FOI Man scouts out the battle lines ahead of a major battle for the future of FOI.
The week before Christmas the Justice Select Committee called for evidence for its post-legislative scrutiny of the Freedom of Information Act. At the same time, the Ministry of Justice’s memorandum to the committee was published – all 133 pages of it – that will inform the inquiry. I’m sure you all had better things to do over the last few weeks, so I’ve read it for you. (The BBC’s Martin Rosenbaum also blogged about this memorandum just before Christmas, but hopefully the below fleshes out some of his observations at the time).
The memorandum is very important for the future of FOI. I’ve said before that 2012 will be a very important year for the legislation. It’s probably not an overstatement to say that the next few months will decide the future of FOI. And this post-legislative scrutiny will be the key battleground.
There have already been hints as to the direction that the Government would like to take FOI, but the memorandum fleshes these out. We now know what the Government considers the committee should be focussing on. I’m going to summarise these below, and will follow up with more detailed comment on some key aspects over the next couple of weeks.
- Scope of the Act – the MoJ wants the committee to look at who is covered by the Act, and is concerned that this isn’t always clear; it also seems uncomfortable with the complexity involved in adding new bodies.
- Vexatious requests – MoJ notes that section 14 of the Act isn’t regularly used by public authorities, and worries that this may be due to the lack of definition of ‘vexatious’.
- Exemptions – although the general view (largely based on a survey of practitioners) is that they provide appropriate levels of protection, it may not be a surprise (given recent comments from the departing head of the Civil Service) to hear that there are concerns in government about protecting the convention of Cabinet confidentiality.
- Big – and accelerating – rises in the volume of requests being received; MoJ can’t understand why use of exemptions to withhold information is rising in central government but declining in local government (answers on a postcard, please).
- Delays in considering the public interest and internal reviews should be examined; but MoJ are pretty satisfied with the timeliness of responses to requests in general.
- MoJ think that compliance with the Act is generally good across the public sector, but are already conducting a review with the ICO of the 6 month limitation on bringing s.77 charges.
- Publication schemes could be for the chop; the memorandum says that “technological advances since the enactment of FOIA might have rendered publication schemes somewhat obsolete” (para 170).
- The big issue that comes up time and again in the report and is highlighted in the conclusion is cost limits; this is by far the most likely change that will result from all this discussion. The memorandum suggests lowering the cost limit and/or including reading, consideration and redaction time in the calculation of cost. In other words, we’re back to the Blair government’s proposals of 2006/07. But Tony didn’t have an economic crisis to point to in support of change.
- So much for the principle of applicant and purpose-blind processing of requests – the memorandum highlights concerns over media and commercial use of FOI.
- The committee is also invited to examine claims of a ‘chilling effect’ on policy making – but MoJ says the evidence is ‘mixed’.
Most of the commentary in the memorandum focuses on central and local government – higher education, for instance, isn’t mentioned once as far as I can see – although MoJ claims to have consulted FOI Officers from across the public sector. The results of this survey are summarised in a report annexed to the memorandum, and I’ll be looking at what my fellow FOI Officers told MoJ in my next post. In the meantime, if you want to hear more warlike discussion of 2012 and FOI, do have a read of Tim Turner’s latest blog post – and take heed.
Again, and unsurprisingly, central government excels itself in operating in a bubble and looking after itself. What differentiates the cabinet from other core decision making groups outside of government (besides the obvious organisation). Exiting exemptions cover that and the introduction of a cabinet class based exemption would be, as Maurice Frankel once describe, a ‘retrograde’ step for FOI.
Other observations…
1. The schedule has limitations in scope and bureaucracy, but also some benefits. The EIR has allowed, by virtue of its different qualifying criteria for inclusion, water companies to escape the remit. Intended by government? Perhaps, Intended by EIR, I expect probably not. A schedule AND other criteria ala EIR would certainly broaden the scope and allow some of these quangos that receive tax payer cash to ‘gift’ to some public authorities for projects a higher level of scrutiny.
2. Vexatious requests. The government has not understood this at all. The FOI ‘allows’ life long campaigners to exploit FOI when all other regulatory paths have closed. FOI is a playground for curtain twitching complainants. Having spent literally dozens of hours dealing with someone who has embarked on a quest for ‘the truth’, when this trust is nothing but a conspiracy theory does noting for the credibility of FOI. The appropriate limit doesnt touch on back office consideration, complex and overlapping correspondence. Search and retrieval costs simply dont do it. Something needs to be done for this very small number of ‘idiots’ that are ruining it for the majority.
3. Funding. Here we have the main crux. Having seen a 30% (ish) increase year on year and a cut in resources I pity FOI staff. The FOI is seen as a cinderella service and secondary to ‘real’ services. Is it welcomed, hell no. We all saw the writing on the wall after DCA (as was) published their cost calculations based on Frontier Economics quick surveys, and these contrasted starkly with UCL’s much higher cost calculations based on a more thorough academic exercise. What did govt decide to do…. award the lower amount? No, just tell us that it was included in the government grant. The new burden doctrine funding was not transparent. Bad start Tony.
4. If only they’d listened to us all telling them that publication schemes were a bit of a waste of time. Web sites were about in 2005, or did I miss something?
Leadership…
Central government hypocrisy astounds me – Uncle Eric uses the COINs database as an example of transparency, all he would ave to do is search on WDTK to see how strongly govt tried to resist disclosure – with reasonings verging on the pathetic. Own goal Uncle Eric. Michael Mills, again at FOI live recalled the successes of FOI, whilst his government were again seeking class exemption of cabinet minutes. They must think we are fickle.
Fund foi and make businesses pay for the information. as a tax payer id rather see ‘my money’ spent on social services and education than increasing the profits of a company….
Journalists, that is a difficult one. yes foi has become the lazy journo’s charter and fishing exercises are common…. but on balance id rather see 100 hooks pick up 1 big fish than none at all.
I’d just like to mention that prior to the election the Conservatives employed someone whose job was to make hundreds (probably thousands, if you add them all up) of FOI requests to public sector organisations in order to gather data to generate negative news stories about them (if the information requested did not fit their public sector bashing agenda, obviously it was not used).
We still receive requests from Tory MPs, far far more than any other party, even though they are in government!
If the Conservatives try to reduce FOI in any way, that is hypocritical in the extreme, and I’d like to hope that journalists would pick up on this point.
“Chilling effect” on policy makes me laugh. What has really happened is that authorities now realise they need to justify decisions, which can only be a good thing for policy making.
The cost limit should be increased. Public information does not belong to the state and should not be held back on cost grounds. If it’s there, find it, chuck it out in the open.