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7 Feb 2007 : Column 296WH—continued
“While the government is pleased by the significant success that FOI represents it will continue to build on that success.”
To me, that it is a commitment. The Government also went on to propose two significant restrictions to the Act’s right of access, but people have generally coped with them.
In general, freedom of information requests are answered free of charge, although applicants can be asked to pay for photocopying and postage costs. However, a Department can refuse to process a request if it estimates that the cost will exceed £600. Local authorities, national health service bodies and other public authorities can refuse if the estimated cost exceeds £450. The expenditure that can be taken into account are the costs of establishing whether the requested information is held and, if it is, of locating, retrieving and extracting it. Staff time is charged at £25 an hour.
The DCA proposes to include the costs of reading the information, consulting other authorities or bodies about the request and considering whether to release it—three more hurdles, all unnecessary.
The more time officials spend discussing a request, the more likely they are to feel entitled to refuse it. The more inefficient or long-winded a public body’s procedures for reaching decisions, the less chance a request has of being answered under the proposed new rules. I have grave fears that the proposed new regulations will invite abuse. Authorities will realise that by deliberately extending the hours that they spend, or estimate that they will have to spend, on a request, they will be able to ensure that a request for information is rejected.
Mr. Phil Willis (Harrogate and Knaresborough) (LD):
Does the right hon. Gentleman agree that there are two significant perils in the Government’s proposals? First, there is the aggregation of requests. Hon. Members—I assume this applies to all hon. Members present—often make a series of requests to the same authority, and
certainly within a three-month period. We would all fall foul of the new regulation straight away. Secondly, and even worse, if one includes an aggregation of requests, one will have to notify the deciding officer about the individual making the request.
The principle of freedom of information is that requests are considered blind and that they are not aggregated. The senior officers in, for example, a police authority about which I am concerned in North Yorkshire, would be able to find out who the individual was and deny their request simply because the individual had made a number of requests within three months. That would be nonsensical.
Mr. Touhig: I rarely regret accepting an intervention, but that is the rest of my speech just delivered for me. I take on board the hon. Gentleman’s point, and I shall refer to it as I develop my argument.
The more people the authority decides to invite to a meeting to discuss the request, the easier it will be to reject it. Instead of just bringing in the officials directly involved, the authority might decide that it would make sense to bring in line managers and departmental heads. A two-hour meeting involving six people at £25 an hour each automatically adds £300 to the cost of the request. A few additional hours will usually be needed to find the information, then there is the time needed to read it and to extract the relevant passages, and we see how we move very quickly towards the cost limit. That work could easily bring the request up to the £450 or £600 threshold without much having been done. If there were any doubt, and the authority did not wish to release the information, it could add an extra few hours by consulting its legal department.
If the issue were important and involved a Department, a Minister might become involved. Is the Minister’s time and that of their private office also to be aggregated and added to the time that it takes to provide the information? That would take the risk over the cost limits. In theory, applicants would have a remedy: they could complain to the Information Commissioner. However, the commissioner, Richard Thomas, already has a substantial backlog of complaints.
The possibility that the time spent on requests might be deliberately inflated is not my main concern, however. Even if authorities are scrupulously fair in their estimates, requests that require officials to spend significant amounts of time considering or consulting on a decision are likely to be refused in any event. Requests that involve complex issues would be an obvious casualty and any request that raises a new issue for the first time is bound to require significant research and consideration before a decision is taken.
Politically contentious requests will also be hit. Inevitably, authorities will spend longer considering such requests, particularly if the consequence of disclosure may be to suggest that the policy the authority is pursuing is a mistake or is not working as intended. The mere fact that the request is contentious and the disclosure could have serious consequences for that authority could lead to it being refused under the new proposals. Secrecy would replace scrutiny in very critical areas and we should resist that.
When a request is refused on cost grounds, that refusal is absolute. The applicant cannot argue that the public interest in the issue is justified if the cost limits are exceeded. As long as the hours have been properly calculated, that will be the end of the matter. In its consultation document on the proposed changes, the DCA argues that the effects of the proposals will not be unduly severe because authorities will still be required to advise and assist applicants who reformulate requests to become more targeted and focused, and I certainly had experience of that when I was a Minister. Where a request is refused because too much information has been requested, the problem can be overcome by helping the applicant to narrow the request—of course it can. However, where a request has been refused because of the time needed to consider the issue, such an approach will simply not work. The DCA argues that the draft regulations will cap at £400 the costs attributed to consideration time or consultation time by a Department. It contends that it would not be possible for consideration time alone to take a request over the £600 limit. However, a combination of the two could take the request over that limit.
The draft regulations contain a second proposal. In some cases, all the requests made to an authority on any subject by an individual or organisation could be aggregated, a point referred to by the hon. Member for Harrogate and Knaresborough (Mr. Willis) a moment ago, and they could be refused if the costs exceeded the limits of £600 and £450.
Jim Cousins (Newcastle upon Tyne, Central) (Lab): Let me give my right hon. Friend an example of that. In Newcastle and Gateshead, there is a housing market renewal pathfinder scheme, which is run by Newcastle city council and Gateshead council. Newcastle is Liberal Democrat controlled, and Gateshead is Labour controlled, but they run the scheme together. The meetings of the organisation take place in private, and I have asked to see the minutes of those meetings. I have been told that I can make a request for them, but it must be made under the Freedom of Information Act, and I must make a request for each meeting separately. I have now, therefore, made about 12 requests simply to get the minutes of a public body. I would fall into precisely the trap of aggregation that he has set out.
Mr. Touhig: My hon. Friend makes a very important point. It is very difficult for us as parliamentarians to find ourselves frustrated when Parliament has clearly expressed its will on the matter.
Mr. Kilfoyle: As an afterthought, it is not just parliamentarians who are frustrated. I have had conversations with the editors of the Liverpool Echo and the Liverpool Daily Post, and they are extremely concerned about the effect the measures will have on investigative journalism. They do a good job in holding local bodies to account. Does my right hon. Friend agree that the proposed measures will inhibit them from doing the job they do so adequately in so many parts of the country?
Mr. Touhig:
I was about to come to that point in response to my hon. Friend. If the aggregation
provisions are included, they could be used against a newspaper, which could then find that the requests made by all its journalists to a particular authority during a 60-day period were refused once the cost limit had been reached. The same would be true of any campaigning organisation or a Member of Parliament. Such requesters might find themselves allowed to make no more than a single request to a political authority during a period of three months.
Authorities would have to show that it was reasonable in some circumstances to aggregate requests, but the consultation paper suggests factors that should be taken into account in reaching such decisions, and I am not convinced that there is a case for them. I find two of the four factors set out to be particularly disturbing. The first proposes that authorities take account of the identity of the applicant. That undermines the basic principle of the Act: it should be applicant-blind. Decisions should depend on the consequences of disclosing information to the public at large, not the identity of the applicant.
The next factor is even more alarming. Page 14 of the consultation paper proposes that authorities should take into account the volume of requests made by an applicant in the past and whether the applicant has been “unco-operative or disruptive”. I am sure that nobody in this room would ever be unco-operative or disruptive in seeking information, but that measure appears to be a direct invitation to authorities to discriminate against applicants who have not shown them sufficient deference. I am sure that time and again, hon. and right hon. Members have had to be awkward with Departments or local authorities to secure information on behalf of their constituents. If the regulations come into force, that provision would be a reason to refuse information to a Member. That cannot be right, and certainly was not the intention of the Act when Parliament agreed it.
The applicant who regularly appeals against refusals may be made to pay a price for doing so. A campaigning newspaper like the South Wales Argus in my constituency might criticise the local council’s handling of its freedom of information requests, or use the information it has got under the Act to express disapproval of a council policy. It may be punished for its temerity by being refused further information on the grounds that it has been unco-operative or disruptive. Who will make that subjective decision? Who will decide whether a person has been unco-operative or disruptive? That causes me considerable concern. Those policies should have no part to play in the operation of the Freedom of Information Act.
Last May, my noble Friend the Lord Chancellor made a speech in which he said that
“our FOI regime is blind to both the identity and purpose of requests. It is rightly blind. The decision whether to disclose must be based on an objective application of the principles to the information requested, irrespective of who has asked, and for what reason.”
“The information released must be evaluated against how it promotes empowerment, and how it improves good decision-making.”
For the life of me, I cannot reconcile those views, which I entirely endorse, with the proposals now being put forward by his Department.
Mr. Michael Wills (North Swindon) (Lab): My right hon. Friend is cogently outlining the problems and what I hope are the unintended consequences of the proposals. I am sure that we shall hear the Minister say that the Government have a duty to safeguard taxpayers’ money. Does my hon. Friend have the impression that the Government have done all they can to save money in implementing freedom of information legislation? They could use more efficient electronic record management, for example, rather than reach for these proposals, which will have the unintended consequences that my hon. Friend so graphically outlines.
Mr. Touhig: I believe that there has been progress and there are opportunities to make further progress along that particular avenue, through greater efficiencies, using IT systems and so on. These regulations are not needed as far as that process is concerned.
What is the driving force behind these so-called reforms? The DCA says it is attempting to reduce the burden on public authorities imposed by more time-consuming and therefore costly requests. Is that aimed at a small number of people who use the Act regularly such as journalists? Only 10 per cent. of the requests come from journalists, with 60 per cent. coming from the general public and 20 per cent. from business and industry.
The Government have published a report that they commissioned from a consultancy called Frontier Economics on the costs of the Act. It showed that the total cost, across the public sector, including the cost of the Information Commissioner and the information tribunal, was around £35 million annually. That is not a large sum when one compares it with the whole spend of Government throughout the country. Indeed, the Minister is quoted in last week’s Press Gazette as saying that the £25 million that central Government spend annually is “money well spent”. I agree with her as far as that is concerned.
The report costed the savings that might come from two proposals in the draft regulations at about £12 million a year. It calculated that taking account of reading, consideration and consultation time would allow authorities to reject about 8,100 requests that they have to deal with now, and that the aggregation proposal would allow 12,000 requests to be refused. It is not clear whether there has been double counting of those two options, but cutting out 20,000 requests to save less than £12 million annually strikes me as blunt and brutal, and quite contrary to whole intention of the Freedom of Information Act. If my hon. and learned Friend the Minister or any of our ministerial colleagues want a few tips on how to save some money, I can buy them a cup of tea in the Tea Room and tell them some of the things that we discovered on Select Committee on Public Accounts that would make people’s hair stand up. I am quite happy to make that offer to any of my ministerial colleagues.
Finally, I have a high regard for my hon. and learned Friend. She has a distinct and quite definite independent streak, and she is not slow to speak out. I certainly found that out when I was the Minister taking the Armed Forces Bill through the House and she was serving on the Committee as the Parliamentary Private Secretary to another Minister. She gave me some grief, and rightly so, because she was not happy with some of
the things that I was saying and proposing. We disagreed, but I respected her powerful argument and the passion with which she employed it. I cannot believe that my hon. and learned Friend is too comfortable with the proposals. I hope that I and others who might catch your eye, Mr. Cook, will persuade her to reconsider and leave the consultation document where it belongs—on the shelf, gathering dust.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con) rose—
Tim Farron (Westmorland and Lonsdale) (LD) rose—
Frank Cook (in the Chair): Order. Hon. Members may be wondering why I am pausing, but I am trying to see how many want to contribute to the debate, yet some individuals are reluctant to stand. So, I am going to sit down and invite hon. Members please to indicate whether they wish to speak.
Frank Cook (in the Chair): Thank you. The reason for that is that the Chair is required to commence the first of the three winding-up speeches at 3.30, which gives us 38 minutes. I would ask hon. Members who seek to contribute please to bear that in mind when they make their contributions, and also when they accept and respond to interventions.
2.52 pm
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): I quickly congratulate the right hon. Member for Islwyn (Mr. Touhig) on initiating this debate on an incredibly important issue.
If one thing signified a change of Government and a change of spirit in the nation, it was when new Labour held out as one of its flagship initiatives its freedom of information legislation. The right hon. Gentleman referred to a quotation by the Prime Minister from before he was the Prime Minister, and I shall do likewise. In 1996, the Prime Minister expressed his personal commitment to freedom of information by saying that
“information is power and any Government’s attitude about sharing information with the people actually says a great deal about how it views power itself and how it views the relationship between itself and the people who elected it.”
I gave a cheer for that, and I would still give a cheer for any Prime Minister who maintained that high standard in their view of the relationship between Government and the people.
Freedom of information has always been about one thing: accountability. Freedom of information raises the level of informed public debate, enabling individuals outside to judge matters of public policy on the basis of that information. I long ago came to the conclusion that it is not ill informed debate that Governments fear; it is informed debate, understanding and the facts that relate to the debate that they fear.
The extraordinary thing is that the law on freedom of information has been fully in effect for only two years. What is behind the drive to introduce, propose or
set out for consultation new regulations? Like many of us, I regard the cost argument as very curious. We are talking about a very small sum of money in the general scheme of things—about £30 million a year as it stands. The Government seek to reduce that, but I think of their other schemes. It does not take much imagination to give a catalogue across 10 years of some of the schemes and the waste, which runs not to tens of millions of pounds, but to hundreds and even thousands of millions. The scheme that perhaps most caught the imagination early on was the dome.
I am therefore concerned about the Government’s proposals and the two significant changes that they hope to bring about. The first is, as the right hon. Gentleman mentioned, that authorities could take account of the costs of the time spent reading the information, consulting other bodies about it and whether to release it, in deciding whether the £600 or £450 limit—depending on whether the request was to local government or central Government—had been reached. The time spent searching for and extracting the information would be included, as it is at present. My second concern—this is the damaging thing—is that authorities could also aggregate unrelated requests made within a 60-day working period by the same individual or organisation, if it were reasonable to do so under the circumstances, and refuse them all if the combined costs exceeded the £600 or £450 limit.
That strikes at the very means by which we learn much information. I see in this packed Chamber a representative of The Guardian, which brings to the public’s attention information that it has sourced through freedom of information applications. The right hon. Gentleman referred to his local paper. For us in the west midlands, the local paper is the Express and Star. I think of the extraordinary role played by the Yorkshire Post in giving ordinary people knowledge about some of the costs of local government structures and the police and how money is spent, and in discovering whether policemen who had been disciplined were still on the force. Those might seem like little things, but the construct is true. How can we judge whether something is appropriate unless we have access to the information?
There is another great organisation called the House of Commons, but many hon. Members now have to resort to freedom of information legislation. I see to my left the hon. Member for Lewes (Norman Baker), who is well known for pursuing details that are not easily available through our processes of tabling parliamentary questions.
So what is behind the proposal? It is, in fact, an endeavour to cut off the public’s wider access to information. I cannot see any other rationale among those that have been put forward to support the decision. [Interruption.] My hon. Friend the Member for North-West Norfolk (Mr. Bellingham) and the Minister know my position full well—it is the position that many, many Labour Members of Parliament held when they were first elected on that bright sunshiny day, 10 years ago.
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