Tag Archive for Amendments

Post-Legislative Scrutiny – some brief observations

FOI Man comments on his morning at the FOI Post-Legislative Scrutiny

This morning I attended the latest session of the Post-Legislative Scrutiny being carried out by the Justice Select Committee. I was live tweeting the whole session, and became so accomplished that I was told afterwards that my Tweets were beating the live feed from the Committee Room to the Internet by several seconds! There were a few points I wanted to pick up on.

The first half of the session was given over to higher education, which as regular readers will know, is an area close to my heart as it keeps me in gainful employment. Despite this, you will also know that I have had my disagreements with the higher education establishment of late due to their attempts to introduce an exemption that will, in my view, be of little use, and their regular suggestions that they shouldn’t really be subject to the Act at all.

Well there was little to indicate that they had had a change of heart. The three witnesses, Professor Ian Diamond, representing UUK, Professor Trevor McMillan, the 1994 Group, and Dr Rodney Eastwood of the Russell Group, were generally negative about the impact of FOI. They did concede that it had prompted improvements in records management, but otherwise they felt it hadn’t helped. Universities were already open they maintained, and in fact FOI impacted negatively on their attempts to develop a more open culture.

What was interesting was that yet again, they were seemingly unable to provide any evidence of their claims. Several times the MPs asked them for evidence, and each time the witnesses responded that they were unable to provide it. Could they demonstrate that research was moving abroad because of FOI? No. Could they show that universities were being forced to disclose research data? No, because there hadn’t been many requests (a point that I made here some weeks ago). Could they provide evidence of the sort of data that it might be necessary to protect? No (Sir Alan Beith, the Committee Chairman, appeared to express some exasperation at this point).

It was left to Committee Members to throw them a line. Elfyn Lloyd of Plaid Cymru pointed to evidence from the University of London that it only received 14% public funding (interestingly, the Russell Group representative, Dr Rodney Eastwood, appeared unable to give a figure when asked about the proportion of public funding for higher education institutions – you have to ask whether they had gone to any trouble to prepare for the hearing at all). At some point I’d like to investigate the figures being presented as publicly funded. I’d hazard a guess that they exclude existing university infrastructure (much of which will have been publicly funded); tuition fees (which arguably just move funding from the general public to a specific subset of the public); and research funding from public bodies.

They did at least rule out charging bona fide requesters for requests. Whatever that might mean.

In the second half of the Committee hearing, we heard from the media, in the form of David Higgerson, representing the Newspaper Society, Martin Rosenbaum of the BBC (though attending in his own capacity), Doug Wills, of the Independent and the Evening Standard, and David Hencke, representing the National Union of Journalists. Unsurprisingly perhaps, they were all supportive of FOI. They were critical of public bodies for not answering requests quickly enough, and for using exemptions inappropriately.

But they were able to demonstrate how important FOI is for public debate. David Hencke gave the excellent recent example of the exposure of the Head of the Student Loans Company’s tax arrangements, which has prompted a debate about public sector tax arrangements. It was noted that the savings to the Government from ensuring that taxes were paid were almost certainly greater than the cost of answering the FOI requests.

The journalists were asked if they should pay for their use of FOI as commercial organisations. Unsurprisingly they weren’t keen. David Hencke very forcefully made the point that we have all paid for FOI through our taxes already; if you start charging specific groups, you are in effect making them pay twice. Personally I have to say that moves towards charging specific groups would be a nightmare – for one thing, if public authorities think that journalists hide their identities now, what do they think will happen if journalists get charged every time they admit who they are? Sir Alan, possibly partially in jest, asked whether media organisations should be subject to FOI. Again, they weren’t keen, but you can read a tongue in cheek account of what that would mean in one of my previous posts.

So overall, an interesting morning. Higher education didn’t appear to do itself any favours. But the Committee’s line of questioning didn’t give anything away as to where it is going. Changes to charging arrangements for FOI seem to be very much on the table still, and there are still at least four more hearings. It will be some time before we get the final report of the Committee, so don’t hold your breath. But all the way through you’ll be able to read the latest here and on the Save FOI website.

You can read my live tweets from the Committee on the @saveFOI Twitter feed, and you can listen to the Committee hearing as well on the Parliament website.

Submissions to the Post-Legislative Scrutiny

FOI Man highlights a useful new resource available via the Save FOI Campaign website

If you want to dip into the submissions made to the Justice Select Committee’s post-legislative scrutiny of FOI, a useful resource has been made available on the Save FOI website. The written evidence was originally published in one, rather overwhelming, pdf document.

If you head over to the Save FOI website, the Resources section now has a page listing all the organisations and individuals who submitted evidence with links to their individual submission.

While you’re there, do please have a read of Tim Turner’s excellent post explaining how changes to FOI could leave local authorities more accountable than central government and the NHS because they will still be subject to the Environmental Information Regulations.

Why 2012 is the year to Save FOI

Today (Monday 20th February), a group of us are formally launching a new campaign. As the title of this post suggests, we are campaigning to #saveFOI.

This week sees the beginning of the long heralded post-legislative scrutiny of FOI promised by the Coalition Government last year. On Tuesday morning, the first witnesses, including the head of the Campaign for Freedom of Information, Maurice Frankel, will be appearing before the Justice Select Committee.

Last week the Committee published the written evidence that it has received. What is striking about this evidence is how many public authorities have called for restrictive amendments to the Freedom of Information Act. Some have called for charging to be introduced. Some have suggested that the cost limit for answering requests should be brought down, so that more demanding requests can be refused. Others have even suggested bringing in whole new exemptions for information that they hold.

This comes hot on the heels of comments from the outgoing Cabinet Secretary Lord Gus O’Donnell who has been openly critical of the Information Commissioner’s decisions in respect of Cabinet minutes. Others will be aware that our former Prime Minister Tony Blair considered himself a “nincompoop” for introducing FOI. There have been plenty of others queuing up in recent months to add their voices of complaint to the chorus of disapproval of this legislation, only 7 years after it came into force.

It is hard to think of another requirement on public bodies that attracts such venom and open hostility. And these views are diametrically opposed to the views of most people outside the public sector who welcome this important tool for holding public authorities to account.

Even some inside Government are suspicious of the motives of the Act’s government critics. The Minister responsible for FOI in the Ministry of Justice, Lord McNally, commented in a recent House of Lords debate that:

“…when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.”

And yesterday, writing in the Observer, the Information Commissioner himself made it quite clear where he stands. He dismissed Lord O’Donnell’s criticisms, and dispensed with suggestions from universities that they need a whole new exemption for research data.

Nevertheless, the mood music suggests that there is a desire to contain this young legislative upstart. Some of us even inside the public sector feel very strongly that to do so would be a backwards step. Yes, some individuals abuse the right to access information. Some requests are expensive to answer. It can feel personal when a request affects your work. But the overall benefits, whilst difficult to quantify in hard numbers, far outweigh the problems. It has forced public authorities to open up in a way that would have been unimaginable a decade ago. It has allowed groups from protesters against library closures to disability rights campaigners to make their case to Government on something approaching an equal footing. It has exposed unfairness and inequality in our country. I believe it is starting to make an impact on the effectiveness and efficiency of some public authorities. In short, it makes the UK a fairer country to live in.

And the UK doesn’t exist in isolation. Countries across the globe are adopting FOI legislation. As Nigeria and the Philippines debate the opening up of their governments, is it right that the UK can be considering reducing the rights of its citizens?

So we are standing up to make the case for FOI this year. And we want as many people as possible to join us. So please take a look at our campaign website and consider how you can help us to #saveFOI.

Post-Legislative Scrutiny – My submission

FOI Man sums up what he told the Justice Select Committee as they prepare to carry out their post-legislative scrutiny.

Tomorrow, Friday 3 February, is the deadline for submissions of evidence to the Justice Select Committee for their post-legislative scrutiny. After days of writing – and rewriting – my despatch, I finally sent it off on Tuesday. Hopefully many of you have written to say how important you think FOI is, and why.

The rules of the Committee mean that I’m not allowed to publish my full statement here without permission – I’ve asked the Clerk of the Committee to allow that. However, in the meantime I can summarise the key points I made. Most of this won’t be a surprise to regular readers.

Fundamentally, I think the FOI Act is a brilliant piece of legislation. It’s introduced a right to know that now seems an important part of our democracy; and by and large I think it balances this right with the need to ensure that public services can be run effectively.

It’s met all of its objectives to some extent or another – the Ministry of Justice had already put forward plenty of evidence of FOI making the public sector more open and transparent; I also pointed out how it was allowing campaign groups to engage better with decision makers. I argued that it was almost certainly improving decision-making; and I put forward a defence against suggestions of a “chilling effect”.

The limits of cultural change within the public sector was one of my key themes. I pointed out that whilst senior figures such as former Prime Ministers and Civil Servants were openly and aggressively attacking the legislation, it was always going to be difficult to win people over. In future these attacks need to be aggressively countered from within Whitehall if FOI is ever going to become embedded in our organisations and its full benefits felt.

And linked to that, we can’t ignore those who make requests irresponsibly. The requesters who submit the same request to hundreds of public bodies; the people using the Act to pursue their personal vendettas; and others who don’t understand that the way they use FOI will affect whether it survives. I’ve proposed a Code of Practice for requesters – an FOI “highway code” to promote good practice amongst those using the Act – rather like my Guide to Making FOI Requests. I’d rather see education than litigation used to manage issues with FOI.

I don’t want to see transparency go backwards in the UK. I’ve called for any changes to be subject to a transparency impact assessment, and I’ve also asked the Committee to bear in mind the commitment the current Government has made to transparent and open public services.

I want to see more proactive disclosure, and public authorities encouraged to introduce Disclosure Logs if they don’t already. But I agree with those who think that Publication Schemes are unnecessary to make this happen. I’ve also suggested statutory reporting on compliance and asking requesters to say when they are making a request under FOI. And I’m very keen to see the limitation on prosecution under s.77 of the Act extended beyond the ridiculous 6 months that it stands at now.

Finally, I’ve argued against changes to the fees regulations. I fear that the changes that some have suggested could limit legitimate and reasonable research, so I hope this won’t be a change put forward by the Committee. If there must be changes, let’s focus them on those who use the Act irresponsibly – I think the restrictions on vexatious requesters are probably adequate as they are, but perhaps they could be clarified and maybe linked to the “Code of Practice” I suggested above.

Fundamentally, now is not the time for change. At this time of economic uncertainty, when Government and public services are making difficult and challenging decisions, the scrutiny that FOI offers is needed more than ever. Let’s hope the Committee’s post-legislative assessment reaches the same conclusion.


Evidence to the Post-Legislative Scrutiny

FOI Man reminds readers of recent blog posts that you might find of use if you are submitting evidence to the Justice Select Committee’s Post-Legislative Scrutiny of FOI

The deadline for submitting evidence to the Justice Select Committee’s Post-Legislative Scrutiny of FOI is this coming Friday, 3 February. If like me, you are spending this weekend preparing your submission to the inquiry, here are a few recent posts from this blog that you might find useful if you’re looking for inspiration. If you’re not, you might find them of interest anyway!

My FOI Wishlist – Part I

My FOI Wishlist – Part II

2012 – The Battle for FOI

What do FOI Officers think about FOI?

Remote Ivory Towers or engaged with the modern world? Universities must decide

Should Cabinet papers remain in the closet

To give and not to count the cost

If you are preparing your submission to the Committee, good luck!