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
Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: