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.

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”.

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.