Revealed – the many problems faced by journalists using the Freedom of Information Act

About a fortnight ago, I blogged about the consultation process then taking place ahead of a Government review into Freedom of Information. I argued that as many journalists as possible should get involved, given the increasing volume of complaints from public bodies about how expensive FOI has become, how they should be able to charge to deal with requests and so on.

Their complaints can be summed up neatly as follows: We don’t like not being in control of the information we release.

Today, a 500-page document outlining the submissions to Parliament has been published on Parliament’s website. Paul McNally, writing on journalism.co.uk, has done a good job of going through some of the key points raised by journalists – and there are many from journalists, including several from the regional press. Press Gazette also has a good round-up.

Skimming through the document, it becomes clear that public authorities, while insisting they agree with the need to be transparent, still want to charge. Birmingham City Council, for example, in its submission, floats the idea of a £25 fixed charge per FOI request which it says will force people putting in FOI requests to moderate the volume of requests.

This is something we need to fight hard against. Why should public bodies, being paid through via our taxes, be allowed to create a process which make people ‘moderate’ their requests? The information they have collected which people seek to access has been paid for by the public in the first place. I remain firmly of the belief that the cost of FOI to an authority has more to do with their often poorly-maintained records, a reluctance by senior officials and politicians to embrace the principles of FOI and, above all, a mindset which is more ‘your right to know what we want you to know’ rather than ‘your right to know.’

Here is my submission to the committee, sent on behalf of Trinity Mirror Regionals:

Post-legislative scrutiny of the Freedom of Information Act 2000 Submission

For regional journalists, the Freedom of Information Act has become an indispensable tool when trying to hold increasingly-secretive public bodies to account. At a time when most councils have adopted opaque ‘cabinet style’ structures, many health bodies have done away with public meetings when gaining ‘Foundation Trust’ status, and police forces are reluctant to release even basic details about their work, FOI has proved invaluable.

However, it is never a journalist’s first tool of choice when seeking to gain information. It is a slow process and, depending on the authority being questioned, can prove to be a frustrating process. Many of our journalists have very good relationships with FOI officers, but their ability to make effective use of FOI is often determined by the attitude towards openness set by senior officers and political figures.

It is not uncommon for a organisation not known for its openness with the media to be a reluctant participant in Freedom of Information. NHS North West is a good example – it has regularly ignored FOI requests, and is the same authority which regularly refuses press requests for data, therefore pushing journalists to use FOI.

Of particular concern within the current legislation is:

  1. The growing trend of complaining about the cost of FOI

No politician or senior officer should be afraid of FOI. They should welcome the public’s use of the system. However, a growing number of politicians, particularly at local council level, seem determined to raise the rising cost of FOI as a reason to curtail it. It is common for councils to push press requests towards FOI officers, thus increasing that cost. We believe that better archiving of information within public bodies, plus a can do attitude from senior officers in some cases, would bring the cost down.

  1. Political interference in FOI

We have been alarmed by a number of cases where councillors or other politicians have become involved in FOI decisions. It is well documented that the leader of Kirklees Council vets many FOI requests before they are published, and has in some cases tweaked the responses. This goes against the very spirit of FOI. A recent Welsh FOI decision was made by a first minister. The information sought – about problems at a Welsh hospital – would, we believe, have had the potential to cause a political issue. There need to be firmer rules detaching FOI from the political process.

  1. Press Office interference in FOI requests

It is not uncommon for our reporters to submit an FOI request and then be asked about it by the press officer. Coventry City Council even told a reporter its press office had sign off on journalists’ FOI request responses. This goes against the spirit of ‘applicant blind’ and could encourage a culture where reporters have to use fake names to get information. Press officers should have the same access to all FOI requests, and not treat press ones differently.

  1. The use of cost limits

The use of cost limits causes us great concern. It is rare that an FOI officer will tell a applicant what information they could have within a cost limit. Likewise, a breakdown of how the cost limit breach was worked out should be mandatory. We are alarmed by suggestions that additional actions could be factored into the costing of an FOI request -this would reward those authorities which make information hard to find.

  1. The use of disclosure logs

Disclosure logs have always been seen as ideal by the ICO, yet are very rare. If councils and public bodies wish to reduce requests, then operating effective disclosure logs would be a very effective start.

  1. Active misunderstanding of questions

We have seen FOI requests where active misunderstanding of questions is clearly taking place. One example involves a reporter asking about bed blocking and being told the hospital trust in question did not suffer bed blocking. When asked under FOI about ‘delayed discharges’ a full breakdown followed. It is unfair to expect members of the public to be experts in terminology when submitting FOI requests.

  1. The term vexatious

The definition of vexatious is far too vague and provides a catch-all for bodies which wish not to release information. While we understand the need to provide a mechanism to deal with those who harass public servants, we believe it must be more tightly defined. Nottingham City Council warned one blogger that if he put in frequent FOI requests he would be considered vexatious. Nottingham City Council is also the authority which resisted publishing spending data. Allowing the definition of vexatious to be open to interpretation empowers authorities who wish to keep information a secret.

  1. Rewarding authorities which make information hard to find

We frequently hear of cases where reporters submit FOI requests to six similar bodies (e.g. a PCT) and get information back from five but be told by the sixth it is too hard to find. As it stands, FOI legislation rewards the obstructive. We would like to see a test applied which tells the sixth authority that if five others can find it, then so should they.

  1. An empowered ICO with the resources to make things happen

The ICO works very hard to resolve problems, but is not resourced to meet demand. It needs to have resource to respond to complaints quickly and be able to resolve them quickly. The current situation allow authorities keen not to release information to kick the problem into the long grass.

  1. A statutory requirement on public bodies to promote FOI and openness throughout their authorities

While FOI is enshrined in law, it is still seen as ‘not part of the day job’ by many, and in some councils, FOI officers tells us of a constant battle with senior management. While resources remain under pressure in the public sector, there can be little hope of faith in the public sector if it is not seen to be actively transparent. Making it a legal duty of senior officials and politicians to support the principles of FOI, and be held accountable for blockages in the process, is the only way to ensure the right to know is not at the whim of the requesting body.

As I said, we have had many positive experiences of using FOI. We dispute the claims by some that FOI is a tool for lazy journalists – it isn’t, it’s a complicated tool to use. We would also dispute the claim by some that FOI is used mainly by journalists – the FOI officers we speak with suggest 35% of requests come from journalists and they tend to fairly easy to solve, so long as there isn’t interference.

Journalists working within our organisation are encouraged to use FOI, but to exhaust other avenues first – such as seeking openly-available data, using the press office, or accessing public documents. However, the scope of these remains limited and our journalists often have little choice but to use FOI to get access to information which is in the public interest.

However, it is very important that FOI is strengthened, and made easier to use, even if those in power don’t always find it an ideal tool at the public’s disposal.

David Higgerson

Digital Publishing Director

Trinity Mirror Regionals

February 3, 2012

2 comments

  1. Utterly opposed to charging for requests as the norm, although quite happy with the current fees regulations.

    “Better” archiving? Cannot disagree with that. Would point out though that (locally at least) we pay our taxes so that bins are collected, children are educated and similar. To do that information is recorded to evidence this and report back/justify to whichever central or local regulator the authority is responsible to.

    This means that what is actually held may not be tailormade to respond to requests for information-hence some collation is required (and costs to do this may be estimated to be above the £450+ disbursements). Yes-there should be advice and assistance and that may not always happen, but there has to be some cost limit applied.

    Vexatious-needs to be more tightly defined? I would say-try reading the ICO guidance and applying it, its pretty pragmatic and commonsense in approach in reality.

    Tightly-defining things tends to restrict things and surely militates against each case being taken on its merits?

    As for politicians and the dreaded press office? In the case of the former, I often suspect that FOI cuts them out of the loop (constituents can pursue their own hobbyhorses directly, without reference to them).

    As to press officers and others “tweaking”responses-let’s face it -they work for “political” organisations so by definition some type of signoff process is inevitable (and not actually prohibited-look at the FOI Section 45 code).

    Just ask your CEO how they would like to find a contentious issue plastered all across the local rag, before they were even aware of it? Or does that not apply where the public sector is involved?

    Overall though, I am worried that the current climate may see unwelcome restrictions placed on the right of access-and the majority of journalists I have encountered are not by any stretch of the imagination “lazy”,, so you certainly have my (qualified) support

    Cheers

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