Tag Archive for Save FOI Campaign

How safe is FOI?

FOIMan reviews the state of FOI in the UK at the end of the last party conference season before the 2015 General Election.

House of Commons

House of Commons

It seems like only yesterday that I coined the hashtag #saveFOI when, provoked by the launch of the government’s post-legislative scrutiny, it seemed that everybody and their uncle wanted to pile in with their FOI horror stories. And a few months later I was – largely – relieved to find that despite the naysayers, the Justice Select Committee had recommended few changes to the Act. Indeed they had focused on its achievement as “a significant enhancement of our democracy”.

The attacks, of course, have not gone away. Whether it be dragons or criminals attempting to give bananas the slip, some public authorities have been keen to bring FOI into disrepute. Their hope is that these stories will make it politically acceptable for the government to weaken our right to know.

And these are dangerous times for constitutional rights, of which I count FOI as one. We’ve seen that the Conservative Party is keen to dismantle the current human rights infrastructure, apparently because the government hasn’t got its way over one or two decisions made by the European Court of Human Rights. If human rights aren’t safe, it’s a fair question to ask if other rights – less complicated to remove or weaken – will also come under renewed attack. And from whom?

The most pressing threat is the possibility that the government might – as it proposed to do in its response to the post-legislative scrutiny – amend the FOI fees regulations to make it easier to refuse requests. However, a recent interview with the Minister for FOI, Liberal Democrat Simon Hughes, appears to suggest that the threat has been stayed somewhat. Mr Hughes indicated that a consultation on this is likely before the 2015 election, but actual changes were unlikely until after then. It appeared from the interview that the two parties in government were failing even to agree on the content of the consultation. So even that is in doubt.

Another significant threat is the failure to properly fund the Information Commissioner’s Office. As I’ve previously highlighted, Christopher Graham himself has indicated that FOI enforcement is at risk without a new settlement. The ideal solution would be to find a way to independently fund the Commissioner’s work, rather than him having to go cap in hand to a government department that he often has to rule against.

It is entirely possible that a new government next May could find other ways to undermine FOI. As the last party conference season before the general election has come to its conclusion, what can we say about how safe – or otherwise – our right to know will be next year?

First of all, it’s not unreasonable to be sceptical about any of the parties that are likely to form a government next year. At various points they have all exhibited ambiguous attitudes to the legislation, especially when in government. But I do think we can draw some conclusions. Let’s take each of the main parties in turn.

The Labour Party, of course, introduced the Freedom of Information Act whilst in power. But famously the Prime Minister of the time has expressed his regret, believing it (with the ban on fox hunting) to be one of his two worst decisions. It’s been repeated enough now for us not to choke on our tea with the irony. However, the current Shadow Justice Secretary, Sadiq Khan, has made several positive noises about FOI, including vowing that it will be extended to private companies that provide public services – a promise repeated during the Labour Party Conference in September. This doesn’t mean that a Labour government with a healthy majority won’t lose its enthusiasm for the right to know once in power, but at least Mr Khan appears to be proud of his party’s part in the story of FOI rather than considering himself to be a nincompoop.

Simon Hughes’ conference speech this week claimed that the Liberal Democrats were trying to extend FOI now. His speech, as well as the interview with Martin Rosenbaum mentioned above, hints that the junior party in the current coalition has protected FOI from their partners in government. In this context it is worth noting that many observers were surprised at the relatively positive conclusion to the post-legislative scrutiny. It seems plausible that this was as a result of the canny chairmanship of Sir Alan Beith, a Liberal Democrat. My sense is that broadly speaking FOI is safest with Liberal Democrat involvement in government.

What about the Conservatives? They don’t appear to have said much at their conference on the subject. But in the past their leader has expressed his irritation with FOIs “furring up the arteries” of government. His idea of “real FOI” is government deciding what you should be allowed to see. That phrase was echoed last week when the Conservatives talked about “real human rights”. Not all Conservatives are enemies of FOI though. Eric Pickles has criticised local authorities who moan about their FOI obligations. Overall though – and looking back at the evidence given to the post-legislative scrutiny in 2012, and the MPs who appeared most skeptical – I don’t sense much enthusiasm for FOI in the Conservative Party (aside from when they were out of power when they used it enthusiastically, of course).

So there we are. It would appear that FOI would be safest with Labour or the Liberal Democrats (and most safe with both). Of course, we’ll know more when party manifestos are issued early next year. Maybe the Conservatives will prove me wrong by offering to protect and extend FOI in the next Parliament.

Campaign for the Campaign for Freedom of Information

FOI Man calls for anyone who uses FOI, benefits from it, or is interested in transparency to support the Campaign for Freedom of Information

I’ve been a bit quiet blog-wise over the last month, for which I apologise. The reason for this is that thanks to the success of this blog, I have been lucky enough to be offered freelance training work, been invited to speak at conferences, to write for journals, and to join panels at academic events. And May has been flush with all of these opportunities. Together with the day job, this leaves little time for blogging. Things look quieter in June, so you’ll be hearing much more from me this month. I heard that groan from the back and it won’t stop me, I tell you.

But there’s another reason that I’ve been lucky enough to be offered these opportunities. Since 1984 the Campaign for Freedom of Information (CFOI) has been campaigning for FOI – first of all calling for an FOI Act in the first place, and since 2000 keeping an eye on and calling out the Government whenever it has looked like going back on the promise of transparency that FOI made to us. Most recently the Campaign has been drawing attention to the Government’s plans to make it easier for public authorities to refuse requests.

It is at least arguable that we would never have had a Freedom of Information Act under the last government without CFOI. It is certainly the case that the Act was stronger when passed than the Labour Government had intended because of the pressure that CFOI brought to bear on parliamentarians on all sides of both Houses (for evidence of this, look no further than the memoirs of the Minister responsible for the FOI Bill, Jack Straw). Others have pointed out that the conclusion of last year’s post-legislative scrutiny might well have been more negative if it hadn’t been for CFOI Director Maurice Frankel’s forensic dismantling of arguments made by FOI’s many critics.

Dr Evan Harris, former Liberal Democrat MP and Hacked Off campaigner, has written that CFOI is now struggling for funds. As with all campaign groups and charities, the Campaign is entirely dependent on the goodwill of those who support its aims. Without donations and volunteers it would not be able to do its good work. The trouble is that when there are so many good causes, it is difficult to stand out from the crowd. But there are many of us who owe CFOI our support.

Dr Harris draws attention to the use journalists and newspapers have made of FOI in stories as diverse as MPs’ expenses and the basis of Michael Gove’s more questionable utterances. But in addition to the media, there are many of us who have benefited from CFOI’s work over the last 30 years. I wouldn’t be in the job I’m in, be writing a blog about FOI, or have the opportunities I wrote of above. Many FOI Officers and records managers owe their employment to FOI’s continued existence. Training companies and legal firms make money from FOI. Charities are able to sharpen their campaigns using information obtained through FOI. Businesses use FOI to gain valuable intelligence on public sector contracts. And that’s ignoring the wider benefit to the public of the greater transparency that FOI has brought. And it probably isn’t going too far to argue that none of this would be the case without the Campaign for Freedom of Information.

Last year I worked with fellow FOI Officers and information law experts to establish the Save FOI campaign because I believed that FOI was under threat. The truth is that one of the best ways to save FOI and to keep it strong is to ensure that the dedicated and well informed team at CFOI are able to continue their efforts for years to come. If you’ve ever made an FOI request, been interested in a news story that was based on an FOI request, or just believe that FOI is a good thing, please consider making a donation – however small or large – to the Campaign.

It is easy to do. Earlier today I set up a standing order from my bank account to the Campaign for FOI, so that they will receive a regular monthly donation from me. The Campaign’s bank account details can be found in this form, and you can use these to set up a standing order using your online banking service. Other ways to donate or support the Campaign can be found on their website.

Could Wikeley make FOI changes less likely?

Recent rulings by the Information Tribunal relating to vexatious requests could be a better answer to Government concerns over FOI than changes being mooted by the Ministry of Justice. At a briefing earlier today, Maurice Frankel of the Campaign for Freedom of Information argued that the Government’s proposals would be highly damaging to FOI and what’s more, were no longer necessary.

Maurice highlighted the Government’s intentions set out in the Ministry of Justice’s response to the post-legislative scrutiny carried out by the Justice Select Committee, and recently clarified by one Minister at a poorly attended Parliamentary debate. The key changes being looked at by the Ministry of Justice appear to be:

  • reducing the “acceptable limit” set out in fees regulations above which FOI requests can be refused under section 12 of the Act;
  • allowing public authorities to include consideration time in the assessment of this limit;
  • allowing public authorities to aggregate the costs of complying with unrelated requests from the same person or group received within a 3 month period (currently they can only do this if someone makes a series of requests for similar information);
  • charging for appeals to the Information Tribunal (First Tier and Upper).

Maurice described these proposals as the most damaging yet. Some of them are, however, very familiar. The inclusion of consideration time and aggregation proposals was consulted on in 2006/7 under Tony Blair, and dropped at the instigation of his successor. Could it be that civil servants have merely dusted off the old proposals to save themselves some time?

In any case, it may be that these proposals are now redundant. The Government’s main aim in introducing these changes appears to be to address situations in which requests are expensive to answer, but can’t, for technical reasons, be refused under the “acceptable limit” rules. But here’s where recent decisions of the Tribunal – at both levels – come in.

Last year I wrote about an important decision of the First Tier Tribunal which suggested that public authorities could refuse FOI requests under section 14 of the Act – the section dealing with vexatious requests – in a much wider set of circumstances than the Information Commissioner’s guidance had led us to believe. In particular, the Tribunal ruling offered the tantalising (for FOI Officers at least) possibility that requests could be refused under section 14 if they imposed a significant burden on the authority, even if there was no other reason to suggest the requests were vexatious.

Since then, a number of First Tier Tribunals have taken a similar line. However, strictly, decisions of the Information Commissioner or of the First Tier Tribunal cannot set precedents in the common law of England and Wales. This means that in theory at least, there is no legal reason why their decisions have to be consistent. But rulings of the Upper Tribunal and higher courts do set precedent. And we now have such a ruling in respect of vexatious requests.

The new ruling, from Judge Wikeley, appears to support the more common sense approach that the other Tribunals have moved towards. It doesn’t entirely dismiss the Information Commissioner’s established checklist approach, describing it as a useful guide, but favours a more “holistic” consideration of whether a request is vexatious or not.

“The presence, or absence, of a particular feature is not determinative. So one particular factor alone, present to a marked degree, may make a request vexatious even if no other factors are present. The question ultimately is this – is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?” [2012] UKUT 440 AAC, para. 43

(For a more in depth analysis of Judge Wikeley’s decision, I recommend Robin Hopkin’s post on the Panopticon Blog.)

The problem with the Government’s proposals is that they threaten to reduce the effectiveness of FOI for everyone. The inclusion of consideration time is likely to significantly reduce the amount of information that can be asked for, no matter what the public interest in disclosure. Similarly, if a journalist has to make a series of follow-up requests to get to the bottom of a legitimate story, he or she will soon use up the time allowed if the new aggregation rule is brought in. Indeed, they may prevent any of their colleagues being able to ask questions of the same authority within three months.

But the Tribunals’ approach offers a more nuanced answer to the problem of the excessive burden imposed by some FOI requests. It allows public authorities to refuse requests that are expensive to answer or are manifestly unreasonable, whilst encouraging them to consider carefully the wider context of the requests. That approach seems much more in line with the value that the Ministry of Justice claims to recognise in FOI, whilst meeting their stated concerns.

Let’s hope that someone at the Ministry of Justice reads about these decisions before it’s too late.

Debate on future of FOI

FOI Man comments on this week’s Westminster Hall debate on the future of FOI

This week there was a debate on the future of FOI following the post-legislative scrutiny. I have to admit that until it was already upon us, I had been unaware that it was happening. But I clearly wasn’t alone. Four MPs turned up, one of whom was Sir Alan Beith, who chaired the post-legislative scrutiny process, and another of which was the Minister responding for the Government, Helen Grant. So not really a debate so much as a friendly chat over coffee. Hopefully this is not a reflection of the worth MPs attach to FOI. (After all, the FOI debate was being run against a debate on another hot topic on everyone’s minds, reducing the voting age to 16…)

The Minister reiterated Government plans, set out in December in its response to the post-legislative scrutiny, to look at including more activities within the “acceptable limit” that can be used to refuse FOI requests on grounds of cost. She also referred to possible plans to limit “industrial” scale request making. Sir Alan was rightly critical of these proposals. Others have written about the potential impact of these changes, and you can read what the Save FOI Campaign thinks about it on their website.

We’re in the period of the phony war at the moment. The Government is preparing proposals, but we don’t yet know what the detail will be. Any firm proposal will need to be consulted upon before being enacted through amendments to regulations, so we’re a way off any change to the limits on FOI requests yet. This probably explains the low attendance at the Westminster Hall debate, but there’s still some fighting to do to save FOI from potentially damaging reform.

 

Government responds to Justice Select Committee

FOI Man reports on the Government’s response to the Justice Select Committee’s post-legislative scrutiny report.

The Ministry of Justice has published the Government’s response to the Justice Select Committee’s post-legislative scrutiny report on the Freedom of Information Act. You can read the Justice Committee’s report here, and the Government’s response here.

I have commented on the Government’s response on behalf of the Save FOI Campaign. My post on that site summarises the key points of the Government’s response and provides my analysis of what it means for the future of FOI.