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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.

Why an FOI charge is a terrible idea

A guest post by Tim Turner

In the current climate where people and organisations seem keen to take aim at FOI, one recurrent theme is to introduce a charge on FOI requests or – as the Blair government considered only a year after the 2000 Act’s implementation, a limit on the number of requests that could be made. Newsnight recently reported that such proposals are being considered by the Cabinet Office (http://www.bbc.co.uk/programmes/b01fkbvw), although they denied all knowledge of this when I asked them: http://www.whatdotheyknow.com/request/proposals_for_foi_charges.  It’s a superficially simple idea, and yet there are many reasons why it’s a terrible idea. Here’s five

1. It’s an act of huge hypocrisy

Like Tony Blair before him, in opposition David Cameron trumpeted the importance of FOI and transparency. But he cannot pull the Jack Straw argument that it’s all a huge and unwelcome surprise (and neither can Straw, because I met the civil servants working on FOI in the Home Office during the bill’s passage when I worked at the ICO, and the Labour hierarchy were told what they were letting themselves in for). Cameron was elected in 2001 – the year after FOI was passed, and it was implemented in the same year he was elected leader of the Conservative Party. In other words, he entered politics in the FOI Age; he knew what kind of world he was entering, and he sold himself as being part of it in run-up to the 2010 election.

2. It’s an act of supreme political myopia

Unlike Tony Blair before him, in opposition both David Cameron and Nick Clegg’s parties benefitted hugely from FOI’s implementation. When I worked in local government, we received large numbers of FOI requests sent explicitly from the Conservative and Liberal Democrat Research Departments (several of Michael Gove’s close advisors made a lot of them). They used FOI routinely. Here’s a little tip for you all – sooner or later, you’re going to be in opposition again. Look at the political drama John Healey generated from his FOI requests on the NHS Risk Register. If you add a charge to FOI, you’re going to restrict access to a vital political resource that you, or your predecessors, are going to need.

3. It represents the ultimate triumph for spin

Nobody proposes that we will be charged for access to press releases. Journalists will not have to pay for comments, tips or leaks. All of the information that public bodies from Government departments down to schools want the public to see will still go out, free of charge. Spin will be easier and cheaper to get than facts. This is, in itself, a good enough argument for FOI to be free. British public life is already choked with debates fuelled by prejudice and tribalism – any responsible government should do whatever it can to allow access to facts and evidence to improve the quality of our dire political discourse. Unless, of course, they have something to hide.

4. It’s regressive

Perhaps a well-funded media or political organisation will be able to make as many FOI requests as they do now (if there is such a thing). But think of the average voter, the small charity of pressure group, the unemployed, the retired – the introduction of a charge will have a disproportionate effect on those who need to use FOI most. If we’re all in it together, why should access to a vital tool of democracy be based on ability to pay?

5. It will cost a fortune

Everywhere I have ever worked has come up with a bizarre-sounding estimate for how much it costs them to raise an invoice. While there is an entirely valid and separate argument about why this should not be the case, the introduction of a charging scheme for FOI will involve massive costs. Every organisation subject to FOI will have to change its policies and procedures. It will have to put in place additional administrative measures, train its staff (hey, this sounds like a good bit!) and deal with pointless paperwork.

And that is just the start. What is an FOI request? How many punters will try to get round the charge by claiming that they’re not making an FOI request but doing something else? How many complaints and other correspondence will be complicated and distended by back-door information requests? How many councillors and MPs will see their postbag co-opted by those seeking information by other means? And how much staff time will be taken up by this new process of interpretation and mediation? Anyone who pays income tax, council tax, business rates, corporation tax and VAT have already paid for this information – the process of charging us for it again will be needlessly and inevitably expensive.

And to conclude, if an FOI charge comes in, however it’s done, there will be ways around it. People like me will donate our time and identities to make requests on behalf of others if some kind of volume cap is introduced. If a flat rate fee comes in, I am ready to start the fund to help public-spirited citizens to make the most important FOIs with my own money, and I hope I won’t be alone.

FOI can be annoying, difficult, and inconvenient (where in the world would it be easy?) but a charge will change none of that. It will stain the reputation of every politician who votes for it, and implicate every public body who agitates for it. Better records management would provide a much bigger efficiency saving for the public sector than a silly charge could ever do, without the concurrent attack on accountability.

But you don’t hear anyone shouting for that, because this whole debate is not about cost or efficiency. It’s about power. Sunlight may be a great disinfectant, but it seems that some are still worried about getting burned.

Tim Turner runs 2040training, blogs at 2040info.blogspot.com and tweets as @tim2040

In defence of FOI, in three parts

Blogger and law student Alistair Sloan has an excellent three-part blog-post series In Defence of FOI, hosted at Avizandum Times:

In Defence of FOI Part 1

In Defence of FOI Part 2

In Defence of FOI Part 3

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