or if not, the information is less newsworthy when eventually released months or even years later.

A failure to aggressively police this kind of blocking behaviour is one of the biggest weaknesses of the ICO’s enforcement regime.

It undermines the value of the public’s information rights, wastes public funds in appeals and regulatory work, and makes government worse by preventing the release of public interest information in a timely manner that can usefully inform public debate, which is one of the main points of FOI.

I think it also raises potential Article 10 issues, the part of the European Convention on Human Rights, that gives everyone, and importantly journalists, the right to receive and share information.

One thing the ICO could do to help in the short term is issuing some pretty clear guidance on the kinds of people departments really shouldn’t be trying to exempt information about under section 40.

This would make it harder for recalcitrant departments to argue the delays come from innocent mistakes.

What is perhaps most concerning of all is that it is a government elected on promises of fixing standards in public life that is taking such a dismissive approach to FOI, one whose approach to the topic is so far pretty indistinguishable to that of its predecessor.

Picture by Simon Dawson / No 10 Downing Street