Category Archives: FOI Charges

Could Wikeley make FOI changes less likely?

The following post by saveFOI co-founder Paul Gibbons, a.k.a “FOIMan”, first appeared on his blog http://www.foiman.com/ and is reproduced here with his permission and our thanks.

Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

  • reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
  • allowing public authorities to include consideration time in the assessment of this limit;
  • allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
  • charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

Important FOI briefing session announced

The extraordinary Campaign for Freedom of Information, to whose coattails all FOI supporters hang, have announced a briefing session on 18 February to discuss the continuing threats to the Freedom of Information Act 2000 (FOIA). As they point out, particular areas of concern are

The government is planning to amend the Freedom of Information Act to make it easier for authorities to refuse requests on costs grounds. This could have serious implications for requesters…
The government is also proposing to allow unrelated requests from one person or group of people to the same authority to be refused if their number is overly burdensome…Local newspapers, which cover a range of different issues involving the same authority, could be among the first casualties of this proposal…
Ministers are also considering introducing charges for appealing to the Information Rights Tribunal – a measure likely to discourage many appeals from being made.
saveFOI members will be attending, and we also intend to continue to support the Campaign in its defence of FOIA, for as long as it takes.

The Struggle Continues

Those of us who feel strongly about the value of public sector transparency, and the Freedom of Information Act 2000 (FOIA), might make the mistake of thinking that everyone, incuding our elected representatives, feels the same. However, a Westminster Hall Debate on the 24 January suggests the post-legislative scrutiny of FOIA is not the most pressing of issues in the eyes of MPs: only a handful attended

As the opening speaker, Alan Beith (who also chaired the Justice Committee scrutiny sessions) said, this might have been because another important debate was taking simultaneously taking place in the Commons, on extending the franchise. Nonetheless, as previous experiences have shown, it is important that those of us who care about the subject remain vigilant.

For interesting analyses of the debate I would point you to excellent pieces by Alistair Sloan, and Matt Burgess (Matt did two pieces) on which I gratefully draw. As they show, the key contributor to the debate was by Helen Grant, Parliamentary Under-Secretary of State for Justice, speaking on behalf of the government. As saveFOI and other commentators have expected, and as the Ministry of Justice’s response to the Justice Committee’s report indicated, the government is looking at some potentially illiberal amendments to FOIA.

She spoke of “disproportionate burdens” caused by “industrial users” of the Act

We cannot ignore concerns raised about the burdens it imposes on public authorities, this is especially important in the current challenging and very difficult financial climate and at a time when more Freedom of Information requests than ever before are being received…We will also consider…ways to reduce burdens in a fair and proportionate way, including addressing where one person or a group of peoples use the act to make unrelated requests to the same public authority so frequently that it brings an inappropriate burden.

On one view this is not greatly exceptionable. The issue of vexatious requests, by vexatious requesters, is a problem for defenders of the Act, and the Information Commissioner and Information Tribunal arguably take different approaches to these cases. Forthcoming decisions by the Upper Tribunal may bring some clarity. However, as Matt suggests,  within the category of a “person or a group of peoples [using] the act to make unrelated requests to the same public authority…frequently” could fall journalists, campaigners and local active citizens. Any changes which threaten the ability of these and other groups properly to hold public authorities to account will be vigorously opposed.

Ms Grant also confirmed that the government is looking at reducing the section12 minimum cost limit beyond which requests need not be dealt with, while introducing an effective “thinking time” provision. As Maurice Frankel, of the Campaign for Freedom of Information, told the Telegraph

Any request raising new or challenging issues is bound to require significant thinking time at first and be liable to be refused under these proposals. Authorities should not be protected from having to think about new issues, that’s a recipe for stagnation.

There was also suggestion that the use of the bludgeoning ministerial veto will be reviewed, not to see if it can be used less, but if its use might be extended beyond the “normal” usage relating to cabinet discussions (“there is no limitation in the Freedom of Information Act itself which prevents the veto being used for other information”).

So, despite the supportive words of Alan Beith – long a friend of freedom of information – and some of the few other MPs who turned up, it seems, as Paul Gibbons warned in our last post, that “the Government has decided to take its own course on FOI”.

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.

Advance News on FOI’s Future?

The Guardian yesterday appeared to have advance news on the outcome of the Justice Committee’s post-legislative scrutiny of the Freedom of Information Act. It reported

Pressure from former senior Labour figures, including Tony Blair and Jack Straw, as well as Whitehall mandarins, to “turn back the clock” on freedom of information legislation has been decisively rejected by an all-party group of MPs…The report…[will]…reject the idea of charging for FoI requests, arguing that any blanket charges that would start to cover the costs would be prohibitively high.

If 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 would hinder people from exercising their rights under the Act would be worrying and retrogressive.

It also appears that the Committee has not bowed to pressure to change some exemptions into absolute ones (which once engaged cannot be overridden by public interest in disclosure):

[it] is to come down against creating a sweeping exemption from FoI legislation for information used in Whitehall policy formulation and development. The MPs also reject weakening the FoI law on the release of information that would prejudice collective ministerial responsibility, or inhibit the frank exchange of views within the government.

The article goes on to suggest, however, that there may be one signficant change to the cost limit for responding to a request:

The MPs do, however, back a two-hour cut to the 18-hour time limit after which a public body can impose a one-off charge to cover the cost of the extra work of dealing with a request.

Such a change could potentially make accessing larger or more complex amounts of information more difficult. While it would be regrettable, if it is the only major amendment, it is perhaps one we can live with.

What was also interesting in the article was the suggestion that the report will be critical of Tony Blair’s lack of engagement with the scrutiny, saying it will

strongly criticise a refusal by Blair to give evidence to its inquiry into the operation of the Freedom of Information Act, after the former Labour prime minister described it as one of his greatest mistakes in office. The MPs’ report will “deplore” Blair’s refusal to give evidence in person or in writing, and will publish his letter explaining that he was too busy.

The indefatigable Campaign for Freedom of Information (CFOI) inform us the report will be published on 26 July: when it is, and if it is as described, it may be that it was strongly influenced by the CFOI’s extraordinarily powerful supplementary submission, which demolished some of the prior claims by those arguing for illiberal changes. But all those who submitted evidence in favour of the status quo, and all who have campaigned to save FOI, will feel their efforts have been worth while.

Fingers crossed…

 

 

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.

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

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

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