FOI: Government guarantees the free in Freedom of Information

Amid the intense media coverage of the Leveson Report, it’s hardly surprising the latest twist in the Government’s review of the Freedom of Information Act has gone largely un-noticed.

Regular readers of this blog (Hi Mum!) will remember that earlier this year, Parliament’s Justice Committee was asked to look at the impact FOI had had since it came into force in 2005. There was considerable pressure from various lobbies to make it harder to ask for information.

Birmingham City Council was one of a number of local authorities to use budget cuts as an excuse to ask for permission to charge £25 per FOI request to help manage demand (understanding that 20 councillors a year have to resort to FOI to get information from Brum gives you an idea why information requests might be so high). Others suggested that certain interest groups – such as journalists – should have to pay.

And then there were ominous rumblings from Government that FOI was clogging up the Government’s arteries (I would argue the inability of the coalition partners to agree on anything is causing more problems in this regard than FOI) and the peculiar suggestion from Francis Maude that his open data policy replaces the need for FOI, while failing to mention that open data actually hands power back to the data owner, rather than the data requester.

I was one of a number of journalists given the chance to appear before the committee to put the case of journalism – and it felt that the committee listened.

The committee’s report in July dismissed the notion of charging for FOI requests. It encouraged the private sector to be covered by FOI when doing work previously considered a public sector duty and urged local authorities to improve access to information before bleating about FOI costing too much.

However, there were areas for concern – including reducing the number of hours allowed on a request to be reduced from 18 to 16. A small, but important change which could push more FOI requests into the ‘too expensive to complete, guv’ category.

Of course, the committee’s report is only of use if the Government responds well to it, which, it turns out, they have.

Looking at the response report, the following points stand out:

1. Open data is not a replacement for FOI

FOI and open data should live hand in hand, according to the Government’s response, and the latter isn’t a replacement for the former.

The Government believes the freedom of information regime and transparency agenda are complementary.

2. Public bodies told to stop moaning about negative publicity from FOI

The Government has made it quite clear that criticism of public bodies as a result of FOI information being released is a price worth paying. Lets hope the leader of Kirklees Council is listening:

Although FOIA can result in criticism of public authorities, this tends to represent a minority of cases. The Government agrees that, notwithstanding any negative coverage of public authorities generated as a result of FOIA, the increased openness, transparency and accountability of public authorities brought about due to FOIA have lead to significant enhancements of our democracy.

3. FOI requests should remain free – and the Government has little time for the ‘but you’re using it for commercial purposes’ argument:

The Government couldn’t be more clear about it’s thoughts on FOI charging:

The Government agrees with the Committee’s assessment that charging for FOI requests would have an adverse impact on transparency and would undermine the objectives of the Act. For commercial requesters, the Government’s Transparency Agenda has been supportive of the role that public sector information can play in driving economic growth and thus, the Government is not minded to seek to curtail the ability of those seeking information for commercial purposes.

That’s clear, isn’t it? I think so.

4. Internal reviews on whether to release information should take place quickly

One way of kicking FOI requests into the long grass is to hold reviews into what should be released. The Government doesn’t buy that this is a huge problem – but does want guidelines in place to say these reviews should be completed quickly, ideally within 20 days.

5. A change in rules on prosecuting people who destroy or alter data.

Up until now, the the Information Commissioner can only bring action against an authority found to have altered or deleted data requested under FOI if it does so within six months of the offence. The Government proposes removing the six month time limit. Of course, this still hinges on someone outside the public authority finding out – but such information does often find a way out.

4. Public body plans to ‘name and shame’ requesters on disclosure logs have been knocked on the head:

I’m not sure how I feel about this. Why wouldn’t a requester want to be named on a disclosure log? The idea of it leading to people being named and shamed and there being some sort of backlash to stop them is frankly, bonkers:

The Government does not share the view that publishing the names of requesters in disclosure logs would be beneficial in terms of burdens. Such a move would have implications for the data protection of requesters, and there is no evidence that it would have any positive impact either on transparency or on reducing the burdens of FOIA. As such, the Government is not minded to accept that recommendation at this time.

5. Universities to remain under FOI

Given universities have been given the right to charge people up to £9,000 a year – thanks to government legislation – to attend their courses, it struck me as odd that some were arguing they were no longer part of the public sector. The Government disagrees.

6. A warning to contractors

Pushing services out to contractors is more commonplace as a result of spending cuts at councils and other bodies. This poses a threat to FOI. The committee suggested that contractors delivering a public service should be under the jurisdiction of FOI legislation. The Government has stopped short of this, instead urging councils and other bodies to ensure contractors play their part in providing the information people would expect if the service was provided in-house. There is a threat from Government too:

However, the Government recognises that its favoured light-touch approach requires a considerable degree of goodwill and cooperation on the part of public authorities and contractors alike. We strongly urge maximum possible transparency and will, together with the Information Commissioner, monitor the success of this approach. Should the results be inadequate we will consider what other steps, including the possible designation of contractors under section 5, might be necessary to ensure accountability.

But it’s not all good news:

1. The number of hours allocated to a request may well fall from 18 to 16 hours

The Government says this will impact on a tiny number of FOI requests, and may well implement it – as well as other ways of reducing the cost of an individual FOI request. These new ways have yet to be outlined, but it’s a worry, and may well include…

2. Public bodies could be allowed to include time spent ‘considering information’ and ‘redacting’ in the time allowed

This has the potential to be a worry. Allowing public authorities the time it takes them to consider whether information should be released could create an open goal to kick troublesome FOIs into the long grass.

3. Could multiple FOIs from the same person be banned?

Here’s an interesting paragraph from the report:

We will also look at addressing where one person or group of people’s use of FOIA to make unrelated requests to the same public authority is so frequent that it becomes inappropriately or disproportionately burdensome.

That sounds ominous. Public authorities allowed to group FOI requests together and deem them too burdensome to reply to? Troubling.

4. Fake names review on the way

Some people submit FOI requests under false names, and sometimes for good reason. I know reporters who know an FOI request from them gets a different response to one from, say ‘Mr M Mouse.’ The Government is looking at this again:

The Government will consider whether the Code of Practice offers sufficient guidance for public authorities for dealing with anonymous or pseudonymous requesters.

5. Another exemption clause

Universities have scored a small victory, with a qualified (ie challengable on public interest grounds) exemption protecting ongoing research. The wording the Government proposes here will be critical.

6. A charge to take something to the Information Tribunal?

The information tribunal is the last place to go when trying to get information. Until now, there hasn’t been a charge. That could change now. Oddly, that never came up as an issue.

Overall, it feels as though FOI will be in a better place in the long run – although the challenge remains keeping an eye on those who still don’t really like being held to account. Sadly, the Government has left enough wriggle room in place for authorities who want to be tricky to keep playing games. The inclusions of extra activities within the allotted hours – eg considering information – could become a very problematic area, and is one we need to fight against.

But, set against a backdrop of many vested interests wanting to either charge journalists, or reduce access to information, it feels as though we still have an invaluable tool to aid our reporting.

(Footnote: @foimanuk’s response to the report is well worth a read)

4 comments

  1. Interesting post on the issue. I am concerned about the reviews section of the Government’s response. Guidance already exists (from the Information Commissioner) on the length of time for internal reviews. It doesn’t stop some public authorities (including some central Govt departments) from ignoring the guidance on timescales. I’m not sure how guidance can fix the problem of guidance not working. Needs to be statutory (and of course statutory timescales work well in Scotland)

  2. Regarding the possibility of including the time taken to ‘consider’ information and make ‘redactions’ I think this is fair as often the physical act of making the redactions can take several hours if not more.

    In previous roles I have spent 2 or 3 full days redacting files for release but I grant these are the exception. That said this is still obviously a cost to the public authority in responding so it is only reasonable to consider its inclusion.

  3. Thanks for the plug David! I’m not so sure that FOI will be in a better place – I think the best we can say is that it could have been significantly worse, and of course, nobody’s ruling out changes in the future.

    I agree that including consideration and reading time is the most worrying development from requesters’ point of view. I understand Lee’s point – there are situations where requests do impose a significant burden but can’t be refused under the existing fees regulations. But I think there are potentially other ways to deal with that – for example, some recent Information Tribunal decisions have suggested that the section 14 vexatious requests provisions could be brought to bear in these extreme cases. As ever, it will depend on how any amendments to the fees regs will be worded (and given that this kind of change will require consultation, it will take a while for any of this to take effect, if indeed it does). And sometimes, even if a request does impose a major burden, there is a public interest in complying with it.

    Multiple FOIs from the same person – to an extent this is already covered as the fees regulations allow costs of requests on a similar subject made within 60 working days to be aggregated. It may be that the extent of this change would be to remove the word “similar” from the regs. This is also something that would be considered as evidence of vexatious behaviour. So not the biggest change but potentially could have a significant impact.

    That sounds gloomy, but I share your view that overall FOI has come through this process (so far) fairly well. But we need to keep watching what happens I think, as this is a battle that never ends, certainly looking at the experience of other countries who’ve had FOI for much longer than we have.

  4. My views is that many of the sensible recommendations of the Committee have been ignored .e.g. statutory time limits on internal reviews and the public interest test. Also surely it is about time the Government made some S.5 Orders bringing big private companies into FOI especially those who deliver services on behalf of the public sector e.g. Capita.

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