FOI Man considers what he would change about the FOI Act – and struggles.
Recently I was asked what my FOI wishlist was. If I could make any change to FOI what would it be?
And I struggled. Despite ten years (in one way or another) working in this area, and almost a year of blogging about it, I found myself thrashing wildly about and failing to come up with something convincing or worthwhile. I wondered why that was.
After a week or so, I think I know why I found this question so difficult. The truth is that I’m not particularly convinced of the need for massive change to the FOI Act.
When I look back through the last year’s posts, it becomes clear to me what my view on this is. The problems that do exist with FOI are all to do with attitudes to the legislation and the openness agenda. Very few are to do with the legislation itself.
On the inside of the public sector, the problems as I see them are a continued cynicism from some at the highest level, and a failure to understand the benefits that greater openness will bring. On the outside, the issue is irresponsible use of FOI – the vexatious requesters, the people who see FOI as a handy method of beating up public officials that for whatever reason they despise, the ones who fire off huge numbers of requests without any consideration of the public money that will have to be spent. These attitudes are the biggest threat to FOI.
The legislation itself is not perfect – nothing is. But it pretty much does what it says on the tin, to borrow a phrase from commercial marketing. It has freed up public sector information to a massive degree within a very short period. It’s easy to focus on the things that aren’t quite right or could be better, and there’s nothing wrong with that. But we ought to remember that the majority of requests for information are fully met. When complaints are made to the Commissioner or the Tribunal, those bodies take a much more pro-openness approach than anyone dared hope before 2005. They have set a high bar and public bodies are, by and large, learning to reach it and sometimes even exceed it.
It’s worth remembering what an ambitious target the FOI Act set. Not only was it aiming to produce a massive culture change at the heart of Government, it was also asking thousands of other public bodies, right down to your local chemist, GP and school, to embrace that change. Bodies that most people hadn’t even realised WERE public bodies. The fact that most of the time people DO get information when they ask for it means that FOI is working.
The picture in the average public sector office right now is not what it was seven, or even five years, ago. Not only FOI Officers but also other public servants are casually familiar with the requirements of FOI. It is still scary for them, but it is no longer shocking.
The key, in my view, is gradual, but constant change. The current Government has so far made it very clear that it wants more transparency in the public sector. Its recent consultation paper on open government and the FOI provisions in the Protection of Freedoms Bill both make broadly sensible proposals to enhance the FOI Act, especially in relation to publication of datasets (as long as we can get better definition of what a dataset is, of course, but that’s another post). I’d encourage anyone reading this post to make sure that they respond to the consultation.
The priority for me is protecting the rights that we do have (and I say ‘we’ deliberately – many public employees have used FOI outside of work). I have to say that many of the suggestions for reform of FOI that I hear – and even some that I’ve thought about – are, when it comes down to it, about restricting these rights. Whether it’s charging for requests, placing a limit on requests, or whatever it is, they’re all about cutting down on FOI requests. We have to question our motives for wanting to restrict a right this hardly won.
In my view, this Government should focus on making very clear that it supports FOI, and specifically the right to make FOI requests. It should lead from the front and keep publishing more information. It should firmly refuse any suggestions from senior public officials or politicians to water down FOI. In the meantime, the Information Commissioner’s Office and the Ministry of Justice should find better ways to provide support to public bodies in meeting their obligations – the ICO can’t always rise above the fray. And they should do more to encourage responsible use of these rights by those making FOI requests.
We need to keep progress going, but let’s not lose the chance to continue winning over influential critics. Resist more restrictions certainly – backwards is not the right direction. But we need to be careful not to destroy a growing acceptance and even, possibly, nascent enthusiasm to find new more transparent ways of working by only noticing the weaknesses and pushing too hard.
In a forthcoming post, I will talk about the ‘tweaks’ that I think could be made to the FOI Act without damaging the rights we have.
Some of the WhatDoTheyKnow volunteers have compiled a list of suggested improvements, any feedback, suggestions or criticism gratefully received!
The biggest tweak I want is that a FoI request is not one unless it self-identifies as such. I think if I use the Data Protection Act I have to say so. I can’t see why the same should not be true for FoI.
The problem as I see it is the request that is sent to an arbitrary person who does not have the background to recognise it for what it is. This ends up getting everyone in the wrong frame of mind; the FoI officials are way behind the 8-ball when the finally get the request, while the requester has had a frustrating period either getting no response or getting the request turned down for invalid reasons.
It would also be good if both Acts used the same period for response (oh and the IRs as well, please).
I’d like to see a) more private companies doing public business made subject to the Act, and b) the concept of a vexatious *requester*. Having received 78 requests this year from the same person, I had to do a lot more work to declare the *requests* vexatious than would have been necessary if I’d been able to declare *him* vexatious.