Comments on Justice Select Committee Freedom of Information Report


Monday, July 30th, 2012. 1:42am


Justice Select Committee Post-Legislative Scrutiny of FOI Report:

One bit of good news hidden amongst last week’s Olympic furore was the report of the House of Commons’ Justice Select Committee on their work on the post-legislative scrutiny of the Freedom of Information Act. (Report: Paged HTML, PDF).

None of the feared potential restrictions of Freedom of Information which had raised their heads as the review was being carried out materialised in the recommendations. Time limits on internal reviews and public interest tests, were recommended by the committee. This was something many of those seeking to strengthen the law, including the WhatDoTheyKnow team, had high up on their wish-lists.

I have a few brief comments on various aspects of the generally very positive report:

Publishing Statistics

Paragraph 109 of the report states:

We recommend that all public bodies subject to the Act should be required to publish data on the timeliness of their response to freedom of information requests.

Currently only central government bodies have to produce FOI statistics; I wonder if the committee realised that this recommendation would essentially extend the requirement for such record keeping and publication to all bodies. This sounds to me like a recommendation which risks creating a lot of bureaucracy and costs, with little benefit and is rather out of kilter with the rest of the report.

Cost Limits

I don’t think the suggested reduction by a couple of hours (at £25/hour) would amount to a significant hit to the utility of FOI. The discussion of cost limits misses the question of what work ought be eligible to be counted towards the cost limit. The question of if redaction time ought be included wasn’t addressed. Currently redaction time doesn’t count towards the FOI cost limit, I’m surprised letting it count wasn’t considered, and wasn’t recommended, this would I think have been a more effective way of reducing excessive and unreasonable costs associated with some FOI requests. Perhaps offering a reduction in the cost limits was thought to be a more easily comprehensible “bone” to throw to those seeking to constrain Freedom of Information in the UK.

Names of Requestors on Disclosure Logs

One suggestion made is that public bodies ought publish the names of those who request information along with the information released to them. It will be interesting to see how the potential conflict between the Data Protection Act and this provision is resolved. Already via WhatDoTheyKnow some people knowingly put their names in the public domain online, but decide later they don’t want to be associated with their request, and ask for it to be removed.

There may be unintended consequences here if the tension isn’t robustly resolved. A anononmised disclosure log requires no maintenance, but one with names included, which people can request their names be removed from, needs people to consider and act on such name removal requests.

Universities

I thought it excellent the suggestion from universities that they ought be excluded from FOI was dismissed.

See also my article: Cambridge Colleges Seek FOI Exemption

Vexatious/Frivolous

I thought it was great to see the committee saying in paragraph 135

Such requests can usually be dealt with relatively easily, making it hard to justify a change in the law

This is what the WhatDoTheyKnow representation, which I helped work on, said.

Proactive Publication

Greater proactive publication gets a cursory mention in the conclusions; it’s a pity the potential of more proactive publication to efficiently achieve the aims of the Freedom of Information Act wasn’t taken up more strongly by the committee.

Making Freedom of Information Law Apply to More Organisations

Extending coverage to more bodies is discussed in the report in relation to private contractors; however the broader issue is rather missed. (WhatDoTheyKnow lists many public bodies which are not formally subject to FOI).

Ironic Secrecy

There have been a few ironic elements to this process. Given the subject matter was Freedom of Information the committee’s rather strict rules on not publishing submissions before they published them on their own website felt slightly jarring to me.

A few days before the committee’s report was published they, as is usual practice, sent out embargoed copies, including late submitted evidence from ex Prime Minister Tony Blair. While I complied with the embargo request due to the manner in which I received the report (as a member of the WhatDoTheyKnow team) I abhor not sharing information which ought be made openly available.

I’d rather Parliament and other arms of the state simply published things on their websites when they wanted to release them rather than giving advanced copies to selected people. One problem with the pre-distribution approach is often media reports become available, and people begin commenting on something, before they have had a chance to access and analyse the raw material. This results in response and debate being based on the story, the spin, rather than the substance. There is also the problem that the established, or favoured, elements of the media get an unfair advantage over their competition.

This article is written in an entirely personal capacity, and not as a WhatDoTheyKnow volunteer.

2 comments/updates on “Comments on Justice Select Committee Freedom of Information Report

  1. Richard Taylor Article author

    My response to the committee’s call for evidence was published on p444 of the compendium of evidence.

    It stated:

    1. I have made over 150 Freedom of Information requests. All my requests have been made via the website WhatDoTheyKnow.com, to ensure the request, correspondence and response are made public.
    2. While this is a personal submission I am also one of the volunteers who administer the website WhatDoTheyKnow.com.That role includes advising requesters, and helping deal with the large number of requests to take material down from the website which WhatDoTheyKnow.com receives.
    3. The committee have requested views on the question of: Does the Freedom of Information Act work effectively? To an extent the act clearly does work; it has created a right to information which was not present before and has empowered those seeking information from public bodies.
    4. Information released via Freedom of Information is now regularly raised and discussed during my local council’s “area committees” where the public are invited to speak during “open forum” sessions. Information cited at a recent meeting included minutes from other public sector bodies, material obtained by the public from the council, and data, such as speeding survey results, relevant to decisions before councillors.
    5. Media reports are now routinely based on, or supported by, material released under the Act and MP’s contributions in Parliament are often based on information from such disclosures. Freedom of Information has become a core part of our democratic system, I do not think it would function as effectively without it. The impact of the Act is seen at all levels of government.
    6. The Act has not though been as effective as it could have been in changing the culture of public bodies towards routinely operating in a more open and transparent manner.

    7. The Act only enables access to information held by a public body, there is no provision requiring the consideration of routine proactive publication of the information following a request.
    8. For example I have obtained some board papers for my local Probation Trust via a Freedom of Information request but to seek to prompt proactive ongoing publication of future board papers I am having to pursue other routes, where unlike when using the Freedom of Information route, I am merely lobbying rather than exercising a legal right.
    9. While one might have expected the Freedom of Information Act to prompt public bodies to proactively publish as much information as possible to avoid the time and expense involved in responding to requests for information, this does not appear to have happened on a large scale.
    10. The committee asked: What are the strengths and weaknesses of the Freedom of Information Act? One of the biggest strengths of the UK Act is that there is no application fee and the definition of a request is not overly prescriptive. This means the benefits of the Act are very accessible; there is no need for people to have knowledge of the act to use it.
    11. The existence of a powerful, independent, Information Commissioner, capable of ordering public bodies to release information is potentially a major strength of the act, however the impact is reduced by the slow speed at which the commissioner operates in respect of Freedom of Information casework.
    12. Many bodies with significant public roles are not covered by the act. Locally to me for example the body which is responsible for my local river (the Cam Conservators) and the local City Centre Management organisation (Love Cambridge) are outside the current scope of the act. The latter has responsibility for elements of city centre signage, and is even,
    through its role in relation to a proposed Business Improvement District” considering a role in collecting, and spending taxes.
    13. More broadly organisations such as Housing Associations, which many people see as having a public role, are not covered by the act.
    14. Hopefully the Protections of Freedoms Bill will see more of the many organisations owned by multiple public bodies brought under the Act.
    15. I would like to see more use of the provisions for adding additional bodies to the act.
    16. The provisions relating to datasets in the Protection of Freedom bill require public bodies to consider proactive publication of up-to-date copies of requested datasets. I would like to see this concept extended more broadly to other classes of information accessible via Freedom of Information. eg. Papers for a particular meeting. The omission of such a provision is in my view a weakness of the current Act.
    17. The Freedom of Information Act did not overturn prior legislation which prevents the release of information. Provisions in the act for the review and repeal of such legislation (s75) do not appear to have been used.
    18. I have been seeking to get more information released by my local Coroners service (information on upcoming inquests) and my local courts. Here too I have had to resort to traditional lobbying as I generally do not have the Freedom of Information Act on my side when I am pushing for more openness and transparency.
    19. Not even major public bodies such as central government departments, police forces, and major councils, are required by the Act to maintain comprehensive public disclosure logs. Large amounts of information released via the Act is provided to the requestor only and not the public at large. While some requesters, eg, journalists and campaign groups do disseminate their findings, they rarely enable the public to obtain the actual information released.
    20. Requests need to be made using a requestor’s real name, especially if an appeal to the Information Commissioner or beyond is to be permitted. This limits the use of the Act which can be made by those seeking to whistleblow on corrupt practices, crime, etc. from within public bodies.
    21. While the act required the adoption of publication schemes by public bodies and the Information Commissioner expended significant efforts enforcing this aspect of the Act publication schemes did not generally lead to the proactive, ongoing, publication of significant amounts of information held by public bodies.
    22. On the question of: Is the Freedom of Information Act operating in the way that it was intended to? I think the answer is yes, to some extent, but the anticipated culture change still has a long way to go. Sometimes bodies can appear to be evasive when dealing with requests for information.
    23. I recently made a request for information to the Metropolitan Police for information on authorisations for deployment of baton rounds in public order and protest situations. Rather than conducting a search for the information in the office handling applications for such authorisations they rejected the request on cost grounds saying they would need to search all the individual boroughs and departments from which applications may have originated.
    24. Other examples of seeking to evade the Act include claims individuals, rather than the organisation, hold the information. Another request I made to the Metropolitan Police was rejected on the basis that the information was held by a senior officer, as an individual, in his Association of Chief Police Officers (ACPO) role rather than his Metropolitan Police role. (This was prior to ACPO being made subject to the Act).
    25. Similarly the University of Cambridge tried to evade a Freedom of Information Act request in respect of papers of its Bursars Committee stating: “The Bursars’ Committee is an inter-Collegiate body, and legally in the nature of an unincorporated association or members’ club”. While the Information commissioner rejected this nonsense on appeal (Decision notice FS50124622). This is an example of the kind of shenanigans faced by those seeking information under the Act.
    26. Often correspondence in relation to a Freedom of Information request is both extensive, and slow often carrying on over many months. It takes a great deal of perseverance to obtain information from some bodies. Not all requesters will persist in arguing their case, and fewer will appeal to the commissioner, or beyond. What is critical is the way requests are handled in the first instance.
    27. One area where the law could be improved, is with the introduction of statutory time limits for conducting internal reviews and public interest tests. At the moment, while the Information Commissioner has issued guidance on these matters they appear to be areas where public bodies can unduly delay responses.
    28. While in principle the provision in the Act requiring the disclosure of information “promptly” is fantastic and potentially powerful, in practice few public authorities appear to take it seriously and the Information Commissioner’s does not appear capable of taking enforcement action on this point.
    29. There are a number of aspects of the operation of the Act which regularly worry, confuse, and perhaps, put off requestors. One is the fees and costs regime. The vast majority of requests are dealt with free of charge, yet public bodies tend to draw attention to the fees and costs provisions when acknowledging requests. More emphasis ought be put on the fact that usually there is no cost involved.
    30. Copyright claims are often made by public bodies on their responses, even if the information has been generated by the public body itself. This often leads to requestors being unsure about how, if at all, their use of the information released is being restricted. Sometimes, often apparently inappropriately, public bodies refer to the Re-use of Public Sector Information Regulations 2005 which also confuses requesters about what they can do with information they have obtained.
    31. On the subject of using information released via the Act, I would like to see information released from public bodies under the act added to the types of material which can be published without fear of being sued for defamation. I would suggest this ought cover a “fair and accurate report or summary of, copy of or extract from released material. Such a provision would clearly be of value to services such as WhatDoTheyKnow.com. It would also allow campaigners, journalists and others working with such material more freedom from legal threats and uncertainty.
    32. Sometimes a public body accidentally releases information which it would have been able to withhold under one of the Act’s exemptions. Often this takes the form of an ineffectively, or incompletely redacted document. There is currently no provision requiring the body to provide a properly redacted version of the material, which again causes problems for those seeking to reuse the information as the onus for the removal or problematic elements, such as defamatory or personal information, falls on the person wishing to re-use the information.

    February 2012

  2. Richard Taylor Article author

    Despite my making my representation by email, the committee sent me a paper copy of the book-sized report:

    Photo of book sized report

    There are links to the report in my article above.

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