Archive for Amendments

No FOI in Queen’s Speech?

FOI Man argues that the absence of FOI from the Queen’s Speech does not mean that the Government has abandoned plans to amend FOI significantly, and explains what the process of making the proposed amendments would involve.

Last month some commentators expressed surprise that there was no reference to FOI in the Queen’s speech. Especially as there had been some talk from Government of making changes to FOI following the post-legislative scrutiny last year.

The Government has stated that it wants to do three things of significance:

  1. reduce the acceptable limit above which FOI requests can be refused
  2. include consideration and possibly reading time amongst the factors that can be included when estimating the cost of answering FOI requests
  3. allow aggregation of the cost of multiple FOI requests from the same person or campaign when considering if requests can be refused on cost grounds.

The Campaign for Freedom of Information has drawn attention to the significance of these proposals, and the potential harm they could do to the right to know. But does the fact that there was no reference to them in the Queen’s Speech mean that the Government has given up on them?

Well, the truth is that the trailed changes wouldn’t require primary legislation. All three of the proposals above could be achieved by amending the FOI fees regulations. Specifically, the first proposal would require an amendment to regulation 3, the second to regulation 4, and the last one to regulation – you guessed it – 5. In the case of the last one, all that would be required would be for the sub-clause which refers to requests being “the same or similar” to be removed. But the effect of that would be dramatic, in that it could potentially stop journalists or even whole media organisations (being legal persons) from making more than one FOI request within a three month period.

So how easy will it be for the Government to make these changes? Well, amending regulations is much easier than amending an Act of Parliament. But depending on the primary legislation affecting them, it can still take some time to achieve any amendment. Some regulations require a vote. That isn’t the case with the fees regulations, which would just be “laid” on the table of both Houses – effectively passed without debate unless someone raises an objection (which given the quantity of secondary legislation that is passed each year rarely happens).

That said, there are still a number of hoops that the Ministry of Justice, as the relevant Government department, would have to leap through to bring these changes into force. Firstly, as the regulations affect the Data Protection Act as well as the Freedom of Information Act, there is a requirement to consult the Information Commissioner on any new regulations.

Generally these sort of changes would also be subject to some sort of wider consultation. In the old days (ie before the current Government) my understanding is that consultation was more or less mandatory for a change in the law of this type, and it would have to go on for at least 13 weeks. The current Government has dispensed with these requirements though their own Consultation Principles still encourage consultation in most circumstances. However, rather worryingly for FOI campaigners is the exception set out in the Principles which suggests that consultation will not be necessary “where adequate consultation has taken place at an earlier stage”. One wonders if a Government keen to push these changes through might argue that the evidence collected during the Justice Select Committee’s post-legislative scrutiny constituted “adequate consultation…at an earlier stage”.

And there would be precedent for a consultation destroying plans of these sort. The new proposals are exactly the same as those made by Tony Blair’s Government in 2006/07 which ended up being dropped following very negative feedback during the consultation period. Also because the incoming Prime Minister, Gordon Brown, did not wish to be associated with plans to emasculate Freedom of Information. He wasn’t all bad, clearly.

The Government has also established new hoops in the form of their attempts to cut down on red tape. In many cases, a new regulation won’t be approved unless the Department concerned has identified two regulations that can be scrapped. I know – stupid idea – but it might just help delay any proposed amendments to the fees regulations.

So, by my reckoning, if the Government wants to amend the fees regulations, it will need to do the following:

  • draft new regulations
  • consult with the Information Commissioner
  • possibly consult with all of us (but there is the possibility that they’ll justify skipping this because of the post-legislative scrutiny)
  • run the gauntlet of their own Regulatory Clearance Process including a write round of Departments and passing the Regulatory Policy Committee.

My understanding is that the shortest timescale for all of this to take place would be about 13 months, a period which no doubt started when the Government responded to the post-legislative scrutiny last November. So unless we keep a beady eye on the Ministry of Justice over this, we might find that we have new regulations in place by the end of the year.

Alternatively, as the Information Commissioner suggested at a recent City University-hosted event, perhaps they’ll put this on the back burner given that we’re less than 2 years out from the General Election and this might upset the few journalists that are still talking to them after Leveson.

For the time being, who knows? So watch this space as just because the Queen didn’t mention FOI in her shopping list this year, it doesn’t mean that there couldn’t be significant changes just around the corner.

Game, Dataset and Match

FOI Man highlights forthcoming changes to FOI and provides some hints and tips for public authorities on how to deal with them.

Last year, the Protection of Freedoms Act was passed. Amongst the changes it brought in, were a small number of amendments to the Freedom of Information Act.

But we’re still waiting for most, if not all, of those changes to come into force. To bring them into force, the Government has to lay a commencement order before Parliament…and this is yet to happen. It was expected that the commencement order would be laid last month, bringing the changes into force on 1 April. But this has now been delayed, as reported by the Information Commissioner’s Office earlier this month.

The most significant change is the requirement on public authorities to release datasets in a reusable format, and to publish disclosed datasets in their publication schemes. In my latest article for PDP’s Freedom of Information Journal, I’ve written about these requirements and how to comply with them. (And don’t forget also my report on open data work at Southampton University, which contains further tips on managing and publishing open data).

Personally, I don’t think public authorities should worry too much about these changes. There are a few reasons for this. Firstly, as I commented when the Bill was first published, the effect of these changes will be very limited in my view – they change very little. Public authorities already have to provide information in the format requested “so far as reasonably practicable”; I’ve never been convinced by Francis Maude’s claims that public authorities routinely (and deliberately) choose to disclose data in pdf just to frustrate entrepreneurs.

There may be a mad rush of requests for datasets later this summer (if indeed the Government sticks to its latest timetable), and no doubt there will be more impact for some than others. But I don’t anticipate that this is going to cause significant issues overall.

What can public authorities do to prepare? Well, I suggest the following:

  • identify your key datasets – if you regularly get requests for particular data, then you know what is likely to be asked for in future
  • work out what kind of licence you want to apply to these datasets if you disclose them; the easiest thing will be to use the Open Government Licence for information your authority owns the copyright for, but it is likely you will also be able to offer a non-commercial licence (limiting re-use to non-commercial use) or a charged licence (allowing re-use in exchange for a fee)
  • set up a section in your publication scheme for datasets and if you are happy to disclose datasets and make them available for re-use, get them up there on your website for people to use – don’t wait for the requests
  • once you’ve released a dataset and have licensed re-use, you are obliged to make it available in your publication scheme and to keep it up to date.

That last point may sound worryingly like a potentially unmanageable task for some public authorities, but the relevant amendment goes on to say “unless the authority is satisfied that it is not appropriate for the dataset to be published”. “Not appropriate” isn’t defined (as ever), but if it would be expensive to keep the dataset up to date, for instance, that might well be a justifiable reason not to do so.

So the usual advice applies to these changes – don’t panic! But we’ll have to wait and see what the actual impact will be. And indeed when that impact will be felt. At the moment we only have a draft Code of Practice to go on, so hopefully these few thoughts will be useful.

 

 

Could Wikeley make FOI changes less likely?

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.

Debate on future of FOI

FOI Man comments on this week’s Westminster Hall debate on the future of FOI

This week there was a debate on the future of FOI following the post-legislative scrutiny. I have to admit that until it was already upon us, I had been unaware that it was happening. But I clearly wasn’t alone. Four MPs turned up, one of whom was Sir Alan Beith, who chaired the post-legislative scrutiny process, and another of which was the Minister responding for the Government, Helen Grant. So not really a debate so much as a friendly chat over coffee. Hopefully this is not a reflection of the worth MPs attach to FOI. (After all, the FOI debate was being run against a debate on another hot topic on everyone’s minds, reducing the voting age to 16…)

The Minister reiterated Government plans, set out in December in its response to the post-legislative scrutiny, to look at including more activities within the “acceptable limit” that can be used to refuse FOI requests on grounds of cost. She also referred to possible plans to limit “industrial” scale request making. Sir Alan was rightly critical of these proposals. Others have written about the potential impact of these changes, and you can read what the Save FOI Campaign thinks about it on their website.

We’re in the period of the phony war at the moment. The Government is preparing proposals, but we don’t yet know what the detail will be. Any firm proposal will need to be consulted upon before being enacted through amendments to regulations, so we’re a way off any change to the limits on FOI requests yet. This probably explains the low attendance at the Westminster Hall debate, but there’s still some fighting to do to save FOI from potentially damaging reform.

 

Government responds to Justice Select Committee

FOI Man reports on the Government’s response to the Justice Select Committee’s post-legislative scrutiny report.

The Ministry of Justice has published the Government’s response to the Justice Select Committee’s post-legislative scrutiny report on the Freedom of Information Act. You can read the Justice Committee’s report here, and the Government’s response here.

I have commented on the Government’s response on behalf of the Save FOI Campaign. My post on that site summarises the key points of the Government’s response and provides my analysis of what it means for the future of FOI.

Draft Datasets Code of Practice

FOI Man highlights a new draft Code of Practice under section 45 of the Freedom of Information Act.

It’s all go with FOI at the moment. No sooner have we had to wade through the ICO’s Anonymisation Code of Practice than another comes along from the Ministry of Justice – this time a draft Code setting out best practice for meeting the new requirements under FOI relating to datasets.

The draft Code is a supplement to the existing section 45 Code of Practice, setting out best practice for public authorities in complying with FOI. It is required by the amendments made to FOI by the Protection of Freedoms Act (which are not yet in force).

It provides clarification on interpreting the definition of dataset in the amendments, as well as setting out the three licences (developed by The National Archives) that public authorities will be expected to use when licensing re-use of datasets (ie open, non-commercial and charged). What isn’t yet clear is what fees public authorities will be able to charge for re-use. The amendments allow for the Secretary of State for Justice to lay down regulations to allow this, but there is no news yet on if, or when, such regulations will be forthcoming.

It should be stressed that the Code is a draft, and the Government is inviting comments on it via the gov.uk website. So if you’re interested in the open data agenda, or simply want to ensure the Code is clear enough, do go and make your views known.

Justice for FOI

FOI Man greets the Justice Select Committee’s Post-Legislative Scrutiny report with some relief.

This week is a very exciting time for everyone in the UK. It’s finally here, after 7 years, and months of wrangling and concerns over cost. Yes, today the Justice Select Committee has published its report on its post-legislative scrutiny of the FOI Act.

And my first reaction is that I’m relieved. The Committee has rejected the most damaging proposals, and reaffirmed the importance of FOI in enhancing our democracy. They reject charging for FOI requests. They say no to the Lord GO’D’s proposal to give absolute protection to Cabinet papers. They say there is no need for the 20 working day time limit to be extended as ACPO had requested.

House of Commons

House of Commons, home of the Justice Select Committee

What’s more, they’ve recommended some significant tightening up of the Act. Statutory limits of 20 working days for handling internal reviews should be introduced. Extensions to consider the public interest should be similarly restricted (with longer allowed for consultation with third parties). To improve compliance with existing deadlines, the Committee lifts one of my own recommendations – that public bodies should be required to publish data on their compliance with deadlines. They agree with my argument that such publication would allow the public – and the Commissioner – to better scrutinise and compare the performance of public bodies.

One aspect of the Act that has been widely criticised is the treatment of the offence set out at section 77 of the Act of destroying or unlawfully withholding information that has been requested. The MPs agree with the Information Commissioner that this should be made an “either way offence” so that the currently risible time limit for investigation of 6 months would be scrapped. They go further in recommending that the maximum fine for this offence should be increased beyond the existing £5,000 to “send a clear message to public bodies and individuals contemplating criminal action”.

In evidence, I made the point that FOI can only really be effective with senior leadership. I criticised high profile figures who have publicly attacked the Act. The Committee responded to this, and calls for “leadership and focus” by senior officials. It is also, it should be noted, very critical of former Prime Minister Tony Blair and his attitude to their inquiry. He, of course, is the most high profile critic of this legislation – which his own government introduced.

The Committee has largely taken the approach that I have promoted here of “education not legislation” to improve FOI. Controversially perhaps, they have recommended that the cost of handling individual requests should be included in responses, and – rather oddly, I think – that the names of requesters should be included in disclosure logs. The Committee are also supportive of my proposal to introduce a Code of Practice for requesters.

Universities were represented disproportionately in the evidence given by public bodies, and they were handed a dedicated oral hearing. As an FOI Officer in higher education myself, it is with some relief that I greet the Committee’s statement that:

“…universities are an important part of the public realm and we believe that they are generally regarded by the public and by those working in universities as important public institutions. We do not therefore recommend that universities should be removed from the jurisdiction of the Act.”

However, the call of Universities UK and others to amend section 22 of the Act (the exemption for information planned for future publication) to incorporate a Scottish-style research pre-publication exemption did attract the Committee’s sympathies. My views on this have been set out before, but whilst I’m sceptical of the need for such an exemption, I can’t really see much harm resulting from it.

Universities, NHS bodies and others had expressed concern that FOI prevented them from operating on a level playing field with the private sector as the Government increasingly places an emphasis on competition. The Committee hasn’t reached any conclusion on this point, but urges the Government to keep it under review. There is the possibility at some point of an amendment to section 43 of the Act to address this.

The Committee looked at whether private companies should be subject to FOI. They concluded that the use of contractual terms to protect the right of access to information where services had been outsourced seemed to work well, so there is no recommendation to expand FOI in this way.

There is very little in the report that would cause any significant weakening of the Act. We should watch the Government carefully when it responds to the Committee’s suggestion that the “acceptable limit” be reviewed and possibly reduced from the 18 hours of staff time currently allowed to 16 hours. My own feeling is that this would not hugely reduce the number of requests that could be answered, but much depends on the way that the Government chooses to amend the relevant regulations, as the Campaign for FOI has already pointed out.

Many FOI supporters will be a little concerned at the Committee’s comments on the veto. They have chosen to support the veto in principle as a way to counter arguments about “the chilling effect”. Effectively they are saying that civil servants and Ministers need not fear that discussions around policy formulation will be disclosed as they can be protected by the veto if necessary. Some might interpret their conclusions as encouraging a wider use of the veto in future. This, in my view, would be unwelcome and a step backwards.

Overall, the Justice Committee has found that FOI has achieved its principal objectives, and has recognised that the benefits it brings – whilst often not quantifiable – outweigh its costs. Now we must wait and see how the Government will respond to this report. But fundamentally, what’s important now is that public bodies accept that FOI is here to stay.

The SaveFOI Campaign have also commented on the report.

Protection of Freedoms Act – FOI changes

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.

FOI shorts – The Telegraph, Justice Committee and Human Rights

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.

Post-Legislative Scrutiny – some brief observations

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.