parliament

A week to save the Freedom of Information Act?

Ok, so maybe the headline is a bit excessive, but this Friday is potentially a very important day in the history of the Freedom of Information Act.

Just over seven years since it became a valuable tool for anyone wishing to hold public authorities to account, a consultation on how effective the current FOI Act is, closes.

In January last year, Lord McNally and the Deputy Prime Minister announced a plan to begin a ‘post-legislative assessment of the Freedom of Information Act’ and the Justice Select Committee issued a call for evidence before Christmas.

The scope of the evidence call includes:

  •  Does the Freedom of Information Act work effectively?
  • What are the strengths and weaknesses of the Freedom of Information Act?
  • Is the Freedom of Information Act operating in the way that it was intended to?

So far, so reasonable. We can all point to ways the Freedom of Information Act could be improved, more of which in a later post.

However, a memorandum produced by the MoJ into the effectiveness of the FOI Act, is set to play a key role in determining the scope of the review which follows.

It’s a weighty document, and contains plenty of research to support the fact that the FOI Act has made a big difference, but it also brings up some issues which need challenging straight away.

According to the Campaign for Freedom of Information, areas the memorandum covers include:

· Increasing request volumes
· The cost to public authorities and impact on resources
· The difficulty in refusing vexatious requests
· The level of protection given to policy advice and cabinet papers
· The impact on public authorities with commercial functions

For those who find the FOI Act an irritant, or who nod to the principle of openness but would like to restrict levels of openness, the points above could be a chink of light to lobby for restrictive alterations to the Act.

Mutterings about how much it costs to deal with FOI requests have always been there. However, the spending cuts have turned a mutter into a rumble, often led by politicians who fail to address how they would be open and accountable without the FOI Act. Some have even shown a blatant disregard for the Act – for example Cheshire West and Chester’s attempt to charge for dealing with FOI requests, seemingly not realising the current law doesn’t allow such a fee.

Perhaps this is best demonstrated by a ramble by a senior councillor at Hampshire County Council last year, who declared it was wrong for the council to be effectively researching front page stories for the local newspaper. This roughly translates as ‘Why are we making it easy for the paper to writing stories we’d rather they didn’t?’ But it also plays to another myth – that FOI is a tool mainly used by journalists. To be honest, it was a myth I believed until recently, until several FOI officers told me that media requests perhaps account for 35% of their requests.The use of FOI goes far beyond the reporter looking for a story – as demonstrated by the use of Whatdotheyknow, and in disclosure logs where public bodies use them.

In the consultation document, there is talk of including reading time in the charging time for dealing with an FOI request – £25 per hour up to £450 in the case of all bodies bar central government – and adding in other ‘chargeable activities’ which would have the impact of increasing the number of requests which were thrown out on cost grounds. This could become a handy middle ground for MPs seeking to retain openness but acknowledging that things are tight in the public sector. The result would be to replace ‘your right to know’ with ‘our right to decide what you can have’ – if, indeed, we aren’t already there anyway.

Am I being over-dramatic? Maybe. After all, the government insists it is committed to FOI. But given it is dragging its heels on a decision on whether to make organisations which take on traditionally public sector duties – part of the Big Society – subject to FOI, this is a case of actions speaking louder than words. The Cabinet Office, the department right at the very heart of government, is one of the most awkward organisations to deal with. The irony of the Cabinet Office – which believed the files relating to Hillsborough should remain secret – being on the Information Commissioner’s naughty step shouldn’t be lost on the justice committee.

What’s more, MPs talk regularly about being transparent on their expenses following the expenses scandal, but it didn’t stop them using several hours of House of Commons time just before Christmas to complain about their new system, with ‘stories about expenses in the media’ one of their main gripes. We should beware the double-speak of politicians when they talk about accountability at all times.

I believe this review is based on the spirit of improving the Freedom of Information Act. It’s important we help ensure it does turn out to be that, and not an opportunity to reduce access to information. The Government memorandum states “limited evidence” about requesters’ views on the Act. If, as a journalist who uses FOI, you find time to do one thing this week, it should be to help make sure that your experience of FOI – the frustrations, the limitations, the successes – are in the inbox of the Justice Committee.

We can’t complain about changes we don’t like if we don’t get involved.

The deadline for submissions is Friday, February 3. They should be sent to: justicecommemo@parliament.uk

As part of that process, the Government has submitted its assessment of how the Act has worked in practice to the Justice Select Committee.

The Committee will then decide whether to carry out further scrutiny of the Act.

The Memorandum examines how the Act was implemented and how it is used, the extent to which information is revealed under the Act and the impacts of the Act on public authorities. It explores the objectives of the Act when it was first passed and evaluates whether those objectives have been met.

One comment

  1. The Act is under threat from many vested interests, resistant to openness and transparency, and more inclined to want to draw a veil over some of their dubious methods.

    Cheshire West and Chester Council, in addition to wanting to levy a charge for FoI requests, also sought and won an opt out of their FoI and Data Protection obligations as part of a compromise agreement in October 2009. This lasted for 20 months and applied to an employee who they appeared to regard as dangerous to their interests, and a bit of a thorn in their side.

    It was eventually overturned by Hugh Tomlinson QC – but the council, in a fit of pique, came straight back with “We plan to do it again in the future, as circumstances dictate” or words to that effect.

    This “ban”, if used again, would not be scrutinised before a committee of councillors, and would fly directly in the face of the fine words laid out in their own public FoI and DP policies. The ICO however, are powerless to prevent public bodies doing this because the “banned” individual (under threat of being pursued through the courts should they breach their agreement) is required to “breach their agreement” to enable ICO action – unlikely.

    Client advice from the top solicitors in the land was NOT to breach the agreement………. so it WORKS, and whatever was controversial enough to be concealed in the first place remains out of sight.

    More details here:

    http://www.easyvirtualassistance.co.uk/page4.html

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