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

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3 thoughts on “Why an FOI charge is a terrible idea

  1. Andrew says:

    These are all good reasons, but perhaps reason number 2 is the most crucial in the political calculus that those in Whitehall and the whips’ office will be engaging in round about now.

    FOI in NZ has been largely left alone for 25 years (it was strengthened, not weakened in 1987) of its 30 years. I have no doubt that the fact that general elections take place every 3 years, and both main parties have rotated in and out of office multiple times in those 30 years since it was introduced, is a key factor in why it has largely been left alone. Every time a government is in office, they want to scratch the FOI itch. But thankfully, when they go to scratch it, the little cartoon angels and devils that appear on their shoulders whisper to them about how useful a strong FOI law is when they’re back in opposition. And so the law is left unchanged, an MPs and party researchers go back to making great use of it when they are returned to the opposition benches in due course.

    Incidentally, when NZ’s FOI law was strengthened in 1987, it was to make use of the ministerial veto harder, not easier. In the few years after enactment, some individual ministers (who, as Sue Cameron points out in her Telegraph article today, had not grown up with FOI) used the veto a few times. Through one of the accidents of history, the Labour government elected in 1987 had a law professor as Prime Minister. He wanted to get rid of the veto altogether, as he understood the principle that FOI should ultimately hand power over disclosure to a disinterested 3rd party. But when this wasn’t accepted (by the regulator themselves, who didn’t want the nature of the Ombudsmen’s office to change into that of an Information Commissioner), he did a nice piece of drafting: in future (and it remains this way today), ministers would need collective cabinet agreement and have to lay the equivalent of an Order before the House. This (a) ensured that all Ministers would have to answer for the actions of their secrecy-inclined colleague, and (b) meant that everybody knew the veto was being used. So far, so similar to what the UK government verbally agreed to during passage of the UK legislation. But the sting was in the tail: if the government used the veto, it would also have to pay the costs of the requester, if that person wanted to challenge the use of the veto via a judicial review.

    Funnily enough, no government since then has found it politically attractive to make a veto claim for secrecy and then have the whole thing dragged before the courts at its own expense.

  2. drannyboy50 says:

    I have a V interesting vexatious test case before the Upper Tribunal (t.b.c)if anyone is interested

  3. […] 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 […]

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