Could Wikeley make FOI changes less likely?

The following post by saveFOI co-founder Paul Gibbons, a.k.a “FOIMan”, first appeared on his blog http://www.foiman.com/ and is reproduced here with his permission and our thanks.

Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

• reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
• allowing public authorities to include consideration time in the assessment of this limit;
• allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
• charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

Important FOI briefing session announced

The extraordinary Campaign for Freedom of Information, to whose coattails all FOI supporters hang, have announced a briefing session on 18 February to discuss the continuing threats to the Freedom of Information Act 2000 (FOIA). As they point out, particular areas of concern are

The government is planning to amend the Freedom of Information Act to make it easier for authorities to refuse requests on costs grounds. This could have serious implications for requesters…

The government is also proposing to allow unrelated requests from one person or group of people to the same authority to be refused if their number is overly burdensome…Local newspapers, which cover a range of different issues involving the same authority, could be among the first casualties of this proposal…

Ministers are also considering introducing charges for appealing to the Information Rights Tribunal – a measure likely to discourage many appeals from being made.

saveFOI members will be attending, and we also intend to continue to support the Campaign in its defence of FOIA, for as long as it takes.

The Struggle Continues

Those of us who feel strongly about the value of public sector transparency, and the Freedom of Information Act 2000 (FOIA), might make the mistake of thinking that everyone, incuding our elected representatives, feels the same. However, a Westminster Hall Debate on the 24 January suggests the post-legislative scrutiny of FOIA is not the most pressing of issues in the eyes of MPs: only a handful attended

As the opening speaker, Alan Beith (who also chaired the Justice Committee scrutiny sessions) said, this might have been because another important debate was taking simultaneously taking place in the Commons, on extending the franchise. Nonetheless, as previous experiences have shown, it is important that those of us who care about the subject remain vigilant.

For interesting analyses of the debate I would point you to excellent pieces by Alistair Sloan, and Matt Burgess (Matt did two pieces) on which I gratefully draw. As they show, the key contributor to the debate was by Helen Grant, Parliamentary Under-Secretary of State for Justice, speaking on behalf of the government. As saveFOI and other commentators have expected, and as the Ministry of Justice’s response to the Justice Committee’s report indicated, the government is looking at some potentially illiberal amendments to FOIA.

She spoke of “disproportionate burdens” caused by “industrial users” of the Act

We cannot ignore concerns raised about the burdens it imposes on public authorities, this is especially important in the current challenging and very difficult financial climate and at a time when more Freedom of Information requests than ever before are being received…We will also consider…ways to reduce burdens in a fair and proportionate way, including addressing where one person or a group of peoples use the act to make unrelated requests to the same public authority so frequently that it brings an inappropriate burden.

On one view this is not greatly exceptionable. The issue of vexatious requests, by vexatious requesters, is a problem for defenders of the Act, and the Information Commissioner and Information Tribunal arguably take different approaches to these cases. Forthcoming decisions by the Upper Tribunal may bring some clarity. However, as Matt suggests,  within the category of a “person or a group of peoples [using] the act to make unrelated requests to the same public authority…frequently” could fall journalists, campaigners and local active citizens. Any changes which threaten the ability of these and other groups properly to hold public authorities to account will be vigorously opposed.

Ms Grant also confirmed that the government is looking at reducing the section12 minimum cost limit beyond which requests need not be dealt with, while introducing an effective “thinking time” provision. As Maurice Frankel, of the Campaign for Freedom of Information, told the Telegraph

Any request raising new or challenging issues is bound to require significant thinking time at first and be liable to be refused under these proposals. Authorities should not be protected from having to think about new issues, that’s a recipe for stagnation.

There was also suggestion that the use of the bludgeoning ministerial veto will be reviewed, not to see if it can be used less, but if its use might be extended beyond the “normal” usage relating to cabinet discussions (“there is no limitation in the Freedom of Information Act itself which prevents the veto being used for other information”).

So, despite the supportive words of Alan Beith – long a friend of freedom of information – and some of the few other MPs who turned up, it seems, as Paul Gibbons warned in our last post, that “the Government has decided to take its own course on FOI”.

Full Circle – the Government’s response to the Justice Select Committee

Paul Gibbons comments on the Ministry of Justice’s response to the Post-Legislative Scrutiny report on behalf of the Save FOI Campaign.

An inquiry set up at the Government’s instigation spends months gathering evidence. It publishes a report making measured, proportionate recommendations. And the Government rejects them and decides to do what it originally wanted to do anyway.

Sounds strangely familiar. And this describes exactly what has happened with the post-legislative scrutiny of the Freedom of Information Act.

On Friday, 4 months after the Justice Select Committee published its report, the Ministry of Justice published its response. And it has brought us full-circle back to the position we were in exactly one year ago.

It is to be welcomed, of course, that the Government has rejected charging for FOI requests, as we reported earlier last week. And that no changes will be made to the exemption for policy formulation.

But in almost every other area the Government has decided to take its own course on FOI. And in many cases we remain in the dark as to what it will do.

The Committee rejected the inclusion of reading and consideration time within estimates of the cost of FOI requests. As indeed did the last Government. But not only has the Ministry of Justice vowed to continue looking at this option, it has also said that it will consider other ways to bring more FOI requests outside the acceptable limit, including a possible reduction in the limit. Overall, whilst paying lip service to FOI’s benefits, the Ministry’s response focusses to an alarming degree on the perceived burden of FOI.

In this context, the Government has decided to look at charging for appeals to the Information Tribunal. Something which, to our knowledge, was never raised during this whole process of review. It is possible this will have limited effect on requesters – as they would only be involved directly in appeals against decisions of the Information Commissioner – but as with much else referred to in this response, we will have to wait for the detail to be sure.

It is widely recognised that the lack of statutory restriction on time to consider internal reviews and public interest are deficiencies in the Act. Some authorities have delayed responses for many months. It was not a surprise then that the Committee recommended the establishment of deadlines for these processes. So it is a considerable – and unwelcome – surprise to find that the Government has rejected these recommendations.

Similarly reasonably, the Committee had recommended extending the period within which individuals could be prosecuted for destroying or hiding information requested under FOI. The Government has agreed that change is needed but its proposal that the 6 month window for prosecution should remain but be triggered when the offence is discovered rather than when it occurs would be an improvement – but only a modest one.

The Government is planning extensive revisions to the Section 45 Code of Practice. It wants to provide new instruction there not only on how the provisions for vexatious requests should be used, but also on how section 8, which sets out the definition of a valid request under the Act, should be interpreted. It is hard to avoid the suspicion that any change there is likely to encourage a narrower approach than that currently favoured by the Information Commissioner.

One of our concerns with the Committee’s report was with its suggestion that the ministerial veto should be used in circumstances other than exceptional. The Ministry of Justice has accepted this recommendation with gusto, and indeed appears to be considering widening the scope of circumstances in which the veto might legitimately be used.

Sensible suggestions, such as the recommendation that public authorities should publish statistics on their compliance, have been rejected. In this case it is suggested that this would place additional burdens on authorities for no discernible benefit. How publishing statistics that are already held can be considered an unreasonable burden it is not clear, and the benefits are obvious. The Information Commissioner and others would have been able to see which authorities were struggling with FOI and appropriate action could be taken. At the moment, authorities in many parts of the public sector can very easily hide their poor performance, and the Government appears to be sanctioning this.

Where the Government has decided to take the Committee’s advice, it is not particularly clear why in some instances. Having explained that there are plenty of exemptions that could potentially be used to protect research data from premature disclosure, the Ministry of Justice indicates that it is minded to accept the recommendation to introduce a new exemption, purely because the lack of a specific exemption for research gives “the impression that FOIA does not provide adequate protection”. This seems a particularly odd reason to legislate when almost every other change requiring legislation has been rejected.

There are some positive signs. Whilst agreeing with the Committee that companies providing public services should not be made subject to FOI at present, the Government does reserve the right to do this in the future if there are signs that companies or public authorities are not interpreting FOI as positively as they should. And they are looking at making it easier to add authorities to the Act’s coverage.

But overall, it looks very much as though the Government will do what it wants to do to FOI, whatever the views of the Justice Select Committee. Comparing its response to the Committee to the memorandum that it issued a year ago, it is clear that the Ministry of Justice has not changed its views in respect of most of the matters the Committee was asked to consider. Which begs the question: why did it decide to ask for an inquiry in the first place?

And what is most alarming is the extent to which many changes are still under consideration. A year after this process started, the Ministry of Justice is still examining its options, and we have limited assurances as to the future of the Act in its present form. Rest assured, the Save FOI campaign will be watching the Government to see what happens next. We recommend that anyone with an interest in FOI does so too.

The Justice Committee Report

The Freedom of Information Act has been a significant enhancement of our democracy

These are the stirring introductory words to the report of the House of Commons’ Justice Committee, produced in their key role in the post-legislative scrutiny of the Freedom of the Information Act 2000. saveFOI – a disparate group of practitioners, experts and activists – was set up because of perceived threats to the effectiveness of the Act from this scrutiny process. Along the way there have been some worrying and some more reassuring rumours. We even felt compelled at one point to write to the Committee because of some concerns we had about the process.

Now the report has been published, and we are – broadly – very pleased with the outcome. The Committee have also lambasted Tony Blair for his failure to co-operate with the process – but we’ll leave it saveFOI co-founder Tim Turner to demolish Mr Blair’s stance.

Here are some of the reasons why we’re pleased:

“Chilling effect”

It is very important to note that, despite strong arguments from loud voices, the Committee was not convinced that the “chilling effect” on government and policy development was supported by much more than bold assertions

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act. On the one hand, the Constitution Unit’s research—the most in-depth available—suggests it has only a marginal effect. On the other hand, a range of distinguished participants who are, or who have been recently, at the heart of the policy-making process attest that it is a problem…Given the uncertainty of the evidence we do not recommend any major diminution of the openness created by the Freedom of Information Act, but, given the clear intention of Parliament in passing the legislation that it should allow a “safe space” for policy formation and Cabinet discussion, we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions.(§200-201)

However, the Committee might have – wittingly – given the green light to further use of the illiberal ministerial veto powers under section 53 of the Act

We also recognise that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.(§201)

Prospect of charges

Despite worries that the Committee would bow to pressure to call for FOI requesters to pay a small charge to make a request, there is no such recommendation

fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act. (§85)

“Requestor blindness”

Some witnesses had called for charges for certain classes of requestor (for instance the media, or commercial organisations). This too has been rebuffed

The Act operates on the basis of requester blindness. As a result developing a way to charge requesters who commercially benefit from the information they receive from public authorities is difficult, if not impossible. Any requirement that requestors identify themselves could easily be circumvented by requestors using the name of a friend, family member or other person. Attempts to police such a system, either by public authorities or the Information Commissioner, would be expensive and likely to have a limited effect.(§81)

“Frivolous” requests

There had also been suggestions of a new exemption to cover “frivolous” requests, including from the Information Commissioner. The Committee, while not completely rejecting this idea, was not convinced it was necessary

It is apparent from witnesses that frivolous requests are a very small problem, but can be frustrating. There is a case for adding frivolous requests to the existing category of vexatious requests which can be refused, but such requests can usually be dealt with relatively easily, making it hard to justify a change in the law.(§135)

Fees Limits

The Committee does recommend some changes be considered however. It clearly accorded some weight to arguments that the burden on public authorities in complying with complex and voluminous requests was too great. The report suggests that consideration be given to reducing the amount of time an authority need take in searching for and compiling information

complying with its duties under the Act can be a significant cost to a public body. A standard marginal decrease in the 18 hour limit may be justifiable to alleviate the pressure on hard-pressed authorities, particularly in the context of increasing numbers of requests. We would suggest something in the region of two hours, taking the limit to 16 hours rather than 18, but anticipate the Government would want to carry out further work on how this would affect the number of requests rejected (§61)

However, the Committee was not of the view that reading and consideration time should also be taken into account

Such activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.(§60)

Pre-publication of research exemption?

A possibly important change is proposed at §202-214 – Universities argued strongly in written and oral evidence that there was insufficient protection for pre-publication research under the existing Act (and that a provision in the Freedom of Information (Scotland) Act 2002 should be mirrored in the FOI Act). The Committee took this on board

We recommend section 22 of the Act should be amended to give research carried out in England and Wales the same protection as in Scotland. While the extension of section 22 will not solve all the difficulties experienced by the universities in this area, we believe it is required to ensure parity with other similar jurisdictions, as well as to protect ongoing research, and therefore constitutes a proportionate response to their concerns.

Although there is an argument that sufficient protection exists under the existing statutory scheme, this is not either a particularly unexpected nor unwelcome proposal provided sufficient safeguards are built in to ensure such an exemption is not abused.

Section 77 prosecutions

It is not surprising that the Committee also recommend a change to the provisions of the Act dealing with the criminal offence of altering/erasing/concealing information. Currently this provision effectively requires the Information Commissioner to bring a prosecution within six months of the offence taking place. As often the Commissioner would not find out about an offence until well after this, the chances of bringing a prosecution have been very low – as he himself has pointed out . The report says

The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.(§121)

Statutory time limits for internal review etc

Under the current scheme when an authority wishes – where appropriate – to extend the time to consider the public interest test, or is asked to undertake an internal review of a refusal to disclose, there is no further statutory time limit. This has been described as an anomaly, and the report rightly calls for it to be corrected

We recommend the 20 day extension be put into statute. A further extension should only be permitted when a third party external to the organisation responding to the request has to be consulted…We recommend that a time limit for internal reviews should be put into statute. The time limit should be 20 days, as at present under the Code of Practice, with a permitted extension of an additional 20 days for exceptionally complex or voluminous requests.(§111-112)

FOI and private contractors

The Committee recognised that the “right to access information must not be undermined by the increased use of private providers in delivering public services” but generally felt that current commercial and contractual arrangements should normally suffice to prevent this

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.(§240)

Disclosure logs and names of requestors

A slightly surprising recommendation is that

where the information released from FOI requests is published in a disclosure log, the name of the requestor should be published alongside it.(§82)

As this falls under a heading in the report of “charging media companies”, it appears to be aimed at addressing concerns about use of the Act for commercial or journalistic purposes. However it is phrased in general terms (and is also in the report summary) and authorities would be well-advised not to implement this in advance of any clear statutory or other guidance – it appears to us to run the risk of unfair disclosure of personal data and a potential breach of the Data Protection Act 1998.

Conclusion, and what next?

Mostly good! Some concerns remain, and we’ll continue to read the report and possibly blog in more detail in coming weeks.

It’s clear the Committee have applied themselves admirably to the task (and this was evident from an early stage). What the government, and ultimately Parliament, does next remains to be seen. Possible future battle lines were drawn in an exchange between Jack Straw (yes, yes, we know he’s not in this government, but…) and the Campaign for Freedom of Information’s Maurice Frankel on BBC Radio 4 this morning. Straw’s only real concern appeared to be the lack of recognition of the need for a “safe space” for government and policy-making. Of course, such a safe space already exists (see the discussions on the “chilling effect” and consider the broad exemption and veto powers under sections 35, 36 and 53) but the government may pursue this point.

saveFOI will continue to work to defend the Act, and we recognise that the Justice Committee’s report is only one part (albeit a major one) of the struggle.

Further reading

Many pieces and analyses are already emerging. Here’s a selection

Information Commissioner, Christopher Graham

FOIMan – “Justice for FOI”

Tim Turner – “Revenge of the Nincompoop”

UCL’s Constitution Unit – “No Going Back: Committee Protects FOI”

BBC’s Martin Rosenbaum – “Commons Report praises current FOI system”

and finally

“Campaign welcomes Justice Committee FOI report” from the redoubtable Campaign for Freedom of Information, without whom, as they say, perhaps none of us would be here.

Advance News on FOI’s Future?

The Guardian yesterday appeared to have advance news on the outcome of the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act. It reported

Pressure from former senior Labour figures, including Tony Blair and Jack Straw, as well as Whitehall mandarins, to “turn back the clock” on freedom of information legislation has been decisively rejected by an all-party group of MPs…The report…[will]…reject the idea of charging for FoI requests, arguing that any blanket charges that would start to cover the costs would be prohibitively high.

If the article is correct, this is fantastic news. As saveFOI have argued before, the cost of running a charging scheme would be a huge problem. But above all, any change which would hinder people from exercising their rights under the Act would be worrying and retrogressive.

It also appears that the Committee has not bowed to pressure to change some exemptions into absolute ones (which once engaged cannot be overridden by public interest in disclosure):

[it] is to come down against creating a sweeping exemption from FoI legislation for information used in Whitehall policy formulation and development. The MPs also reject weakening the FoI law on the release of information that would prejudice collective ministerial responsibility, or inhibit the frank exchange of views within the government.

The article goes on to suggest, however, that there may be one signficant change to the cost limit for responding to a request:

The MPs do, however, back a two-hour cut to the 18-hour time limit after which a public body can impose a one-off charge to cover the cost of the extra work of dealing with a request.

Such a change could potentially make accessing larger or more complex amounts of information more difficult. While it would be regrettable, if it is the only major amendment, it is perhaps one we can live with.

What was also interesting in the article was the suggestion that the report will be critical of Tony Blair’s lack of engagement with the scrutiny, saying it will

strongly criticise a refusal by Blair to give evidence to its inquiry into the operation of the Freedom of Information Act, after the former Labour prime minister described it as one of his greatest mistakes in office. The MPs’ report will “deplore” Blair’s refusal to give evidence in person or in writing, and will publish his letter explaining that he was too busy.

The indefatigable Campaign for Freedom of Information (CFOI) inform us the report will be published on 26 July: when it is, and if it is as described, it may be that it was strongly influenced by the CFOI’s extraordinarily powerful supplementary submission, which demolished some of the prior claims by those arguing for illiberal changes. But all those who submitted evidence in favour of the status quo, and all who have campaigned to save FOI, will feel their efforts have been worth while.

Fingers crossed…

 

 

FOI request shows that minister told the truth!

The saveFOI campaign has occasionally been critical of some of comments on Freedom of Information Act 2000 by ministers, past and present.

Never let it be said that we’re unfair though. A very interesting post on the excellent fullfact.org site follows up reports from the Morning Star last month which suggested – on the basis of emails disclosed in response to an FOI request – that Iain Duncan Smith had lied to the UK Statistics Authority. Fullfact have looked closer, however, and say that, in fact

…what Mr Duncan Smith had said was in fact accurate…While the emails unearthed by the FoI request do show that there was considerable discussion between DWP Ministers and statisticians on what was and wasn’t an acceptable method of releasing this information, the eventual arrangements conformed with the final advice from the DWP’s Head of Profession for Statistics.

Fullfact point out that this shows that there is ambiguity about statistical practice in government and the hard job that departmental statisticians have. As a result

…in future, Full Fact plans to use more Freedom of Information requests to help scrutinise the important “behind the scenes” role of the government statisticians.

FOI can hold ministers to account. It can expose their wrongdoing. It can also, it seems, exonerate them when they are accused of lying.

It’s in everyone’s interests to save FOI from being weakened following post-legislative scrutiny.

What now for FOI (and saveFOI)?

The Justice Committee has now heard its final evidence in the post-legislative scrutiny of the Freedom of Information Act 2000. Links to the uncorrected oral evidence can be found on our Resources page.

So what now?

It is understood that the Committee will prepare a report based on the written and oral evidence it has received.  It will then be for Parliament to consider what proposed changes – if any – should be made to the FOI Act. Clearly, before the Committee’s report is published, it would be premature to speculate too much, but that does not mean that saveFOI’s work is done, and we will continue to update the blog, and tweet, for as long as necessary.

In that spirit, we were hugely impressed last week with a further submission to the Committee, made by the Campaign for Freedom of Information, which corrects (in fact, effectively demolishes) some of the evidence previously given – particularly by Lord O’Donnell and Jack Straw.

It also lists forty-odd examples “of excessive or wasteful spending revealed by FOI which is generally not taken into account when assessing the Act’s ‘costs’”.

The Campaign for Freedom of Information, and its tireless director Maurice Frankel, were key promoters and cheerleaders for FOI in the years before enactment, and have continued to perform this role in the years since. It’s fitting, therefore, that this final piece of evidence (which we understand the Committee agreed to accept) comes from them, and is so very compelling.

saveFOI hope that – with the help of the Campaign for Freedom of Information’s submission, and many other submissions by supporters of FOI – the Committee’s report will not contain recommendations such as charging people to make an FOI request, or for changes that would mean that qualified exemptions become absolute ones. We recognise, however, that even if it does, the game is far from over: a select committee does not make or change the law – that is a matter for Parliament.

Lobbying and campaigning will continue until we are satisfied that FOI has been saved.

saveFOI’s letter to the Justice Committee

On April 23 2012 the saveFOI campaign wrote to the Justice Committee, because of our concerns that the Committee had not received oral evidence from all relevant witnesses during its post-legislative scrutiny of the Freedom of Information Act 2000. While we acknowledge the thoroughness of the Committee’s work so far, it is to our regret – and, we feel, arguably to the detriment of the post-legislative process – that the Committee do not appear to have accepted our suggestions: we understand that tomorrow’s session will be the last, and the response we received was limited to informing us of the types of witness at that session, and at the penultimate one.

This was our letter

Sir Alan Beith MP
Chairman, Justice Select Committee
House of Commons
London SW1A 0AA
23 April 2012

Dear Sir Alan

Post-legislative scrutiny of the Freedom of Information Act

We are writing to congratulate you and your committee on the thoroughness of your review of the Freedom of Information Act to date. However, we are concerned that the committee has not yet heard from a number of groups and individuals who we feel have an invaluable insight into the operation of the Act.

We hope that the committee will give consideration to inviting some or all of the following to give oral evidence. This would ensure that the committee benefits from the experience of those with direct and practical experience of the Act’s implementation, and is able to reach its conclusions in the light of a well-balanced body of evidence.

Most public authorities employ officers with responsibility for compliance with the Freedom of Information Act. These individuals have a unique insight into how the Act works in practice. We would suggest inviting 2-3 officers, perhaps from different parts of the public sector, to give evidence. One of our co-founders, Mr Paul Gibbons, who provided written evidence to the committee and has worked as an FOI practitioner in three public sector organisations, would be willing to answer questions at an oral hearing if invited.

We were concerned at the negative picture of the Freedom of Information Act presented by Mr Jack Straw MP at the last oral hearing of the committee. There are other former ministers who have a more positive view of Freedom of Information than Mr Straw, and who could provide essential balance to his comments. We would suggest that the committee invite Lords Wills and Falconer, who have both exercised responsibility in government for FOI, to give their valuable insight into how FOI has affected the running of Government.

We thank you for considering our suggestions above, and would be pleased to answer any questions that the committee may have based on our combined experience as FOI Officers, public officials and experts in this area of the law. We wish the committee well in reaching its conclusions on the state of freedom of information in 2012.

Yours sincerely
Jonathan Baines, Paul Gibbons, Ibrahim Hasan, and Tim Turner of the Save FOI Campaign

 

Last Two Evidence Sessions of Justice Committee Announced

The sixth and seventh (and last) evidence sessions of the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000 have been announced. They will take place on Tuesday 15th and Wednesday 16th May, and evidence will be heard from the following (with hyperlinks to their written evidence submissions where available):

15th May

At 10.30:

• Roger Gough, Cabinet Member for Business Strategy and Support, Kent County Council;
• Edward Hammond, Research and Information Manager, Centre for Public Scrutiny;
• Tracy Phillips, Information Compliance Advisor (Solicitor), Lambeth Council; and
• James Rogers, Assistant Chief Executive, Leeds City Council

At 11.30:

• Glenn Preston, Deputy Director of Information and Devolution and
  Pam Teare, Director of Communication and Information, Ministry of Justice;
• Marion Furr, Director of Ministerial Business and Parliamentary Accountability, Department of Health;
• Brendan Walsh, Head, Information Rights Team, Department for Environment, Food and Rural Affairs; and
• Roger Smethurst, Deputy Director of Knowledge, Cabinet Office

16th May

At 9.30am:

• Rt Hon Dominic Grieve QC MP, Attorney General

At 10.00am:

• Rt Hon Lord McNally, Ministry of Justice; and
• Rt Hon Frances Maude MP, Cabinet Office

The saveFOI campaign wrote to the Committee some weeks ago, suggesting that it should hear from serving FOI officers, and suggested our own Paul “FOI Man” Gibbons. This offer was not taken up, to our regret and – we think – to the detriment of the post-legislative scrutiny process.