Monthly Archives: May 2012

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.

Advertisements

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:

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.

 

Desire for a FOI charging regime equates to reduced accountability of public bodies

A guest post, originally posted on his excellent Hawktalk blog, by Dr Chris Pounder

 

Desire for a FOI charging regime equates to reduced accountability of public bodies

I have to confess that I am just a normal type of guy who reads Hansard and watches the BBC’s Parliamentary Channel. The last (wet) bank-holiday weekend, for instance, there was a riveting repeat of Jack Straw’s evidence to the Justice Committee on the operation of the Freedom of Information (FOI) Act.

As Home Secretary, Jack Straw was responsible for piloting the Data Protection and Freedom of Information Bills through Parliament; he knows where the legislative skeletons can be found. And at the time of his stewardship of the FOI Bill in Parliament, he knew that Tony Blair had decided that FOI was his worst idea ever. He confirmed that but for the Ministerial veto, the Government would have dropped the FOI Bill.

So I think his take on the current review of FOI is important. I also think Straw’s position is close to what I think the Government would like to propose.

As an aside, remember that the Data Protection and FOI Acts started off as Home Office Bills (prop J. Straw); that is why these Acts have significant exemptions in areas that cover Home Office functions such as law enforcement, policing, immigration and national security. Jack Straw protected his fiefdom very well.

Anyway back Jack Straw’s evidence to the Justice Committee; it amounted to four propositions:

•    charge the applicant about £10-£15 for each FOI access request;
•    make the FOIA exemptions in Section 35 (formulation of Ministerial policy etc) and Section 36 (prejudice to the effective conduct of public affairs) in so far as they apply to Ministerial decisions an absolute, class exemption (i.e. no public interest test);
•    reword the “formulation or development of government policy” part of the Section 35 exemption so that it applies indefinitely, and
•    keep the Ministerial veto as a safeguard to be used sparingly in other cases.

The argument over FOI as debated at the moment has two strands:

•    One strand goes something like this: “FOI requests costs us £184 each so it is only proper the applicant pays a modest amount, especially in these days when money is tight”.
•    The second strand is that Ministers (unlike NHS boards, police boards and Mayors in large conurbations) are in a special place because when they determine policy, they should be able to keep key information secret for at least 20 years (the minimum time when documents become public records).

As can be seen the second argument is far more difficult to make; that is why there is a fuss over the latest veto re the NHS Risk Assessment. Hence, the focus of debate is more on the first strand.

Backing the cost arguments is a report is a Mori study which has provided some cost estimates (which are not representative, if you read the report carefully). For example, Mori reports that:

“Statistics produced by the Ministry of Justice over the period 1 October 2010 – 30 September 2011 indicate that Departments of State and other monitored bodies covered by these statistics received a total of 45,958 FOI requests. In order to produce an estimate of the total annual cost in staff time of processing and responding to central government requests, it is possible to multiply £184 (the average cost of the 225 FOI requests submitted to central government) by the total number of requests received. This gives an estimated staff cost of £8,456,272 per year”.

Before you say that £8.5 million could allow us to build a new school or a hundredth of a new fighter aircraft, just ask what this money is doing?

I would argue that for £8.5 million, we get 46,000 FOI requestors using their own resources to make a Government accountable for its spending of £722 billions (the annual figure for expenditure on Central Government Departments). In other words, a relative spend of a small amount on FOI (0.01% of Government expenditure on Central Government) has the potential to hold Government accountable across the whole extent of its policy range (subject to an exemption, of course).

Similarly, for the Universities. For instance, JISC, the UK’s body on information and digital technology in higher education, tracked 36 requests in seven institutions and found that the average cost, including staff time, of answering an FoI request was £121. Extrapolating this research to all FOI costs for the University sector, the cost of FOI can be estimated to be between £2.3 and £9.2 million (or around 16,000 – 40,000 requests across the University sector – if that £121 number is accurate).

But again ask: “What do you get for that money?”. In the UK, there are about 120,000 students paying about £7,000-£9,000 each per year under the new student loan system – that is about £1 billion; the public money spent on Universities by the Treasury is  around £9billion. So it follows that members of the public are contributing £10 billion to University sector; so spending something like £5 million on general public accountability to 25,000 requestors via FOI. This represents about 0.05% of spending in the University sector; pretty good value I would argue.

Of course these numbers (i.e. the 0.01% and 0.05%) I have quoted above are only an approximate guide, but they should be of the correct order of magnitude. They confirm that FOI expenditure is small beer indeed compared with what every taxpayer gains in accountability.

Of course, also, it’s a pain for a University to provide details of why it is doing animal research that has been banned in Germany or why a Minister does not want to publish a health risk assessment (suspected to confirm that the new Health Reforms could destabilise the NHS; yesterday’s veto does not help allay those fears, I should add).

However this is what accountability is all about; it is very uncomfortable at times for those being held to account. So when Ministers use private emails to conduct a public policy debate (to avoid FOI), they really don’t like it when an independent regulator says that these emails are still subject to FOI requests.

Once upon a time, making public bodies accountable was central to Government policy. Remember in June 2011, Communities and Local Government Secretary Eric Pickles, stated that he wanted “a new wave of local scrutiny by citizen journalists, microbloggers and armchair auditors” as their role was needed in  “in eliminating waste and inefficiency to deliver value for money to the taxpayer and help protect services”. Isn’t this is what the product of an FOI does in many instances – raise issues of concern?

The Secretary of State even cited cases uncovered by local armchair auditors; for instance in Barnet where “serious deficiencies in procurement arrangements saw the council spend over £1m of taxpayers’ money to hire a private security firm with no tendering exercise, contract or proper invoicing. It was and activist bloggers” or in Islington where “many invoices had been paid more than once”.

I would argue that an adjunct of the Pickles’ policy of encouraging “armchair auditors” is to empower them to make follow-up FOI requests, free of charge, about public contracts. If the Government introduces charges for FOIA requests, the Mr Pickles “armchair auditor” idea is finished. Which armchair auditor is going to shell out £10-£15 to follow an accounting trail?

In other words, I think the issue about FOI is simple: if you don’t want public accountability, implement a FOI charging regime. Tony Blair understood that charging undermines FOI – and his memoirs eloquently explained the motive. It appears that this Government is following in Blair’s wake for the same reasons one should add.

Honestly, the final equation is very simple: FOI charging = unaccountability (especially for Central Government).

References

Jack Straw’s evidence session (uncorrected): http://www.publications.parliament.uk/pa/cm201012/cmselect/cmjust/uc1849-v/uc184901.htm

Local Government FOI costs: http://www.lgcplus.com/briefings/corporate-core/legal/cost-of-foi-requests-rises-to-34m/5019109.article

Higher education FOI costs: http://www.timeshighereducation.co.uk/story.asp?storyCode=419674&sectioncode=26

Mori cost evidence: Download Blog May 2011 investigative-study-informing-foia

Dr Chris Pounder, with colleague Sue Cullen, formerly of law firm Pinsent Masons LLP, are the longest-established training team dedicated to information law. Their website is www.amberhawk.com