Evidence submitted by Which?
ABOUT WHICH?
1. Which? is an independent, not-for-profit
consumer organisation with around 700,000 members and is the largest
consumer organisation in Europe. We are entirely independent of
government and industry, and are funded through the sale of our
Which? range of consumer magazines and books. Which?
was formerly known as Consumers' Association,
2. In summary, Which? believes the Freedom
of Information Act (FOIA) was long overdue and a welcome step.
But there is an inconsistent approach by public bodies and often
a gap between the letter and the sprit of the FOIA, Leaving us
questioning whether public bodies and the government are serious
about freedom of information. It is really too early to say whether
the FOIA has made a real difference.
WHICH? AND
THE FREEDOM
OF INFORMATION
ACT
3. Which? welcomes the opportunity to
submit evidence to the Select Committee's enquiry into the operation
of the FOIA. Which? campaigned for freedom of information
legislation and established and then funded the Campaign for Freedom
of Information until last year. We were vocal in our criticisms
of some of the limitations within the legislation, but overall,
we're positive about the FOIA and the information people can elicit
from public bodies.
4. Our main criticism of the FOIA is that any
information held by a government department is exempt if it relates
to the development of government policy. This is not the issue
of advice, but the facts and figures used to formulate policy.
There is also an overprotection of commercial interests—the
FOIA tilts towards protecting these even though it's consumers
who bear the brunt of scandals—for example, endowment mis-selling.
5. Freedom of information is a core consumer
principle going to the very heart of the relationship between
a government and its citizens. Access to information is vital
if consumers and organisations representing them are to exercise
their rights fully and take part in constructive and informed
public debate. But also it helps ensure government decisions take
consumer interests into account across a range of markets. The
FOIA should mean consumers are confident that scandals won't be
covered up and ensure vested interests don't influence our right
to know. It also means higher standards and accountability in
government, particularly in the wake of scandals like BSE.
WHICH?'S
EXPERIENCE OF
THE FOIA
6. We've submitted requests both before and after
the FOIA came into operation to local government authorities,
No 10, HM Treasury, DEFRA, Home Office, the Office of Fair Trading
(Or), the Financial Services Authority, the Office of the Deputy
Prime Minister (ODPM), Department of Health (DH) and the MHRA.
7. Prior to the FOIA we had a number of cases
where we were refused access to information held by government
departments and regulators. These refusals included:
(a) HM Treasury and the Financial Services Authority
refused to disclose information relating to negotiations between
life insurance companies and the regulators over the future of
£20-DO billion of surplus assets (orphan assets). These orphan
assets are crucial to the ability of millions of consumers to
save for retirement and pay off their mortgages (see paragraph
x on subsequent requests for this information);
(b) HM Treasury and the Financial Services Authority
refused to disclose information on the mortgage endowments scandal.
Millions of endowment policies are no longer on track to repay
the mortgage yet the regulators refused to disclose the names
of the companies at the centre of the scandal;
(c) Utilities regulators refused to disclose
details of the number of customers disconnected by electricity
companies;
(d) The DTI refused to disclose information on
the number of cheques that go missing in the post;
(e) The DYLA refused to disclose details of its
policy on private parking enforcers.
8. Since the FOIA was implemented, our experience
has generally been that there is a failure to understand the exemption
in relation to public interest even when the interests of consumers
are critically affected.
Restaurant hygiene scores
9. We have campaigned for a number of years for
local councils to publish restaurant hygiene inspection results,
eg on the Internet, to inform consumers about the standard of
food premises before they use them. Consumers tell us they want
to have access to this information. We believe ft will help consumers
to make a more Informed choice about where they choose to eat
out and In turn drive up hygiene standards and lower the Incidence
of food poisoning. The display of recent inspection grades in
Los Angeles County, for Instance, Led researchers from the University
of Maryland to suggest that food-borne Illness visits to Local
hospitals have reduced by 20%.
10. The responses we had from councils when we
requested hygiene Information were Inconsistent. A stark example
of this was a request we made for a report In Which? magazine
In July 2005, Which highlighted the poor hygiene and food safety
controls In food outlets at popular events. We contacted the five
councils responsible for hygiene inspections at the four venues
we had visited. Only one county (Newark and Sherwood District
County) responded promptly with all information requested, with
no charge made. Cheltenham Borough Council complied with our request,
but charged £60.90 for photocopying and postage. The London
Borough of Richmond Upon Thames asked us to refine our request
as it was too large to answer without charging. After modifying
our request, the Local authority provided the information free
of charge. The final request related to hygiene inspections at
the Ideal Home Show at Earls Court exhibition centre. The venue
bridges two local authorities, Hammersmith and Fulham, and Kensington
and Chelsea. Kensington and Chelsea initially told us that to
provide the Information we had requested would cost £1,942.00.
We modified the request which meant there was no charge made and
we were provided with the Information we needed. Hammersmith and
Fulham Council however refused our request entirely. To appeal
this decision we had to go through an unnecessarily Lengthy internal
appeals process, which entailed the council refusing our request
a further two times.
11. We appealed to the Information Commissioner
to highlight this Incorrect refusal. He has issued guidance stating
there is no obvious good reason under the FOIA rules for withholding
information about food hygiene Inspections of restaurants and
that public authorities must be satisfied they are acting within
the law when they do so. We have since received the Information
from Hammersmith and Fulham who plan to make the Information available
through their website and publication scheme from April 2006.
12. While a number of local councils, such as
the Highlands and Glasgow In Scotland, Camden, Southwark and Greenwich
in London, and Bath and North East Somerset, South Cambridgeshire
and Norwich, are publishing this Information proactively, many
do not. Only Norwich, Glasgow and the Highlands Councils have
chosen fully to embrace the spirit of the FOIA and have made public
the detailed inspection forms from their hygiene Inspections.
Other councils have adopted a rating system that summarises top-line
findings, but doesn't disclose all information.
13. We believe there Is a willingness from many
local authorities to provide authorised Information, even proactively,
under section 4 of the Environmental Information Regulations (EIR).
However, there appears to be confusion among councils as to whether
they should treat requests for council hygiene Inspections under
the EIR or the FOIA (the EIR are less restrictive than the FOIA
and more suited to food hygiene requests). Underlying this piecemeal
approach to disclosure is a general lack of understanding of the
FOIA principles and the ways In which internal due diligence protocols
can minimise litigation risks.
Financial services
14. The Financial Services Authority regularly
refuses requests on the basis of sections 138 and 139 of Financial
Services and Markets Act, which governs the treatment of regulatory
information and overrides the operation of the FOIA. They repeatedly
cite their relationship with companies as paramount If they are
to regulate effectively.
15. A good example of commercial interests overriding
public Interest Is endowment mortgages. In January 2005, John
Tiner, chief executive of the Financial Services Authority, made
public a letter to financial companies reminding them of their
duties to treat customers fairly and within the rules when handling
endowment mortgage complaints. The letter stated "there are
some firms which . . . are failing to meet the required standards".
In the public Interest, we believe these companies should be named
because individual complainants may have been rebuffed and could
stand to lose a great deal of money in compensation. Paul Lewis,
presenter on Moneybox, requested the names of firms who
were and who were not meeting the required standard. But for a
number of reasons the FSA decided that on balance public interest
did not override other concerns of confidentiality. Paul Lewis
has approached the Information Commissioner about this
16. The Financial Ombudsman Service (FOS), which
investigates these claims, is not subject to FOIA. Clearly the
FOS performs a public function and it is difficult to understand
why this body should be exempt.
17. In August 2005, we tried again to get information
from the FSA about its discussions with life insurance firms with
with-profits businesses about the future of the Inherited estates
(orphan assets) in the life funds. The information was refused
under section 43: commercial confidentiality, and because the
cost of providing the information would exceed that set out in
the government guidelines. However, we can see no justification
for withholding the information as it is clearly in the public
Interest for policy holders to be confident that any deals are
being conducted transparently and fairly and for consumers to
be reassured the FSA is acting in the public interest.
Other examples
18. We received information from the Medicines
and Health care products Regulatory Authority in July 2005 about
the reclassification of the drug Simvastatin 10mg (Zocor Heart
Pro) for pharmacy availability.
19. We asked the National Parking Adjudication
Service (NPAS) for England and Wales about statistics for parking
appeals. The NPAS said the information was exempt under section
22: intended for future publication. However, they did send us
the information before publication. The same request was sent
to the parking appeals bodies for London and Scotland and this
was supplied.
20. In March 2005, we requested a copy of the
report of the NHS dentistry patient charges working group from
the DH. This was also exempt under section 22 as the DH was planning
to publish the report in summer 2Q05
21. We sent requests for hygiene inspectors'
ratings of certain cruise ships to Southampton Port Health Services
and to North Tyneside Council. The latter complied, the former
said it would cost nearly £1,000 to comply and so we modified
our request.
22. We requested Information from the OFT on
its interim assessment of home Improvement companies which undertook
to resolve a customer's complaint or pay part of the contract
price to the dispute resolution body Qualitas for conciliation/adjudication.
In return the companies were allowed by the OFT to take full payment
upfront (which had been deemed an unfair contract term). The outcome
was a letter from the OFT partially complying with our request
for information. However, some information was deemed exempt.
For instance, we asked for the number of complaints received by
the OFT since 26 June 2003 against certain home improvement companies.
The OFT said It was "unable to confirm or deny whether we
hold such information". It said: "We consider, pursuant
to s2(1)(b), that the public interest in maintaining the exclusion
of the duty to confirm or deny outweighs the public Interest in
confirming or denying whether we hold the information requested.
Furthermore, and pursuant to s17 (4) we are also unable to give
any further reasons for relying on 2 (1) in respect of this request."
CONCLUSIONS
23. In our experience, the process is not as
accessible as it could be, particularly when requests are rejected.
They are often taken through a difficult internal review process
and we suspect that many are giving up at this point.
24. The levels of information generally being
disclosed Is at the lower end, but where the Information requested
is controversial the balance struck by government. seems to come
down against full disclosure.
25. The position of access to information from
Non Departmental Public Bodies who perform a public function needs
to be consistent with the principles of the FOIA.
26. We are also concerned at recent suggestions
that more people who request information from government under
the FOIA could be charged. According to the Observer of 12 February
(p 8), the Lord Chancellor is concerned at the amount of work
civil servants are having to do to meet requests and is considering
whether, for example, the time taken to read documents should
be included in the £600 free limit. Again, this seems to
undermine the spirit of the FOIA, which we believe means information
should be routinely collated, stored and filed to ensure it is
easily accessible, thus keeping these costs down.
27. Which? would question whether the
underlying principles of open government are being met when all
media requests addressed to central government must be processed
through a centralised clearing house at the Department for Constitutional
Affairs, in order to provide "a co-ordinated response".
Which?
February 2006
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