Monthly Archives: April 2012

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

Fifth evidence session of Justice Committee announced

The fifth evidence session of the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act 2000 has been announced. It will take place next Tuesday, 17 April, and evidence will be heard from the following:

At 10.30am

  • Rt Hon Jack Straw MP

At 11.30am

  • Dr Nick Palmer, Director of International and Corporate Relations;
  • Michelle Thew, Chief Executive; and
  • David Thomas, Legal Consultant, British Union for the Abolition of Vivisection

The British Union for the Abolition of Vivisection’s written evidence is here.

In 2009 Jack Straw, famously, as Justice Secretary, was the first minister to exercise the government power of veto under section 53 of the FOI Act, in order to prevent disclosure of minutes of Cabinet meeting during the run-up to the Iraq war in 2003. See the Campaign for Freedom of Information’s press release at the time.

The Daily Telegraph also reported in 2009 that Straw was part of a delegation of MPs who lobbied the then Information Commissioner as he was investigating complaints about refusals to disclose details of MPs’ expenses claims.

saveFOI plan to live-tweet this session, as we have with all four previous ones.

FOI – A New Exemption?

In a talk given to a “Solicitors in Local Government” weekend school the Deputy Information Commissioner Graham Smith was reported to have made some interesting observations relating to the post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA). He was said by UKAuthority.com to have told his audience that

local government’s concerns about freedom of information are not being heard by the Commons Justice Committee as it scrutinises the Freedom of Information Act. ‘There’s no strong voice from local government in this process before the justice committee.’

Perhaps more importantly, he was also said, by the Law Society Gazette, to have warned that

the volume of FoI requests would continue to increase. Ironically, one cause was the government’s transparency agenda: the requirement to publish all items of spending over £500 ‘just puts things out there that cause people to ask questions’, he said. ‘I can’t see that changing.’

‘The clear challenge is that the number of requests is going to go up and up, often building on information that is already in the public domain.’

and perhaps most interesting of all that

the information commissioner would support moves to introduce a specific exemption for frivolous requests

Two observations can or should be made: first, these are second-hand reports of his speech – we are not aware that it has been published anywhere, or that any formal statement has been made by his office on this subject; second, FOIA already has an exemption at section 14(1), which allows public authorities not to comply with a request that is “vexatious” and, if it was correctly reported, it is interesting that Smith’s apparent nod towards a possible new exemption was made the weekend after the Information Tribunal gave a very strong  judgment which criticised the makers of “vexatious requests” and appeared to advocate a broad interpretation of “vexatiousness”

Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception. In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests

Whether, ultimately, Parliament decides to enact a new, or amended, exemption for “frivolous requests”, remains to be seen, but it seems that the Information Tribunal (or at least this specific tribunal) is perhaps less convinced of a need for change than the ICO.

Behind Closed Doors

A guest post from Jonathan Baines

“Before the game’s afoot, thou still let’st slip”

The government is said to be proposing to introduce charges for making Freedom of Information Act 2000 (FOIA) requests. BBC Newsnight reports that it has

learned that the government is gearing up to charge for freedom of information enquiries… gearing up to charge different tariffs

So now we know where the battle-line is drawn. Or do we?

This story comes in the middle of a process by which FOIA is subjected to what is known as post-legislative scrutiny. This process, under which a committee is asked to investigate how an Act of Parliament has operated since its commencement, has been followed in some detail by the saveFOI campaign: the founders of that campaign (of which I am one) think that the scrutiny is important. We welcome any review of FOIA, while opposing any suggestions it should be weakened. We have attended some of the committee sessions, and live-tweeted remotely where that hasn’t been possible. We have written many blog posts on the subject. Suffice to say we are actively engaging in the process as interested citizens.

But what is strange is that Allegra Stratton’s* Newsnight story did not refer to the post-legislative scrutiny process. It arrived on the back of no committee report, no government statement, no ministerial interview. The government guidance on post-legislative scrutiny suggests that Committee findings should not be pre-judged, or pre-empted

The Committee’s report would contain such observations and conclusions about the implementation and operation of the Act as the committee thought fit. These would be directed towards Government, which would be expected to respond in the normal way

Yet, if Allegra Stratton’s sources are reliable, it looks like someone in government has already made up their mind, and wants to get that message out.

The Prime Minister recently spoke about FOI at the Commons Liaison Committee, and some of that oral evidence was shown in the Newsnight report. He contrasted FOIA unfavourably with pro-active disclosure of information under the government’s Transparency agenda (on this subject, Tim Turner’s post here is essential reading), and said that

Making government more transparent is the best thing

No one would argue with that, although as the saveFOI campaign has previously said, FOI and the Transparency agenda are two cogs in the same machine, not options to be chosen between.

Any proposal to charge for making FOI requests would be a huge (and in my view, detrimental) change to one of our most important civic rights, and transparency surely dictates that such a proposal should be discussed openly, so that pros and cons can be given equal space? Selective, non-transparent disclosure of proposals enables those supporting them to give only such information which supports their cause. It enables them to set the agenda, get the right headlines and draw the opposition’s sting. It is not a transparent process, and I would hope that all people, including politicians, who support the Transparency agenda, would oppose it.

Decisions about the future of FOI cannot be allowed to take place behind the closed doors of government.

*By the way, if Allegra’s reading this – please wear a seatbelt when you’re in the back of a taxi. It’s an offence not to, and, more importantly, it’s really dangerous .

Jonathan Baines works in local government. He blogs at informationrightsandwrongs and tweets as @bainesy1969

Breaking News on FOI Charges

The BBC’s Newsnight tonight reported that the Government is planning to introduce charges for FOI requests, perhaps involving a “range of tariffs”. At this stage we have no further details.

SaveFOI is obviously very concerned by this development, which appears to pre-judge the outcome of the ongoing post-legislative scrutiny of the Act being carried out by the Justice Select Committee. Charging for FOI requests would drastically curtail the ability of ordinary people as well as charities, journalists, businesses and others to hold public bodies to account. This seems a particularly strange move for a Government whose Prime Minister has said “We want to be the most open and transparent government in the world.”

If you would like to register your concern over this proposal, please read how you can help, and do sign our e-petition at http://epetitions.direct.gov.uk/petitions/29757