5 Conclusions
109. It is questionable whether the 'big-bang' approach
to implementation of the FOI Act was the correct approach given
the numerous concerns expressed during this inquiry and in any
case it has caused significant disquiet amongst implementers.
However, once decided, the onus was on the DCA to ensure that
adequate preparatory measures were put in place.
110. On the general question of the role of the DCA,
there remains a variance between the evidence we have received
and the views expressed by the DCA and the ICO about the division
of responsibility between them. While the two bodies may have
responsibility for overall effective implementation in partnership,
there appears to have been no clear demarcation of responsibilities
between them which could have been understood by those implementing
the Act.
111. Given the limited resources of the ICO, it was
not within its capacity to support implementation across the whole
public sector outside central government. The DCA was the only
department that could (and should) have taken on this role. From
the evidence we received, a significant number of public bodies
do not appear to have felt that an effective co-ordinating body
was in charge of the FOI process. Most worryingly, even where
the DCA had clear responsibility, it appeared incapable of timely
production of necessary guidance and advice—a point made
repeatedly by our witnesses. In our view, the Department did not
provide enough timely advice and guidance, most notably in the
latter stages of the preparations for implementation in 2004.
112. We have received convincing evidence that a
number of publication schemes are un-ambitious and often do not
represent more than a rewording of previously published material.
The publication schemes that have been adopted across all the
bodies covered by the Act should have been properly assessed for
content as well as form and the ICO should have been properly
resourced to carry
out this task. As things stand, the schemes are of questionable
value and the pressure on the planned review process in several
years time will be significant.
113. It is also clear that common guidance for all
sectors would have been helpful much earlier. According to the
evidence we have received, numerous public bodies felt that too
many departments were giving out guidance advice of varying sorts
(and quality). The guidance that was issued was too often related
to central government needs and was not timely. The DCA should
have been more active in co-ordinating all advice.
114. The Lord Chancellor's Advisory Group, was a
good concept which should have helped to avoid some of the problems
that have arisen. It did not meet its ambitious terms of reference
and represented a missed opportunity on the part of the DCA. Of
even greater concern was the high level of staff turnover in the
DCA division responsible for FOI and the resultant loss of continuity.
We were not convinced by the explanations provided by the DCA
witnesses about this matter. To allow significant turnover of
staff in the final months before implementation appears to have
been a misjudgement.
115. Staff turnover may also have been a contributory
factor in another major complaint about the DCA—late decision-making.
This represents a key shortcoming on the Department's part and
is all the more surprising given the very long run-up to implementation
and the Government's decision to implement most of the Act on
a single date. With less than four weeks until implementation,
key areas of detailed guidance on issues such as fees and nominated
persons able to issue exemptions remained unpublished. Furthermore,
the question of whether or not the 20-day deadline for responding
to requests is to be applied without exception remains unresolved.
We believe it is unacceptable that a discussion on the very important
question of whether or not to be flexible in extending the 20
day deadline could be going on in central government departments
as late as October/November 2004 and that other stakeholders were
not consulted about this possibility.
116. It is unclear what level of requests will be
faced by public bodies following full implementation on 1 January
2005: will it be a flood of requests or a trickle? It is reasonable
to suppose that there are some requests waiting in the pipeline,
but only time will tell about the extent of the use of FOI. If
an initial flood of requests leads to an unexpectedly large number
of complaints, we believe that the DCA must ensure that the Information
Commissioner is properly resourced to deal with them. Whether
the system is used a great deal or very little, the law requires
that all areas of the public service covered by the legislation
should be ready on 1 January 2005. We are not confident that adequate
preparations have been made to ensure that this will be achieved.
117. The DCA's failure to provide early guidance
on technical matters and gaps in its leadership on FOI have risked
creating the impression that FOI implementation is another chore
to be undertaken, rather than a catalyst for a cultural shift
to greater openness. It remains to be seen whether the fundamental
cultural change in the provision of information, which the Act
was intended to bring about, will accompany implementation or
will take much longer to happen.
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