Journalist David Higgerson highlighted a case yesterday where the Department for Transport (DfT) had refused a request for detailed information about overcrowding on trains. The exemption applied was s.43 of the FOI Act, which can be used to protect information which would, or would be likely to, prejudice commercial interests.
First off, let’s give credit where its due – DfT should be congratulated on their openness in publishing all their responses to FOI requests online routinely. This probably wouldn’t have come to light if they didn’t do that. Not many public bodies (not even my own) take that approach. And I’d also say that whilst it’s not perfect in its wording, generally speaking, the response is actually pretty detailed and helpful notwithstanding the decision not to disclose all of the information.
But David draws attention to a serious issue. The key reason given by DfT was that the Train Operating Companies (TOCs) had refused permission for details of passenger numbers to be disclosed. DfT are putting together a new dataset which relies on the cooperation of the TOCs, so they were concerned that if they disclosed such data, the TOCs might not help with the new project.
This highlights a key problem for public bodies answering FOI requests. All information we hold is subject to FOI, but not all of it was created by us. In my experience, one of the most common reasons why exemptions are even considered is to avoid offending third parties. And sometimes third parties can be pretty aggressive in making clear that they don’t want the information that they supplied to be disclosed. Often, they just have no understanding of what FOI means for public bodies, even though they are usually informed in advance about the possibility of disclosure, and we try to explain the situation again when requests come in.
Public authorities need to get better at standing up to third parties. In my experience, some are too inclined to just accept the third party’s view that information should be withheld. Government departments in my experience are particularly prone to this. We have to remember that it is our decision in the end, and not the third party’s.
If the Government is serious about openness, it really needs to tackle the attitudes of the organisations that it does business with, especially amongst those private companies that provide services to the public. If they can’t be made to co-operate, they should be at least threatened with being brought under the auspices of FOI. Then they’d understand the situation much more clearly.
The most powerful third parties even attempt (and sometimes succeed) to change the law to avoid their information being disclosed. A few years ago, MPs fed up with their correspondence to local authorities being disclosed in response to FOI requests tried to enact an amendment to the legislation to specifically exempt any correspondence from MPs. Oh, and while they were at it, they tried to sneak in an exemption for both Houses of Parliament. Eventually that proposal was defeated, but only because once it had passed the Commons, their Lordships were too embarrassed to support it any further.
Yesterday, by Statutory Order (following the passing of the Constitutional Reform and Governance Act by the last Government), the FOI Act was amended to strengthen the exemption for Communications with the Royal Household (s.37). From now on, public authorities will be able to (and will no doubt be leant on to) use an absolute exemption (ie with no public interest test) to withhold correspondence between the Monarch, the Heir and the second in line to the throne and themselves. So in future nobody will be able to find out if the Prince of Wales is seeking to influence planning decisions or the design of hospitals. This only came about, I suspect, because some public bodies felt that there was a public interest in disclosing such correspondence in the past, and pointed out that in this circumstance, they had to disclose the correspondence. That won’t have been happily received.
Some third parties can be very powerful indeed.