FOI Man considers the changes that could be made to make FOI in the UK even better.
Last week I wrote that I was sceptical of the need for significant reform of the Freedom of Information Act. Although it isn’t perfect, it has been largely effective, and in my opinion the most significant problems with the legislation are about attitudes to it. Neither the scepticism of some within the public sector, nor the so-called abuse of the Act by some users of the legislation, can be tackled through major amendment in my view.
Some of the most significant issues are about implementation, not the drafting of legislation. Ten years of FOI has not improved the management of information across the public sector. Individual organisations have implemented better systems, but the overall picture is still not great. We still struggle to collate information that is requested in a range of circumstances. It is possible for authorities to procure IT solutions that make it more, not less, difficult to answer requests. That needs to change.
Changing that also depends on resources, as always. Not a great time to be saying it, of course, but it remains true. The Government needs to abandon the idea that transparency is free. Changing the culture of all public bodies costs money. Not vast amounts of money. But to get the full benefit that the Government talks about, investment is necessary.
The Information Commissioner in particular needs to be better resourced. The Commissioner is the key to making FOI work. The last two years have seen improvements in the speed of decisions from the Commissioner’s Office, but that needs to be maintained. Give the Commissioner more resource and he will be able to do more to challenge public authorities to improve their FOI performance.
But in addition to addressing these issues, there are some tweaks that could be made to make the legislation work better, and perhaps give a nudge to existing attitudes.
Let’s have new limits for consideration of public interest and internal reviews. It’s something that critics of FOI have been calling for for some time. We all know we should try to get them out sooner but give us a clear unambiguous deadline and we’ll make more effort, let’s face it. But of course, where there are delays, it’s rarely the FOI Officers that cause them, so…
Introduce statutory publication of FOI statistics on compliance with deadlines. That way it will be really obvious which authorities are dealing with FOI properly and which aren’t.
Clear and serious sanctions for persistent non-compliance. We all know that there are sometimes good reasons for delays. I’d be nervous of suggesting a sanction for individual delays because of this. But there needs to be some serious consequence that FOI Officers can point to when persuading colleagues – and particularly senior colleagues – to provide information within compliant timescales. Perhaps this could be linked to authorities’ reporting of their compliance (as with the Commissioner’s current approach of naming and shaming certain authorities).
Extend the limit for bringing a case under s.77. The Climate Change Unit case at the University of East Anglia and last week’s stories about Michael Gove’s Department for Education have highlighted this section of the Act. It does seem ridiculous that a case must be brought within 6 months when often it won’t even be clear that an offence has been committed at that stage. This is the kind of thing that brings the Act and the public sector attitude to it into disrepute.
Compulsory disclosure logs. Why not? The Protection of Freedoms Bill (s.98, para 4) proposes them for Datasets, but why limit it to a specific form of information? At the very least there could be a statutory requirement to publish a summary report of requests received and responses, but I see very few reasons not to publish all information disclosed (perhaps with limits for technical feasibility).
Quote FOI in requests. I have mixed feelings about this. On the one hand, I can understand why this wasn’t originally a requirement. The right to information shouldn’t be dependent on arcane knowledge of the law. However, on the other, I have seen how much confusion it causes – on both sides of the fence. Most requesters now quote the Act in any case, and the vast majority of people know about FOI now. This simple move would improve the accuracy and consistency of reporting, help FOI Officers to better target their training, and take away the suspicion that some people have that authorities deliberately label requests as FOI unnecessarily (even though I’ve never quite understood what advantage that’s supposed to give us).
Review how copyright applies to FOI disclosures. It may be that no change is necessary, but we all know that some authorities struggle with this, and others may well use it as an excuse not to disclose information in certain circumstances. More certainty in this area would certainly help.
Get rid of the requirement for Publication Schemes. It was an idea that was old fashioned before the Act was passed. Get shot. In its place, a requirement for the Information Commissioner to publish lists of information which should be published as a minimum and which formats should be used.
All of these would help in making FOI more effective. But they’re not essential. The most important thing is that those who use the Act, and those who have to comply with it, continue to try to make it work as best they can.
PS – I should add that the busy beavers over at WhatDoTheyKnow.com have produced a list of changes that they would like to see made to the Act. Pleased to see that we agree on many of them!
Look at how many FOI enforcement notices have been published – the ICO does not need more powers, they need to find the really recalcitrant authorities, and take proper enforcement action. What incentive do the others have if the worst offenders get no more than bad PR?
I have two suggestions for improvement in FoI law.
The first is that organisations where a majority of funding comes from the taxpayer (council or income, VAT etc.) should be liable. The existing measures and the newer proposed ones targeting PFI initiatives etc. don’t do this. For instance, I live in a charity run residential care home which is funded almost exclusively by the taxpayer through the fees for residents’ care and accommodation, which Social Services pay. I think I should be able to apply for information on how this charity or my home is run under FoI in these circumstances; particularly as this provision is increasingly covering for closure of (FoI liable) local authority homes.
The second is the possibility of some degree of self-funding for the ICO by “perpetrating” authorities. When I worked at the Environment Agency, they had a policy (at least in theory) of “polluter pays” i.e. through licensing and enforcement any body that polluted the environment paid for restitution, either physical restitution of the land / river / whatever or as punishment. I would advocate for some scheme whereby the worst offending authorities (Cabinet, MoJ etc.) should have to pay the ICO where they have been found to be at fault. I don’t think the current sparsely used system meets what I mean here. I don’t think completely the other way – e.g. an authority misses its 20 day deadline by one day in one request only – should be liable to a fine. But there should be a working system such that the ICO should have a significant portion of its funding from public authorities who flout the Act. That way the authorities needing the most of ICO’s enforcment and education actions pay the most. Whilst it still ultimately comes from the public purse, I think this would be a more equitable and pro-active system. (Though it is imperative the ICO remain as an entirely external regulator, we do NOT want to go down the road of the PCC!)
Just my 2p
Scrapping the Ministerial Veto should be the main priority.