Yesterday, I posted my submission to the House of Commons committee which will be reviewing the Freedom of Information Act. I believe we have a lot to fear from this review, with the cloak of cost being used by public authorities which don’t like paying more than lip service to transparency as a reason to restrict access to information.
My post prompted an email from Lee Gardiner, an FOI practitioner, who I’ve debated with on this blog before. He responds to each point I made, and I’ve added my original points into his reply so it makes sense in one post:
Some comments on your blog and submission from a FOI practitioner’s personal perspective.
Firstly I think it overly generalises the view of public authorities as I, along with most of my colleagues, fully support FOI and are as opposed to the suggested changes as the press and public. In fact it is worth noting that the vast majority of support for change has come from central government.
Turning now to your specific points:
- The growing trend of complaining about the cost of FOI . 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 – Cost is a significant issue for PAs at present and I have yet to see any evidence to say better archiving will reduce costs. Efficient and effective archiving systems in themselves can have significant costs and this immediately assumes all FOIs are for information that would be archived which is often not the case.
It is not cost effective for PAs to ‘re-archive’ old information to provide better access as 99% of the old stuff will never be requested. The issue of cost and archiving will only become greater in the next few years as cuts begin to bite.
- Political interference in FOI.vWe 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.
2 – FOI is, in theory at least, already detached from the political process but by definition PAs are political bodies and so dedicated FOI officers or their equivalents are part of that machine. As such unfortunately politics plays a part in FOI and to deny this reality or expect politics to play no part is naïve at best. This reality is here to stay regardless of how FOI operates in the future.
- 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. Press officers should have the same access to all FOI requests, and not treat press ones differently.
3 – Can’t disagree with this although I would say in the PA I work for the Comms team see all FOI requests and only get interested in the press ones if the issue is contentious. In an ideal world they wouldn’t get involved but again the political reality is they want their say and it is again naïve to expect an organisation not to put some spin on its response. There is also a danger that the press will take information out of context, a case in point being the Daily Mail and their recent story on thefts from the police.
- 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.
4 – The issues you raise here should be a matter of best practice rather than law. The PA should apply some common sense if I’m honest as the first thing the ICO will do is ask you to justify how you got to X £/hrs so why not include it in your refusal, I know I do.
- 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.
5 – Disclosure logs are a lot of work for very little reward and are useful only for a refusal under S21 as any authority worth its salt will retain a copy of any FOIs it sends and these repeat requests can be easily responded to. I know of one PA which has a disclosure log which takes approx half a day a month to maintain but has had the grand total of 0 hits in the 4 years it has been there! Is that a useful or cost effective tool?
- 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.
6 – While I accept it is unfair to expect the public not to understand terminology the PA is perfectly entitled to respond to the question asked which may not elicit the response required as it isn’t the PA’s job to second guess a requestor and know what they want if they ask for something else. That said the PA should already be fulfilling its duty to advise and assist and if necessary clarify the request to avoid this. It should also be said that a journalist should probably be more ‘au fait’ with the correct terminology than the public at large.
- The term vexatious
Allowing the definition of vexatious to be open to interpretation empowers authorities who wish to keep information a secret.
7 – I agree a more specific definition of vexatious/vexatiousness for FOI purposes would be useful but I disagree that in its current form it is far too vague and provides a ‘catch-all’. Even in its current form it is difficult to apply S14 effectively without the appropriate evidence to back up its use. PAs as well as requestors need to remain mindful that it is the request, not the requester that is vexatious.
- 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.
8 – This point doesn’t appreciate the structural and operational realities of the public sector and while, using one of your examples, 5 authorities may have systems that allow information X to be easily sourced why should authority 6 be punished for not having a similar system that allows easy access ? What if authority 6 has no operational need to easily access that information? Also what if the first 5 authorities are District councils and no 6 is a Parish Council for example? Given the gulf in resources is it appropriate to expect the Parish Council to operate to the same processes or levels as the District Councils? The simple answer is no as this is unrealistic. The fact is each PA is a different animal with its own quirks and foibles which will influence its ability to respond and requestors need to appreciate this. FOI is a 2 way process and for it to work properly requestors need to have an appreciation of the PAs situation/position when making requests as much as PAs do. Unfortunately experience tells me this often isn’t the case!
- 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.
9 – I’m in total agreement on this one but regardless of resources the ICO needs to take a long hard look at itself and ask why it is so criticised and what could it do better? Advice given is often conflicting and on occasions they are hardly the model; of best practice and consistency they should be given their position as regulator.
- 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.
10 – Again I agree with this and it would make the FOI Officer’s lot a much easier on if this was the case… as for answers if I think of one I will let you know.
Overall FOI works OK as it is but I’m not naïve enough to deny it doesn’t need a few tweaks. If we are going to have a debate about FOI it needs to be balanced and people on all sides need to swallow their pride and see that actually there are two sides to the process and accept that there is no ‘one size fits all’ process and the Act needs some flexibility to allow it to function properly.
* * *
Without sounding too coalition, I agree with a lot of what Lee says. The evidence gathering session provides an opportunity to raise concerns about areas where something isn’t working, as well as areas where it does. Hopefully, the fact that the Newspaper Society has provided the evidence committee with a link to my blog will demonstrate that FOI, generally, works quite well. My concern remains that FOI works quite well at those authorities where senior managers or politicians don’t mind/want it working well. There is still too much room to block the release of information.
Lee makes some good points about the cost of re-archiving old information to make it easier to find, but there’s nothing to stop public sector organisations working harder to make stuff currently being created easier to find in the future. Likewise, it should surely be good practice for similar organisations to archive and hold information in the same way – they are, after all, doing the same job in different areas.
One thing I always advocate whenever I train on FOI to journalists, or present to FOI officers about our experiences is that the two sides should talk more – that can often make a huge difference.