Tag Archive for Campaign for FOI

Right Old Pickles – Charging for FOI

Like many with an interest in FOI, I’ve been following the story over the last week of Hampshire County Council and their decision to lobby for a charge to be brought in for FOI requests. Last month I blogged about a similar call from the Metropolitan Police and commented that it was a debate worth having.

HCC claimed that FOI cost them £346,000 during 2009/10, much of which was spent responding to requests from journalists. “Why should taxpayers pay for newspapers to benefit?” asked Councillor Colin Davidovitz.

Last week, the Communities and Local Government Secretary, Eric Pickles, made it quite clear that he disagreed with such proposals. He is quoted as saying “If councillors and council officers are to be held to account, the press and public need access to the information that will enable them to do it… Greater local accountability is essential to accompany the greater powers and freedoms that the new government is giving to local government.”

Despite my previous post on the subject, I remain sceptical about charging for FOI requests. Apart from anything else, the figures bandied around when discussing this subject are notoriously unreliable. Hampshire were quite open about their calculations in reaching the quoted figure (for which they deserve credit), but they don’t really stand up to scrutiny. It appears that it assumes that every request received during 2009/10 cost the maximum £450 to comply with, and then adds an extra sum on top of that. Of course, many requests are relatively easy to answer, and don’t cost anywhere near that.

Another reason for my scepticism is that cost is a very easy way to attack any public service, and in this case you can’t help but feel that inconvenience (political and otherwise) might be a major motivator. Especially as whenever these stories are brought up, it is always journalists who are given as the prime example. I’ve always tended to feel that it is a good thing if journalists use the Act – they are most likely to do something useful with what they are given, and get it out to a wider public.

(Mind you, I sympathise with one of my readers who suggests that journalists should have to publish a log of requests they’ve made that they never write about – it’s very frustrating when you’ve spent a long time preparing material and then it remains unused in a hack’s inbox.  This especially happens of course when the material shows the authority in a good light).

Another reason for being cautious about the figures quoted for the ‘cost’ of FOI is that they rarely take into account the savings that undoubtedly result from FOI. In my experience requests do from time-to-time highlight expenditure that is unnecessary. It’s impossible to know, but I’m sure that the fear of FOI (especially post MP’s expenses) prevents abuse of finances and focusses the minds of those in charge of spending in many situations. We can’t provide hard figures for all of these savings, but I suspect they are significant, and they’re usually completely ignored by those citing ‘the cost of FOI’.

So I find myself on the same side as Mr Pickles on this (not a position I gladly take up, I have to say). That said, I still think there’s a need for an open debate about the resource taken up by FOI and how it can best be balanced against the impending cuts that all public services are facing.

Mr Pickles suggests that councils can cut down on FOI requests by publishing more data. Like many FOI Officers and other public officials, I’m sceptical about this. Many requests are for very specific information that would be unlikely to appear in generic datasets. Experience shows that the more information you publish, the more requests you receive for information drilling down even further. There are even websites now that encourage and facilitate this. So, publishing more data is unlikely to reduce the cost of FOI significantly (though it’s undoubtedly a good thing to do). Followers of my Twitter account (@foimanuk) may also have noticed that I’m rather sceptical about the Government’s ‘Transparency’ agenda (in that it appears to consist of announcements about not-very-much-at-all).

Even the Campaign for FOI is not entirely against charging for FOI requests. Maurice Frankel of CFOI is quoted in Portsmouth’s The News as saying “We have no real objection to straightforward commercial requests carrying a charge.” Mind you, this goes completely against current government policy, which is to encourage the disclosure to and re-use of data by business, so there probably isn’t much scope there for reform.

A straightforward charge for FOI requests is probably too blunt an instrument to use to manage their flow, and is unlikely to be implemented in the current political climate. But there is still a need for everyone with an interest in FOI to debate the options on how we can better do this. Should we charge for certain types of request? Should the fees regulations be adjusted to cover more activities? Politicians developing FOI policy need to consider the impact on public authorities as well as the desire (which most of us share) to deliver greater openness.

What Do I Know? A Postscript

Well, this blog has come of age this week. The Campaign for FOI described my last post as “Interesting and provocative”. And it certainly has provoked more comment than anything I’ve previously written.

Before addressing the most controversial issue raised in the comments, I just want to highlight some great advice that WhatDoTheyKnow have given to FOI Officers if they want to follow my suggestion and encourage their requesters to submit requests through WDTK (to facilitate its use as a Disclosure Log):

  • The simplest method is to link to the WDTK site – you can link directly to the part of the site for your organisation – WDTK have no problem with you doing this and you don’t have to let them know you are doing it
  • I would suggest that if you’re going to do this effectively, you should at the very least provide instructions on your website to potential requesters explaining how they can make their request through WDTK alongside your direct contact details; it’s up to you how far you promote this as a method of making requests (ie is it your preferred method or just one of several?)
  • Alex from WDTK has suggested that “If an authority wants to go a bit further, e.g. by having all their requests on the site or wanting a branded request service, then they should talk to us in the first instance to discuss their requirements.”

So there you go, those are your options if you want to try this out.

The most controversial of the points I raised related to the suggestion that WDTK advised requesters on how to avoid providing their name when making requests. I’ve got to say that at this stage I’m unapologetic about this point (though if I’m persuaded otherwise I may post on this topic again). My reasons for this are:

  • It’s there in black and white at section 8 – a request is only valid if it “states the name of the applicant”; the Information Commissioner also takes this view and explains why in his guidance (CFOI disagree with the Commissioner on his view)
  • There’s good reason – much as you as a requester may not like it (especially if you are on the fringes of acceptability when it comes to your dealings with the authority), if we don’t have a name, it is difficult to identify requesters that are making repeat or vexatious requests, or to apply the fees regulations where costs could be aggregated
  • It costs money to answer requests; arguably we should not be spending this money on requests that are not valid, or can be refused for other reasons. We have a duty not just to those who use FOI but also to other taxpayers.

To me, it always comes back to the Act itself. Someone commented that ‘vexatious’ is “redundant and subjective”. It’s not. A vexatious request is defined in the Act and in numerous ICO and Tribunal decisions now. The ICO’s guidance is clear on when it can be applied. We are not talking about vague concepts here, but about specific behaviour which goes beyond what public officials should be expected to put up with. In 6 years, I’ve only used section 14 once, and this was for an individual who had written well over 100 times (not all FOIs) in a year, and had made threats of physical violence to a politician at the authority. But to apply it depends on being able to demonstrate who is making the requests in the first place.

I completely accept that some people might have a reason for remaining anonymous (CFOI cited an example where someone lost their job as a result of making a request). And ultimately, who’s going to know if you do use a (subtle) pseudonym? But I stick by my view that in general, if you’re making a request you should follow the rules just as you expect a public authority to do.

In passing, I should recommend a blog posting from a barrister on WDTK’s liability if they publish documents containing libellous material. This wasn’t an issue discussed in my post, but is certainly of interest.

Thanks for your continued support – nearly 1400 of you have read the blog at some point in the last 6 weeks, and whether I agree with you or not, its also great to receive your comments. Do continue to spread the word – if you have access to other forums or blogs, please do mention this blog if they touch on subjects I’ve discussed. More next week.