Tag Archive for Save FOI Campaign

A warning shot across the bows?

FOI Man considers the immediate impact of the Justice Select Committee’s report on FOI – on the Information Commissioner.

Before taking a break to follow the marvellous Olympic and Paralympic action, I last wrote here about the Justice Select Committee’s post-legislative scrutiny report. We’re still waiting to hear how Government will respond to the Committee’s recommendations, but I thought I’d write about the possible immediate impact of the report.

The headline conclusions have been discussed at some length (for example here by the Save FOI campaign) but what I find most interesting after reading the report more carefully are the messages the Committee appears to be sending to the Information Commissioner and Tribunals.

The Committee hasn’t been overtly critical of the Commissioner and took on board many of the messages Chris Graham put to them in his characteristically robust manner. But if you look closely enough the messages are there.

Notably, there was no recommendation – as some had expected – to make section 35, the exemption covering policy formulation and development, absolute. Whilst the immediate reaction to this of campaigners (including myself) was relief, it is notable that the Committee appears to have agonised at length on the issue of providing a “safe space”. It eventually concluded that it could not justify “any major diminution of the openness created by the Freedom of Information Act”. But it went on to caution:

“we remind everyone involved in both using and determining that space that the Act was intended to protect high-level policy discussions” (paragraph 201)

Who could they possibly be reminding? On the one hand, they were clearly saying to those in Government that they should feel that they could discuss the most sensitive issues without fear of disclosure. Gus, old chap, relax – there is plenty of protection in the Act for your successors to work within.

But the flip side of that is that those “determining” the scope of the safe space should be interpreting it in a way that supports that sense of safety in the Cabinet Office. I sense that at least some of the Committee think the Commissioner (and the Tribunal of course) needs a reminder of this. That perhaps Cabinet papers and NHS risk registers have been a step too far.

And if the Commissioner ignores this friendly advice? Well, the Committee recognises “that the realities of Government mean that the ministerial veto will have to be used from time to time to protect that space.” Back off Graham, or the Government will be at its liberty to flick you the big V.

This isn’t the only area where the Committee appears to be subtly signalling to the Information Commissioner and Tribunals that maybe they’ve been pushing the boundaries of acceptable interpretation of Parliament’s will.

Universities had indicated in their evidence that they were concerned about protection for those carrying out animal research. In their conclusions, the Committee encouraged universities to rely on section 38 (the exemption for health and safety) and stressed that they “expect that the Information Commissioner will recognise legitimate concerns.” (paragraph 222)

Similarly, universities, together with NHS bodies and others, raised concerns about FOI endangering their competitiveness in an environment where they are increasingly competing against private providers. The Committee looked at this and could reach no conclusion as to whether the exemption at s.43 was sufficient to protect public bodies. But they did state explicitly that “there is a strong public interest in competition between public and private sector bodies being conducted on a level playing field to ensure the best outcome for the taxpayer.” (paragraph 231)

It is presumably going to be difficult for the Commissioner and anyone else applying the Act to ignore such strong statements on the practical exercise of exemptions in the Act. Whilst we may have to wait a while to hear what the Government thinks of the Justice Committee’s conclusions on FOI, I wonder if we’ll begin to see their impact on the Commissioner and Tribunals almost immediately.

 

 

Justice for FOI

FOI Man greets the Justice Select Committee’s Post-Legislative Scrutiny report with some relief.

This week is a very exciting time for everyone in the UK. It’s finally here, after 7 years, and months of wrangling and concerns over cost. Yes, today the Justice Select Committee has published its report on its post-legislative scrutiny of the FOI Act.

And my first reaction is that I’m relieved. The Committee has rejected the most damaging proposals, and reaffirmed the importance of FOI in enhancing our democracy. They reject charging for FOI requests. They say no to the Lord GO’D’s proposal to give absolute protection to Cabinet papers. They say there is no need for the 20 working day time limit to be extended as ACPO had requested.

House of Commons

House of Commons, home of the Justice Select Committee

What’s more, they’ve recommended some significant tightening up of the Act. Statutory limits of 20 working days for handling internal reviews should be introduced. Extensions to consider the public interest should be similarly restricted (with longer allowed for consultation with third parties). To improve compliance with existing deadlines, the Committee lifts one of my own recommendations – that public bodies should be required to publish data on their compliance with deadlines. They agree with my argument that such publication would allow the public – and the Commissioner – to better scrutinise and compare the performance of public bodies.

One aspect of the Act that has been widely criticised is the treatment of the offence set out at section 77 of the Act of destroying or unlawfully withholding information that has been requested. The MPs agree with the Information Commissioner that this should be made an “either way offence” so that the currently risible time limit for investigation of 6 months would be scrapped. They go further in recommending that the maximum fine for this offence should be increased beyond the existing £5,000 to “send a clear message to public bodies and individuals contemplating criminal action”.

In evidence, I made the point that FOI can only really be effective with senior leadership. I criticised high profile figures who have publicly attacked the Act. The Committee responded to this, and calls for “leadership and focus” by senior officials. It is also, it should be noted, very critical of former Prime Minister Tony Blair and his attitude to their inquiry. He, of course, is the most high profile critic of this legislation – which his own government introduced.

The Committee has largely taken the approach that I have promoted here of “education not legislation” to improve FOI. Controversially perhaps, they have recommended that the cost of handling individual requests should be included in responses, and – rather oddly, I think – that the names of requesters should be included in disclosure logs. The Committee are also supportive of my proposal to introduce a Code of Practice for requesters.

Universities were represented disproportionately in the evidence given by public bodies, and they were handed a dedicated oral hearing. As an FOI Officer in higher education myself, it is with some relief that I greet the Committee’s statement that:

“…universities are an important part of the public realm and we believe that they are generally regarded by the public and by those working in universities as important public institutions. We do not therefore recommend that universities should be removed from the jurisdiction of the Act.”

However, the call of Universities UK and others to amend section 22 of the Act (the exemption for information planned for future publication) to incorporate a Scottish-style research pre-publication exemption did attract the Committee’s sympathies. My views on this have been set out before, but whilst I’m sceptical of the need for such an exemption, I can’t really see much harm resulting from it.

Universities, NHS bodies and others had expressed concern that FOI prevented them from operating on a level playing field with the private sector as the Government increasingly places an emphasis on competition. The Committee hasn’t reached any conclusion on this point, but urges the Government to keep it under review. There is the possibility at some point of an amendment to section 43 of the Act to address this.

The Committee looked at whether private companies should be subject to FOI. They concluded that the use of contractual terms to protect the right of access to information where services had been outsourced seemed to work well, so there is no recommendation to expand FOI in this way.

There is very little in the report that would cause any significant weakening of the Act. We should watch the Government carefully when it responds to the Committee’s suggestion that the “acceptable limit” be reviewed and possibly reduced from the 18 hours of staff time currently allowed to 16 hours. My own feeling is that this would not hugely reduce the number of requests that could be answered, but much depends on the way that the Government chooses to amend the relevant regulations, as the Campaign for FOI has already pointed out.

Many FOI supporters will be a little concerned at the Committee’s comments on the veto. They have chosen to support the veto in principle as a way to counter arguments about “the chilling effect”. Effectively they are saying that civil servants and Ministers need not fear that discussions around policy formulation will be disclosed as they can be protected by the veto if necessary. Some might interpret their conclusions as encouraging a wider use of the veto in future. This, in my view, would be unwelcome and a step backwards.

Overall, the Justice Committee has found that FOI has achieved its principal objectives, and has recognised that the benefits it brings – whilst often not quantifiable – outweigh its costs. Now we must wait and see how the Government will respond to this report. But fundamentally, what’s important now is that public bodies accept that FOI is here to stay.

The SaveFOI Campaign have also commented on the report.

Arresting figures on the cost of FOI

FOI Man explains why he feels uncomfortable with one police force’s (sort of) transparent approach to FOI.

Avon and Somerset Constabulary, like many other public authorities, have a page on their website for FOI. And it’s full of really useful features like a searchable disclosure log. Fantastic. What ruins it slightly is that the top of the page is taken up by a huge box advertising how much they say answering FOI requests has cost them over the last three years.

The subtext is clear. You naughty little taxpayers should stop bothering us with FOI requests. You’re stopping us from catching murderers and burglars and taking lunch with the Press.

Now some will argue that this is a good idea. People should be made aware of how much FOI costs so that they use it responsibly. There is something in that. But here’s why I think that what Avon & Somerset are doing, and what it represents in terms of the attitude of public bodies, is wrong.

Firstly, as with all these figures that are put out during debates on FOI, the figures themselves are questionable. To be fair to Avon & Somerset, they are open about the methodology they use. They say that they use the formula requests x £30 x 18 hours. What they don’t say is how they arrived at this formula. It’s true that £30 is consistent with the cost calculated by the Ministry of Justice’s research which was published this week. But Avon & Somerset have displayed these figures for months at least judging from FOI requests about the figures. And when someone asked them recently to provide any correspondence relating to how they decided this formula, they responded that they held no information. So it isn’t possible to judge whether their methodology in calculating these figures is sound.

What is clear is that the cost of employing FOI Officers makes up a fairly small proportion of the cost quoted on the main FOI page. FOI requests have elicited a total cost of £69,587 for the 2010/11 financial year for the three FOI Officers employed.

And perhaps the idea of advertising up front the cost of compliance with FOI requests wouldn’t be so bad if the constabulary advertised the cost of other services in similarly large unfriendly numerals. Will people ringing 999 be told how much emergency calls cost to deal with before reaching an operator? I wonder if staff ordering refreshments for meetings are instructed how much the constabulary spent on tea and biscuits the previous year? I’ve got a hunch they’re not. We do know through an FOI request that the Constabulary spent £677,200 in 2010/11 on employing staff on marketing, PR and communications activities (including internet content), because they provided this in answer to an FOI request. But I’m pretty sure it isn’t prominently displayed anywhere on their website (I wonder why?).

The post-legislative scrutiny appears to have unleashed a no-holds barred full-frontal offensive on the right of general access to information. Avon & Somerset are joining the ranks of those whose evidence to the Justice Select Committee paints FOI in the darkest light possible. It’s also in the same tradition as the news stories about “wasteful” and “trivial” FOI requests that turned up in the Press suspiciously close to the announcement of the start of the post-legislative scrutiny in December.

Even I’ve been surprised by the intensity of this. Surely there are other things which offend public authorities or add to their administrative burden? So why does FOI in particular attract such venom from right across the public sector? And shouldn’t we question the fact that public resources are to some extent being used to campaign against a legal requirement?

I’ve always been sceptical about conspiracy theories. I still am. I believe that most, if not all, of the annoyance with FOI is about resources and being able to provide an effective service. Most public officials, and indeed politicians, are not consciously being secretive for the sake of it. Their righteous indignation comes from a sincere belief that FOI is an expensive addition and an obstacle to their core purpose. But their inability to see the bigger picture and understand that there are good reasons for FOI that justify some inconvenience means that less flattering perceptions of them will remain.

Incidentally, another study has been published, this time looking at the cost of FOI in the higher education sector. As with the MoJ report last week, from an academic point of view, all of this data on FOI is very welcome. But it still raises the question in my mind, why are public authorities expending quite so much effort on establishing the costs of FOI in particular? Why not other areas of their work? It leaves me feeling rather uncomfortable.

MoJ Costs Study – third strand of post-legislative scrutiny research

FOI Man reports on the latest research on the cost of answering FOI requests.

The Ministry of Justice says that the average cost of answering FOI requests to central government in staff time is £30 an hour, and that on average each FOI request to central government costs £184 to answer. These are the headline findings of newly published research from Ipsos Mori for the Department. The research took requests made to a range of central government departments in a one week period in late November/early December and tracked their progress by asking staff in those departments to complete sheets saying how much time they had spent on each category of work. The grades of the staff involved were also noted so that figures could be calculated based on the seniority of the staff involved as well as the time spent.

The 8 categories of work used were:

  • administration, including allocation and logging
  • searching for information
  • reading time
  • consideration
  • discussions with other depts in central govt
  • discussions with other bodies outside govt
  • drafting submissions and consultation with Ministers/board members
  • drafting of response (including redaction) and internal sign-off.

Some might raise eyebrows at the decision to double the figures recorded by staff in the study for discussions and consultation “because the majority of time recorded in this column did not appear to account for the time spent on the request by officials in other departments”, ie apparently because the figures weren’t as high as they thought they should be. However, by and large, the time spent on these activities does not form a huge percentage of the time spent on requests according to the report.

The study also looked at the cost of handling requests in 19 non-central government bodies and the cost findings are broadly similar. Rather curiously, they looked at the cost of handling EIR requests separately and concluded that they cost twice as much to answer as FOI requests. Many FOI Officers not involved in the research might feel that finding is questionable.

The report highlights two “expensive” requests. One it claims cost £2,500 and was not yet answered. The description of this request adds that “the majority of the discussion time can be attributed to two officials earning £100,000+ per annum”. It does not say why it was necessary for such well-paid officials to consider the request.

The report claims that 11% of the requests covered by the study were refused on grounds of cost, but that if reading, consultation and drafting time could have been included, a further 4% would have been excluded. Outside central government, this figure would be nearer 10%.

Overall the research appears a useful contribution to the debate about the cost of FOI, but as always it suffers from flaws in its methodology. This is my initial reaction to a very quick flick through the report on the research, and I’m sure that others will have more considered things to say in due course.

 

FOI shorts – The Telegraph, Justice Committee and Human Rights

FOI Man is mentioned in the national press, the Lord GO’D descends upon the Justice Select Committee, and the relationship between FOI and the Human Rights Act is to be examined in the Supreme Court

Pleased to be quoted in a piece in the Telegraph Online (not sure if it will make it to print – we’ll see) which is effectively a follow-up to my Save FOI piece the other week on the NHS pointing out that whilst FOI undoubtedly costs money, it should be seen in perspective against other expenditure being carried out by public bodies. I think this is a really important point, and I hope more journalists, politicians (especially the Justice Select Committee members) and others pick it up. In a week where we’ve seen those on the highest rate of tax get a tax cut, it seems a topical point.

Talking of the Justice Select Committee, it’s been announced today that there will be another oral hearing next Tuesday 27th March. This promises to be quite a blockbuster, featuring Lord Gus O’Donnell, Sue Slipman of the Foundation Trust Network and several other NHS representatives, and Lord Peter Hennessy (who those with a bent for constitutional and modern British history will no doubt have a soft spot for). My prediction (for which I hardly need a crystal ball) is that FOI will receive a good going over next Tuesday. If you want to get a sense of the issues that will come up together with my response to them, you can take a look at:

How the Committee members handle these witnesses will tell us quite a lot about the direction that they are going in. So Tuesday will be another important day for the future of FOI. If you can, watch Parliament TV’s live coverage or follow @SaveFOI on Twitter – we will be live tweeting the whole thing, technical constraints allowing.

The relationship between FOI and the Human Rights Act has been coming under some scrutiny of late. Times journalist Dominic Kennedy has pursued his request to the Charity Commission in relation to George Galloways’s Mariam Appeal to the Court of Appeal, arguing that the refusal of his request under section 32 of the FOI Act breached Article 10 of the European Convention on Human Rights (which HRA brings into UK law). Article 10 is the right to freedom of expression. There has been much debate about the extent to which the right to access information comes within the ECHR and therefore HRA, so this is an important case. The Court of Appeal ruled against Kennedy, but importantly allowed him to appeal to the Supreme Court. The Supreme Court has muddied the waters rather of late with its decision in the Sugar v BBC case where they ruled that Article 10 did not affect the BBC’s refusal to disclose a report which it argued related to its journalistic pursuits (covered by the BBC’s derogation). This appeared to fly in the face of several recent European Court of Human Rights decisions. The story is covered with much greater applomb (and indeed knowledge) by Adam Wagner on the UK Human Rights Blog and you can also read the decision of the Court of Appeal if you want to know more.

Meanwhile, we’re still waiting to hear why the Information Tribunal thinks the NHS Strategic Risk Register should be disclosed. Jill Rutter at the Institute for Government speculates that it might not really be worth the wait. Good job really.