On Friday, the Deputy Prime Minister, Nick Clegg, gave a speech on civil liberties which included significant proposals on reform of FOI. The Ministry of Justice simultaneously published more details on their website. One of the most widely expected, but still important, announcements concerned adding to the list of bodies currently covered by FOI.
The Association of Chief Police Officers (ACPO), the higher education admissions service (UCAS) and the Financial Ombudsman service had already been consulted on becoming FOIable (to coin a word), and the necessary statutory instrument will be drawn up in short order. A much longer list of public authorities will now be consulted on joining this far from select band. In addition, bodies jointly funded by public authorities will no longer be able to escape the widening bounds of the Act.
So what is the justification for bodies becoming subject to FOI? It is common for people to say that if bodies receive public funding, they should be open to public scrutiny. Many, if not all, of the bodies proposed for inclusion will fall into this category.
So should it be a two-way street? What if bodies lose public funding? Does that mean that they should be removed from FOI?
Higher education is an example. And to some, quite a persuasive one. Even before the recent cuts, some leading figures in universities were pointing out that most of their funding does not come from the Government. The Registrar of the University of Warwick, speaking on Radio 4’s You and Your’s in October 2010, pointed out that only 25% of that university’s funding came from the public purse (and this is not an unusual figure). How much greater the argument for removing universities from FOI when many will soon receive much less, especially those which do not offer science courses.
The Government would probably argue that despite a reduction in public money, higher education institutions will still receive some government funding. And they have been very careful with their language in making these latest announcements. Mr Clegg’s words on the subject were:
“if an organisation’s behaviour and decisions have clear consequences for the public good, people must be able to see right into the heart of them.”
And the MOJ announcement talks about “public bodies which perform functions of a public nature”. Given this, I think it’s highly unlikely that the Government will seriously consider removing universities and other higher education institutions from FOI.
That said, with a Government keen to move many public functions outside of the public purse and into the ‘Big Society’, I wonder if we will hear more calls for FOI reform in the other direction.
I can see some logic to removing bodies no longer in receipt of public funding from the scope of FOI, but public funding is not the only factor. Money isn’t everything – there are bodies that have a role in deciding what goes in the newspapers we read, and the films we watch that are currently not accountable to the public.
Some bodies not currently subject to FOI should be accountable to the public because they perform a public regulatory function e.g. PhonepayPlus Limited (regulator for premium rate charged telecommunications services). Other bodies should be accountable to the public because they control key national infrastructure e.g. BT, National Grid or because they control access to a profession e.g. Bar Council.
As to the specific example of universities, funding may have been reduced in recent years but the land, buildings and equipment have been paid for out of public funds over many years. In addition, universities benefit from the fact that students receive student loans from public funds to enable them to attend. Finally, their degree awarding powers come ultimately from the state.
I find all this very ironic as in my experience the Ministry of Justice are the worst offenders at responding to FoI requests – they always, wrongly, hide behind s32 and data protection principles when I try to get public domain information (which I can get elsewhere anyway). It’s a farce.
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