FOI Man

May 10, 2012

Protection of Freedoms Act – FOI changes

Filed under: Amendments,Data Protection Act,Freedom of Information Act,Re-use and Copyright — FOIMan @ 5:47 pm
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FOI Man summarises the changes to the FOI Act that result from the passing of the Protection of Freedoms Act last week. And finds that not much has changed over the course of the last year.

The Protection of Freedoms Act came into force on 1 May 2012. Amongst its many implications are those for the Freedom of Information Act (though we still await a commencement order in respect of these provisions, so it is not yet clear when they will come into force). I previously wrote about this when the Bill was first published early last year, but now that it has entered the statute books, it is time to see what the approved legislation requires.

Part 6 of the Act covers the freedom of information and data protection changes. Section 102 amends section 11 of FOI to the following effect:

  • where a public authority is asked for information that is in the form of a dataset (defined in the new section 11(5) – or s.102(2)(c) of PoFA), and the requester asks for it in electronic form, as far as is reasonably practicable (explained at s.11(2) of the existing FOI Act), the public authority must disclose the dataset in a re-usable format.

A new section 11A:

  • requires that where the copyright of a disclosed dataset belongs to the public authority, it will be subject to a licence to be specified by the Secretary of State (presumably Justice) in the Section 45 Code of Practice (a new revision of which, we assume, must be forthcoming);
  • allows an authority to charge a fee for re-use in line with section 11B or any other regulations that provide for a fee to be charged for re-use;
  • requires an authority to issue a fees notice to an applicant where it is planning to charge for re-use;
  • removes the obligation to allow re-use until such a fee has been paid.

And section 11B:

  • empowers the Secretary of State (again, presumably Justice), in consultation with the Treasury, to establish fees for re-use of datasets through regulations;
  • these regulations would apply to datasets disclosed in response to FOI requests and listed in a public authority’s publication scheme.

Talking of publication schemes, public authorities will be obliged to publish datasets disclosed in response to FOI requests in their publication schemes unless they are satisfied that it is not appropriate. They will also have to publish updated versions when they change. Section 19 of FOI has been amended to this effect (it now includes a section 19(2A-F)).

Section 45 has been updated to require the Secretary of State to make provision in the Code of Practice for disclosure of datasets.

Section 103 of the Protection of Freedoms Act closes down the loophole in the coverage of FOI for bodies established by two or more public authorities by amending section 6 of FOI.

Section 104 extends certain provisions of FOI that hitherto had not applied to Northern Ireland to that jurisdiction.

Section 105 amends both the Data Protection Act and FOI to extend the Information Commissioner’s term of office from 5 to 7 years, and limit those appointed to the post to one term.

Section 107 amends section 47(4) of FOI allowing the Information Commissioner to charge for “relevant services” – training, multiple copies of published material, and conferences – without consulting the Secretary of State (as he was obliged to do previously).

In summary:

  • public authorities are obliged to make datasets available in a re-usable format on request;
  • re-use will be allowed under the terms of licence(s) to be announced, and charging will probably be allowed in line with existing or new regulations;
  • disclosed datasets will normally have to be published (and kept up-to-date) under an authority’s publication scheme;
  • publicly-owned companies owned by more than one public authority will no longer escape FOI;
  • Information Commissioners will serve only one 7-year term; and
  • expect the Information Commissioner’s Office to start charging for training and conferences.

Not much has changed on this aspect of the Act since the first draft over a year ago. We now need to watch out for the commencement order bringing these changes into force, the revised section 45 Code of Practice, and any regulations on charging for re-use.

April 21, 2012

Should a public body disclose details of requests made by a named individual?

Filed under: Data Protection Act,Exemptions,Freedom of Information Act,Personal information — FOIMan @ 11:17 pm

FOI Man looks at whether a named individual’s FOI requests should be published or disclosed. 

Guardian writer Ben Goldacre asked on Twitter whether public authorities are able to publish or disclose the names of FOI requesters. This is an interesting question which is difficult to explain in 140 characters.

First off, my basic rule on this is “no”. Fundamentally, I just don’t think its ethical. Most FOI Officers are even nervous about circulating the details of a requester internally, let alone outside the organisation. But here’s the legal argument.

I could spend a long time telling you about a chap called Durant, and case law involving him which established the current legal definition in the UK for what counts as personal data. But I won’t. Suffice to say that information about an individual that has a “biographical” element will be personal data.

The fact that you as an individual make an FOI request about a particular subject is enough information in my view to be considered personal information. All personal information is covered by the Data Protection Act, which sets out conditions for the processing (including disclosure) of that information. The most important is that any processing should be fair and lawful.

Clearly it’s unfair if a public authority announces that you’ve been making FOI requests to them without your consent. Most people wouldn’t expect that to happen, so it would be a nasty surprise if it did. Which is exactly what happened to one requester to a GP’s surgery recently.

But, as Ben Goldacre asked, what if you’re a big multi-national tobacco company making an FOI request? Well, in theory, that’s different. A tobacco company is a “person” from the point of view of FOI, but it is not a “data subject” in Data Protection terms.

But in practice, it might not be that simple. Even an FOI request from a company is usually signed by an individual employee. So is the request from the company or the employee? It will depend on the context, and may not be clear.

If someone makes an FOI request for a named individual’s FOI requests, that information would still be personal data, and in theory, a public authority could argue (and in my view would rightly argue) that section 40(2) of FOI applies – ie the exemption for personal data. The exception might be if they had been given consent by the original requester (the data subject) to disclose their requests. Indeed, the section 45 Code of Practice (also known as the Lord Chancellor’s Code), recommends that public authorities consult third parties (and that would include corporate bodies) if they are asked for information provided by those third parties. So in theory, at the very least, a public body should consult a requester before disclosing their requests.

This can lead to a spiral of requests. I remember one request for correspondence between the Mayor of London and an individual. I then consulted the individual, who made an FOI request for the identity of the first requester. So…then I had to ask the first requester for consent to disclose his identity. It can become rather complicated, and the FOI Officer has to keep his wits about him in these cases!

Another exception might be if there was a public interest in disclosing the requests made by a named requester. This might well be another argument for disclosing the requests made by, say, a tobacco company. At a stretch, it might be feasible for a public body to argue that there was a public interest in disclosing the requests made by an individual who had made excessive use of FOI to tie up the resources of an organisation. But that’s a dangerous road to go down. I can imagine the Commissioner or Tribunal arguing in response that the Act provides alternative mechanisms for dealing with such situations.

It would be different if a requester asked for, say, all requests on a particular subject, and the requests could be disclosed without identifying the requester. In effect, the information ceases to be personal data so can be disclosed. Similarly, a public body can publish requests as long as they don’t name the requester. Indeed this happens all the time with Disclosure Logs.

So, in summary, public authorities shouldn’t publish or disclose the requests made by a named individual without their consent, unless there is a strong public interest in doing so.

 

April 3, 2012

Is the Tribunal getting touchy?

Filed under: Charging,Freedom of Information Act,Vexatious — FOIMan @ 7:29 am

FOI Man suggests that a new decision from the Information Tribunal seems to reflect an awareness of wider developments in FOI.

Despite all the conflicting messages coming out of the evidence to the Justice Select Committee’s post-legislative scrutiny of FOI, there was one issue that appeared to attract a relative degree of consensus. The MoJ, the Information Commissioner, public authorities, and some bloke called Paul Gibbons, all agreed that the provision for dealing with vexatious requests at section 14 of the Act needed attention. And it seems like the members of the Information Tribunal First-Tier (or at least some of them) have been following events at the post-legislative scrutiny closely.

The problem with section 14 (or more specifically section 14(1)), is that “vexatious” isn’t defined in the Act. Generally the Commissioner and Tribunals in the past have said that it should be understood to have its normal English meaning. But in practice, at different times, they appear to have had different understandings of what that is. Which is helpful, clearly.

We know that some individuals use the Act to make requests that have no serious purpose. Whether it be requests for zombie invasion plans or for expenditure on red pens, they don’t do FOI any favours – especially when the Act itself is under review.

And it seems that the Information Tribunal First-Tier (or at least those members who considered this case) takes this view. In a decision published last week, they ruled that the Independent Police Complaints Commission did not have to provide information requested by an individual and upheld the authority’s use of section 14(1). In doing so, they over-ruled the Commissioner, and argued that his approach to section 14(1) was too restrictive. They were also unequivocally critical of the requester himself.

The decision itself is interesting, in that it will give some encouragement to FOI Officers who have often felt discouraged by the Commissioner’s decisions and guidance from using this provision even when it might reasonably be seen as justified (despite the fact that the Commissioner has regularly and publicly encouraged them to use it more). But what is most interesting to me is that the decision appears to make reference to developments in and around the post-legislative scrutiny, when it says at paragraph 19 that:

“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.”

The Tribunal also looked at refusal on the grounds of cost in this case (even though it arguably didn’t have to, given that it upheld the use of s.14(1)). The decision supports a fairly broad interpretation of the regulation 5(2) provision in the FOI fees regulations allowing public authorities to aggregate costs of requests for “similar” information received within a 60 working day period.

Again, arguably this could be interpreted by some as an attempt by the Tribunal to demonstrate that they support a pragmatic approach by public authorities. Could it be that the Tribunal has been stung by recent criticism from those such as Lord O’Donnell giving evidence at the Justice Committee’s hearings?

April 2, 2012

Arresting figures on the cost of FOI

Filed under: Charging,Freedom of Information Act,Save FOI Campaign — FOIMan @ 7:15 am
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FOI Man explains why he feels uncomfortable with one police force’s (sort of) transparent approach to FOI.

Avon and Somerset Constabulary, like many other public authorities, have a page on their website for FOI. And it’s full of really useful features like a searchable disclosure log. Fantastic. What ruins it slightly is that the top of the page is taken up by a huge box advertising how much they say answering FOI requests has cost them over the last three years.

The subtext is clear. You naughty little taxpayers should stop bothering us with FOI requests. You’re stopping us from catching murderers and burglars and taking lunch with the Press.

Now some will argue that this is a good idea. People should be made aware of how much FOI costs so that they use it responsibly. There is something in that. But here’s why I think that what Avon & Somerset are doing, and what it represents in terms of the attitude of public bodies, is wrong.

Firstly, as with all these figures that are put out during debates on FOI, the figures themselves are questionable. To be fair to Avon & Somerset, they are open about the methodology they use. They say that they use the formula requests x £30 x 18 hours. What they don’t say is how they arrived at this formula. It’s true that £30 is consistent with the cost calculated by the Ministry of Justice’s research which was published this week. But Avon & Somerset have displayed these figures for months at least judging from FOI requests about the figures. And when someone asked them recently to provide any correspondence relating to how they decided this formula, they responded that they held no information. So it isn’t possible to judge whether their methodology in calculating these figures is sound.

What is clear is that the cost of employing FOI Officers makes up a fairly small proportion of the cost quoted on the main FOI page. FOI requests have elicited a total cost of £69,587 for the 2010/11 financial year for the three FOI Officers employed.

And perhaps the idea of advertising up front the cost of compliance with FOI requests wouldn’t be so bad if the constabulary advertised the cost of other services in similarly large unfriendly numerals. Will people ringing 999 be told how much emergency calls cost to deal with before reaching an operator? I wonder if staff ordering refreshments for meetings are instructed how much the constabulary spent on tea and biscuits the previous year? I’ve got a hunch they’re not. We do know through an FOI request that the Constabulary spent £677,200 in 2010/11 on employing staff on marketing, PR and communications activities (including internet content), because they provided this in answer to an FOI request. But I’m pretty sure it isn’t prominently displayed anywhere on their website (I wonder why?).

The post-legislative scrutiny appears to have unleashed a no-holds barred full-frontal offensive on the right of general access to information. Avon & Somerset are joining the ranks of those whose evidence to the Justice Select Committee paints FOI in the darkest light possible. It’s also in the same tradition as the news stories about “wasteful” and “trivial” FOI requests that turned up in the Press suspiciously close to the announcement of the start of the post-legislative scrutiny in December.

Even I’ve been surprised by the intensity of this. Surely there are other things which offend public authorities or add to their administrative burden? So why does FOI in particular attract such venom from right across the public sector? And shouldn’t we question the fact that public resources are to some extent being used to campaign against a legal requirement?

I’ve always been sceptical about conspiracy theories. I still am. I believe that most, if not all, of the annoyance with FOI is about resources and being able to provide an effective service. Most public officials, and indeed politicians, are not consciously being secretive for the sake of it. Their righteous indignation comes from a sincere belief that FOI is an expensive addition and an obstacle to their core purpose. But their inability to see the bigger picture and understand that there are good reasons for FOI that justify some inconvenience means that less flattering perceptions of them will remain.

Incidentally, another study has been published, this time looking at the cost of FOI in the higher education sector. As with the MoJ report last week, from an academic point of view, all of this data on FOI is very welcome. But it still raises the question in my mind, why are public authorities expending quite so much effort on establishing the costs of FOI in particular? Why not other areas of their work? It leaves me feeling rather uncomfortable.

March 26, 2012

MoJ Costs Study – third strand of post-legislative scrutiny research

Filed under: Charging,Environmental Information Regulations,Freedom of Information Act,Save FOI Campaign — FOIMan @ 9:05 pm

FOI Man reports on the latest research on the cost of answering FOI requests.

The Ministry of Justice says that the average cost of answering FOI requests to central government in staff time is £30 an hour, and that on average each FOI request to central government costs £184 to answer. These are the headline findings of newly published research from Ipsos Mori for the Department. The research took requests made to a range of central government departments in a one week period in late November/early December and tracked their progress by asking staff in those departments to complete sheets saying how much time they had spent on each category of work. The grades of the staff involved were also noted so that figures could be calculated based on the seniority of the staff involved as well as the time spent.

The 8 categories of work used were:

  • administration, including allocation and logging
  • searching for information
  • reading time
  • consideration
  • discussions with other depts in central govt
  • discussions with other bodies outside govt
  • drafting submissions and consultation with Ministers/board members
  • drafting of response (including redaction) and internal sign-off.

Some might raise eyebrows at the decision to double the figures recorded by staff in the study for discussions and consultation ”because the majority of time recorded in this column did not appear to account for the time spent on the request by officials in other departments”, ie apparently because the figures weren’t as high as they thought they should be. However, by and large, the time spent on these activities does not form a huge percentage of the time spent on requests according to the report.

The study also looked at the cost of handling requests in 19 non-central government bodies and the cost findings are broadly similar. Rather curiously, they looked at the cost of handling EIR requests separately and concluded that they cost twice as much to answer as FOI requests. Many FOI Officers not involved in the research might feel that finding is questionable.

The report highlights two “expensive” requests. One it claims cost £2,500 and was not yet answered. The description of this request adds that “the majority of the discussion time can be attributed to two officials earning £100,000+ per annum”. It does not say why it was necessary for such well-paid officials to consider the request.

The report claims that 11% of the requests covered by the study were refused on grounds of cost, but that if reading, consultation and drafting time could have been included, a further 4% would have been excluded. Outside central government, this figure would be nearer 10%.

Overall the research appears a useful contribution to the debate about the cost of FOI, but as always it suffers from flaws in its methodology. This is my initial reaction to a very quick flick through the report on the research, and I’m sure that others will have more considered things to say in due course.

 

March 22, 2012

FOI shorts – The Telegraph, Justice Committee and Human Rights

Filed under: Amendments,Freedom of Information Act,Save FOI Campaign — FOIMan @ 4:24 pm

FOI Man is mentioned in the national press, the Lord GO’D descends upon the Justice Select Committee, and the relationship between FOI and the Human Rights Act is to be examined in the Supreme Court

Pleased to be quoted in a piece in the Telegraph Online (not sure if it will make it to print – we’ll see) which is effectively a follow-up to my Save FOI piece the other week on the NHS pointing out that whilst FOI undoubtedly costs money, it should be seen in perspective against other expenditure being carried out by public bodies. I think this is a really important point, and I hope more journalists, politicians (especially the Justice Select Committee members) and others pick it up. In a week where we’ve seen those on the highest rate of tax get a tax cut, it seems a topical point.

Talking of the Justice Select Committee, it’s been announced today that there will be another oral hearing next Tuesday 27th March. This promises to be quite a blockbuster, featuring Lord Gus O’Donnell, Sue Slipman of the Foundation Trust Network and several other NHS representatives, and Lord Peter Hennessy (who those with a bent for constitutional and modern British history will no doubt have a soft spot for). My prediction (for which I hardly need a crystal ball) is that FOI will receive a good going over next Tuesday. If you want to get a sense of the issues that will come up together with my response to them, you can take a look at:

How the Committee members handle these witnesses will tell us quite a lot about the direction that they are going in. So Tuesday will be another important day for the future of FOI. If you can, watch Parliament TV’s live coverage or follow @SaveFOI on Twitter - we will be live tweeting the whole thing, technical constraints allowing.

The relationship between FOI and the Human Rights Act has been coming under some scrutiny of late. Times journalist Dominic Kennedy has pursued his request to the Charity Commission in relation to George Galloways’s Mariam Appeal to the Court of Appeal, arguing that the refusal of his request under section 32 of the FOI Act breached Article 10 of the European Convention on Human Rights (which HRA brings into UK law). Article 10 is the right to freedom of expression. There has been much debate about the extent to which the right to access information comes within the ECHR and therefore HRA, so this is an important case. The Court of Appeal ruled against Kennedy, but importantly allowed him to appeal to the Supreme Court. The Supreme Court has muddied the waters rather of late with its decision in the Sugar v BBC case where they ruled that Article 10 did not affect the BBC’s refusal to disclose a report which it argued related to its journalistic pursuits (covered by the BBC’s derogation). This appeared to fly in the face of several recent European Court of Human Rights decisions. The story is covered with much greater applomb (and indeed knowledge) by Adam Wagner on the UK Human Rights Blog and you can also read the decision of the Court of Appeal if you want to know more.

Meanwhile, we’re still waiting to hear why the Information Tribunal thinks the NHS Strategic Risk Register should be disclosed. Jill Rutter at the Institute for Government speculates that it might not really be worth the wait. Good job really.

March 21, 2012

FOI: A Civil Servant Writes

Filed under: Freedom of Information Act — FOIMan @ 10:50 pm
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FOI Man brings you a guest post from a civil servant who tells us how FOI is seen inside a central government department

This blog claims to bring you an inside view of the Freedom of Information Act, so I’m always glad to bring you a new perspective on the Act from the people who are subject to it. The people who answer FOI requests aren’t always the FOI Officers – often requests are delegated to staff in departments. This week I’m bringing you a guest post that has been sent to me by a civil servant. For obvious reasons they wish to remain anonymous.

The post-legislative scrutiny of the FOI Act has focused attention recently on the future of FOI. In amongst the arguments, we have heard a fair bit about how the attitude of the civil service is affecting its implementation. As a civil servant myself working in a Whitehall department, I wanted to add my voice to this debate. I’m grateful to FOIMan for giving me the opportunity to guest-post here, but I hope you’ll understand if I remain anonymous – civil servants don’t like the limelight. I should also say that I am only speaking from my own experience in one corner of one department, and wouldn’t dream of trying to generalise any of this across Whitehall as a whole. It goes without saying that these are my own views and nothing to do with my employer.

We have heard from the former head of the civil service, Lord Gus O’Donnell, that he feels FOI has had a ‘chilling effect’ on policy making. He’s the latest in a long line of former top mandarins to say similar things. However, this attitude is not confined to those in charge. I would guess that many of my colleagues would say they have similar reservations.

Let me say that I’m right behind FOI. I think it’s vital for us all to be able to ask questions of those running the country on our behalf, and for those questions to be answered. It’s part of a modern democracy; we have the freedom to choose our leaders and part of that is that they are accountable to us. Freedom of speech includes the freedom to ask questions.

Unfortunately on the face of it some of my colleagues don’t seem to agree. They curse FOI, they grumble about having to deal with it, and think it’s a waste of time and effort. Why are people asking for this? What on earth can they possibly want it for? All they’re going to do is use it to cause trouble for us, to make us look bad.

I think this attitude is misplaced. I can recall few, if any, FOI responses in my small corner of the Whitehall world that have led to us looking bad, or any type of genuine scandal along the lines of MPs’ expenses. Mostly, our requests come from members of the public wanting information to help them challenge their local council. We admit to ourselves that councils sometimes get it wrong, and that it would be great if they did it right. So why aren’t we behind the use of FOI as a tool to help achieve that?

We are a helpful department – even before FOI we were, and still are, generally willing to give people what they want just for the asking. I routinely get surprised members of the public on the phone amazed that they actually got through to a person who knew something, rather than a call centre. And we send out a lot of free literature to people. So why do we get so worked up when a similar request for information is labelled as an FOI?

I think a lot of the problem is the way that FOI is administered, rather than the principle of open access or the Act itself. We have a central team of FOI officers, but they act as a postbox, and advise if you get stuck. The actual business of collating information and responding to requests is down to individual policy teams. Most of the people dealing with FOI are therefore not specialists, and are doing this in addition to many other things, all part of their role. We’ve had some internal training on FOI, and make good use of advice from the departmental intranet, but by and large we’re on our own. Trying to navigate your way through exemptions, public interest tests and deadlines can feel like a minefield if you’re not sure of yourself. There’s also a complicated system for logging and monitoring requests, and for clearing draft responses. No wonder we get frustrated.

The preparation we were given in the run-up to the introduction of FOI in 2005 also did not inspire us to believe in the brave new world that was on the way. I distinctly remember the training being along the lines of putting the fear of GO’D into us if we didn’t comply with all of these new processes and requirements (please excuse the civil service humour there). It wasn’t sold as a chance to fundamentally change the way we worked, to engage better with our stakeholders, to improve our image, and so on. Most of our preparation focused on making sure our records were in order, including getting rid of all those useless emails we no longer needed (and before you all start writing stories about ‘civil servants deliberately delete data to avoid FOI’ I’m only talking about good housekeeping here. No-one needs 314 emails telling them that the weekly briefing will be held at 12 and to bring your own biscuits).

I don’t think we help ourselves sometimes, though. There are plenty of exemptions available to us to protect what really can’t be disclosed, but I also don’t think we make enough use of the cost limit and the exemptions for vexatious and repeated requests. And we could pro-actively publish a lot more – although we are getting a lot better at that. Resources play a part here – digitising the records of our most frequently requested material so it can be put on our website is a huge job, and not that high up on anyone’s priority list.

I have to say that although the Constitution Unit didn’t find much evidence of a chilling effect on policy making, on a day-to-day level I fear it may be having an impact. Routinely people half-joke about not writing things down ‘in case it’s FOI-d’.’

But if we are sure of our work, and our thinking and policies, then what is the problem with recording that and letting others see it? Maybe in one sense it’s time to go back to the old school, the pre-email days of memos written dispassionately with an eye to posterity and the 25-year review of the files, carefully drafted and weighing up both positive and negative. When, unlike with email, it wasn’t practical to cc everyone in and communicate your every thought, because the typing pool’s time was precious. Only what was important got recorded.

Recently I have spent some time digging through old files trying to trace the evolution of a policy. The files were incomplete – nothing to do with FOI, as it pre-dated that by about 20 years, but because people hadn’t been good at record keeping. If that is compounded by the irrational fear of disclosure leading to things not being written down, then we will lose an awful lot of detailed and important knowledge. In turn, this means future civil servants will have to keep reinventing the wheel as they won’t be able to look back on previous work and get a complete picture.

But maybe it’s not as bad as I fear. In spite of all the grumbling, we still accept that FOI is here to stay and do our best to comply. We still all start with the assumption that we’re going to disclose as much as we can, and don’t go looking for excuses not to.

So maybe all the grumbling is just the traditional civil servant’s way of letting off steam. Maybe, as younger officials come through the ranks and the dinosaurs die off, FOI will become embedded in our culture and be something that just happens. We can but hope.

March 6, 2012

Prime Minister comes out against FOI

Filed under: Freedom of Information Act,Open Data,Save FOI Campaign — FOIMan @ 8:11 pm

FOI Man puts his head in his hands over Prime Minister David Cameron’s latest comments on FOI.

Earlier today the Minister for the Cabinet Office, Francis Maude was once again calling for more transparency in a talk to delegates at the Information Commissioner’s Data Protection Officers Conference. He gave the usual speech about the value of transparency, good for the economy, how it got governments “out of their comfort zones”. Yada yada yada.

As usual, there was no mention of FOI. It always seems odd to me that with the Cabinet Office embracing transparency quite so warmly, there is little mention at any time of the piece of legislation that has arguably done most to facilitate Government openness.

Also today, you may have spotted that the Government’s favourite Think Tank, Policy Exchange, published a report on transparency and open data. But once again, very little mention of FOI.

And now we know why. Because right at the top of Government, the man in charge thinks we’ve got it all wrong (the relevant bit is about 5 minutes from the end). FOI isn’t about what we want to know about. “Real freedom of information,” says David Cameron, “is the money that goes in and the results that come out”. We’re looking “through the wrong end of the telescope” apparently, wanting all this information about the process of governing and making decisions. And it’s “furring up the arteries” of Government.

The Government’s transparency agenda is great. I’m certainly not going to complain about it, and I’d encourage FOI Officers everywhere to see if they can get involved with it. But how the Prime Minister described FOI is exactly why we should have the general right of access (as it’s called) under FOI. We no longer live in a society where people are satisfied with being told “here’s what we the people running the country are prepared to give you – now go away and amuse yourselves with your iphone gadgets and wotnot while we get on with the important work”. Transparency is not enough if it means being grateful for what we’re given. True transparency allows individuals to interrogate their Government and other public bodies.

Some people think, I’m sure, that I’m making too much of all this FOI stuff. But it’s important. Let me explain why.

FOI is a way for individual people to take part in politics. Every election in recent history has prompted a debate about how people can be more involved in democracy, how can we get more people interested? How can we get people voting? Yet right here we have a mechanism which is used by real people – individuals (who in fact make most of the FOI requests, whatever some would like to suggest about the media and business) – who are engaging directly with public bodies to find out what they want to know. And what happens? There’s a post-legislative scrutiny and public bodies and politicians queue up to say that their interest in public life is too expensive and inconvenient.

It’s not just about individual people being able to ask questions and get answers, though. It’s about providing a further check and balance on those in power. Put simply, many eyes are better than few.

And some public bodies really do benefit from that extra scrutiny. Take the Greater London Authority, where I used to work. The GLA, as many of you will know, is the home of the Mayor of London. There has only been a Mayor, and a GLA, for the last 12 years – the whole thing was a creation of the Labour Government. The Mayor is supposed to be held to account by the London Assembly, a group of 25 elected members. But in effect, the Assembly has always had limited power to rein in the Mayor, not least because of its party politics. In that vacuum of accountability, FOI played an unintended, but essential role in keeping the Mayor and his appointees in check. They didn’t like it (either of the administrations), but it worked. They knew they were being watched, and when they did stupid or controversial things, FOI meant that people could find out about it. And with more councils moving to directly elected Mayors, that’s a lesson that others should learn from.

That experience confirmed me in the view that FOI can be, and should be, a powerful tool in governance of the public sector. What I find sad about the comments from David Cameron today, and those of his predecessor Tony Blair, not to mention Gus O’Donnell and the many council leaders who have attacked FOI, is that if they got behind the legislation, insisted that the public sector had to accept it and adapt to embed it in its processes, then it really could work very well. Public bodies would be more efficient because the information would flow inside them more effectively. There would be less security breaches and leaks because public bodies would be able to focus their attention on the most sensitive data. People really would start to have more trust in government at all levels because public bodies treated them with respect by answering their questions without grumbling.

But these benefits will never be fully garnered. Too many politicians and public servants have a blind spot about FOI. David Cameron, elsewhere in his session with the Liaison Committee, talked about the importance of accountability of public bodies to individuals – schools to parents, hospitals to patients and so on. Yet he can’t see that FOI offers that, and that by attacking it, he is, in effect, contradicting himself. I’ve seen the same thing happen with perfectly reasonable colleagues. They believe in public service and being accountable. But they get an FOI request to deal with and they start frothing at the mouth and panicking about how to answer it. Even when the answer is perfectly straightforward and the actions taken that are the subject of the request are utterly reasonable.

So I fear that even if our Save FOI campaign works, and we avoid the Act being watered down, FOI will continue to be an add-on in most public servants’ eyes. We FOI Officers will struggle on in the face of begrudging compliance from colleagues. We’ll have to defend something that we shouldn’t have to defend because our so-called leaders refuse to accept the will of Parliament and make it clear that answering questions is an integral part of providing a public service.

March 2, 2012

Is FOI costing the NHS?

Filed under: Freedom of Information Act,Save FOI Campaign — FOIMan @ 2:15 pm

I’ve written a new post for the Save FOI campaign website looking at claims that NHS bodies are spending “millions on FOI instead of patients”.

February 28, 2012

Post-Legislative Scrutiny – some brief observations

Filed under: Amendments,Freedom of Information Act,Save FOI Campaign — FOIMan @ 10:47 pm

FOI Man comments on his morning at the FOI Post-Legislative Scrutiny

This morning I attended the latest session of the Post-Legislative Scrutiny being carried out by the Justice Select Committee. I was live tweeting the whole session, and became so accomplished that I was told afterwards that my Tweets were beating the live feed from the Committee Room to the Internet by several seconds! There were a few points I wanted to pick up on.

The first half of the session was given over to higher education, which as regular readers will know, is an area close to my heart as it keeps me in gainful employment. Despite this, you will also know that I have had my disagreements with the higher education establishment of late due to their attempts to introduce an exemption that will, in my view, be of little use, and their regular suggestions that they shouldn’t really be subject to the Act at all.

Well there was little to indicate that they had had a change of heart. The three witnesses, Professor Ian Diamond, representing UUK, Professor Trevor McMillan, the 1994 Group, and Dr Rodney Eastwood of the Russell Group, were generally negative about the impact of FOI. They did concede that it had prompted improvements in records management, but otherwise they felt it hadn’t helped. Universities were already open they maintained, and in fact FOI impacted negatively on their attempts to develop a more open culture.

What was interesting was that yet again, they were seemingly unable to provide any evidence of their claims. Several times the MPs asked them for evidence, and each time the witnesses responded that they were unable to provide it. Could they demonstrate that research was moving abroad because of FOI? No. Could they show that universities were being forced to disclose research data? No, because there hadn’t been many requests (a point that I made here some weeks ago). Could they provide evidence of the sort of data that it might be necessary to protect? No (Sir Alan Beith, the Committee Chairman, appeared to express some exasperation at this point).

It was left to Committee Members to throw them a line. Elfyn Lloyd of Plaid Cymru pointed to evidence from the University of London that it only received 14% public funding (interestingly, the Russell Group representative, Dr Rodney Eastwood, appeared unable to give a figure when asked about the proportion of public funding for higher education institutions – you have to ask whether they had gone to any trouble to prepare for the hearing at all). At some point I’d like to investigate the figures being presented as publicly funded. I’d hazard a guess that they exclude existing university infrastructure (much of which will have been publicly funded); tuition fees (which arguably just move funding from the general public to a specific subset of the public); and research funding from public bodies.

They did at least rule out charging bona fide requesters for requests. Whatever that might mean.

In the second half of the Committee hearing, we heard from the media, in the form of David Higgerson, representing the Newspaper Society, Martin Rosenbaum of the BBC (though attending in his own capacity), Doug Wills, of the Independent and the Evening Standard, and David Hencke, representing the National Union of Journalists. Unsurprisingly perhaps, they were all supportive of FOI. They were critical of public bodies for not answering requests quickly enough, and for using exemptions inappropriately.

But they were able to demonstrate how important FOI is for public debate. David Hencke gave the excellent recent example of the exposure of the Head of the Student Loans Company’s tax arrangements, which has prompted a debate about public sector tax arrangements. It was noted that the savings to the Government from ensuring that taxes were paid were almost certainly greater than the cost of answering the FOI requests.

The journalists were asked if they should pay for their use of FOI as commercial organisations. Unsurprisingly they weren’t keen. David Hencke very forcefully made the point that we have all paid for FOI through our taxes already; if you start charging specific groups, you are in effect making them pay twice. Personally I have to say that moves towards charging specific groups would be a nightmare – for one thing, if public authorities think that journalists hide their identities now, what do they think will happen if journalists get charged every time they admit who they are? Sir Alan, possibly partially in jest, asked whether media organisations should be subject to FOI. Again, they weren’t keen, but you can read a tongue in cheek account of what that would mean in one of my previous posts.

So overall, an interesting morning. Higher education didn’t appear to do itself any favours. But the Committee’s line of questioning didn’t give anything away as to where it is going. Changes to charging arrangements for FOI seem to be very much on the table still, and there are still at least four more hearings. It will be some time before we get the final report of the Committee, so don’t hold your breath. But all the way through you’ll be able to read the latest here and on the Save FOI website.

You can read my live tweets from the Committee on the @saveFOI Twitter feed, and you can listen to the Committee hearing as well on the Parliament website.

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