Attachment
COPY OF LETTER SENT TO THE PARLIAMENTARY
UNDER SECRETARY OF STATE, DEPARTMENT FOR CONSTITUTIONAL AFFAIRS
29 NOVEMBER 2006
The Newspaper Society welcomed the Prime Minister's
statement at the Newspaper Conference Annual Lunch at the House
of Commons on Monday that the Government "will certainly
consult" the Newspaper Society and others "very widely"
on its proposals to change the Freedom of Information Act and
that the Government "will listen carefully" to what
is said and will "take on board seriously" the concerns
expressed by the regional newspaper industry and others.
The regional newspaper industry is deeply disturbed
by the Government's announcement in its response to the Constitutional
Affairs Committee Report on the first year of the FOI Act that
it is "minded to
— include reading time, consideration
time and consultation time in the calculation of the appropriate
limit (£600 for central government, £450 for other public
bodies) above which requests could be refused on cost grounds;
and
— aggregate requests made by any
legal person, or persons apparently acting in concert, to each
public authority (eg Government department) for the purposes of
calculating the appropriate limit."
These could have a hugely detrimental effect
upon use of the FOI Act at local level.
The lives of the 40 million adult readers of
the local and regional press are closely affected by the work
of their local public services and local public bodies—these
public bodies make the decisions, allocate and spend public funds
and provide the public services of immediate importance to the
lives of those readers and their families—from all aspects
of health, education, housing, to the effectiveness of controls
over crime and anti-social behaviour, clean restaurants, speeding
or parking fines, the provisions of sport and leisure facilities.
Our members' 1,300 local and regional newspapers obviously each
continually monitor and report on the activities of the specific
local and regional public bodies and services which affect their
local community. Private individuals and journalists have therefore
used the FOI Act from the outset to obtain authoritative and accurate
information from the relevant regional and local public bodies
about a range of issues of interest and real importance to the
public. This has assisted local public scrutiny of local public
bodies, facilitating openness, transparency, probity and accountability.
Such requests and the local media stories engendered by the information
released have also helped to encourage those public bodies to
release more information of interest to the public and of public
interest, via publication schemes or otherwise, independent of
specific requests. We fear that the Government's proposals will
effectively prevent such use of the Act and discourage the development
of greater openness.
As the Information Commissioner's progress report
says, the first 18 months of FOI "has been very much a learning
experience" for the Information Commissioners' Office and
public authorities. The Information Commissioner comments "The
vast majority of public authorities are taking freedom of information
seriously. Regrettably, some are not."
The Government's first proposal would provide
an easy way for local public bodies to block investigation of
matters of public interest. The time calculation would not as
now only prevent requests from local journalists or private individuals
for a large volume of information, or for information that is
difficult to locate because of the "search and location"
time involved, (which if refused at least provides an opportunity
to make a more manageable request, within the cost thresholds).
The inclusion of reading time, consideration time and consultation
time in the calculation of the £450 limit (calculated at
£25 per hour) could provide a very easy way to simply refuse
any "difficult" request in its entirety, without give
any reason or justification by reference to the Act other than
cost estimate—and without any other ground for review or
appeal.
Thus the public right to receive information
would be defeated by a time/cost estimate. The Government's proposal
will become a useful tool for any public body which does not wish
to provide information that it would be otherwise obliged under
the Act to release, perhaps because the disclosure could embarrass
the body or officials or members, elected or otherwise. The proposal
would indeed encourage those public bodies who are not taking
FOI seriously to avoid any improvement of their attitude, compliance,
records management, practice, procedures and training.
The local public body could all too easily claim
that anything other than a simple request, for which there is
already precedent for release, becomes cost barred. The public
body might claim that it will take too long and exceed the cost
threshold because it would have to consider the application of
the Act very carefully, because it related to an unfamiliar area,
or a sensitive area, especially if the request would otherwise
require the release of information which the public body does
not want to reveal. Easily located information which has not previously
been requested would become subject to the cost threshold because
any public body might claim it required careful consideration
of exemptions, application of the public interest tests, or it
might require liaison between different departments of local authorities,
or might require the involvement of various senior staff and thence
to the chief executive, who is supposed to be championing FOI,
the time spent reading, considering and consulting adding up at
every stage . The local public body could notionally factor any
or all such time for reading, considerations and consultations
into the total time estimates and costs calculations and then
be entitled to refuse the request as exceeding the £450 limit.
The requester could not then attempt to reframe the request soas
to reduce the time and cost, by reducing the volume of information
required or more tightly defining the parameters of the request.
The subject matter might indeed require substantive consideration
and consultation time, but these should not automatically be disincentives
permitting refusal.
The Government's proposed change in itself could
not only encourage refusal contrary to the intention of the legislation,
but also discourage use of the Act, by press and public alike,
for anything but the most straightforward request strictly following
such early precedents as have been set and insofar as the backlog
of appeals to the Information Commissioner and Tribunal have allowed
the parameters of the Act to be considered. The true boundaries
of what the public has a right to know and what information the
public sector is obliged to share would then never be properly
delineated and institutional secrecy reinforced. There will be
no culture change precipitated by the Act.
However, the problem is compounded by the Government's
second proposal. The intention to allow aggregation of requests
would permit the local public body to take into account all the
time taken and all costs estimated for the purpose of the costs
threshold of all requests from any and all individuals working
for the same company, or same organisation, considered to be a
"legal person", as well as all requests made by the
same person over any 60 working day period request. Thus in a
local newspaper context, the first change would work against any
individual journalist who submitted a request raising difficult
issues, occasioning consideration and consultation time over the
maximum cost threshold. However the second would work against
any general news reporter or investigative journalist or specialist
reporter such as the health or crime or local government correspondent
who might be putting in different requests on different subjects
to the same local public body, by allowing the cost threshold
to be calculated by reference to all requests from that particular
journalist and the time taken on each, including reading, consulting
and consideration time, to be aggregated, irrespective of whether
they were dealing with the same issue or different issues. Even
worse, it would also allow a local authority or police force or
any local or regional public body with wide ranging public functions
to aggregate all the FOI requests in any 3 month period independently
made by all and any journalists working for the same newspaper
company (which might include a number of local and regional titles
and their websites or multimedia activities in the region served
by the public body). The time and hence the cost thresholds could
quickly be exhausted and so practically all the journalists' requests
would be refused on that ground alone, rendering the Act useless
to the local media.
The combined effect of the Government's two
proposed changes could thus effectively restrict the use of the
Act by any local newspaper company to one request by one of its
journalist per quarter to any public body, despite the importance
and range of that public body's responsibilities and diverse interests
of the public whom it served, possibly across a wide geographic
area. It could kill any use of the Act by the local media.
This problem is illustrated by one of the reports
cited by The Frontier Economics Report. The Report does admit
that there is no information available on the volume of FOI requests
or the costs of such requests to public bodies other than central
government. It carried out no research itself. However, it refers
to the I&DeA Freedom of Information Act 2000: The first six
months—The Experience of Local Authorities in England, 30
September 2005. The survey therefore covered the local authorities'
reactions to this initial period combining peak numbers of requests
and maximum unfamiliarity in dealing with the Act. It was based
on substantive responses from 200 of the 387 local authorities
in England. That report suggested private individuals were the
largest single category of requesters (60%), followed by business
(20%) and then journalists (10%). In the first six months district
councils received on average around 50 requests and larger councils
(county, metropolitan, unitary and London) around 150. The monthly
volume of requests declined over the first six months, but the
complexity of requests had grown. Only 8% were refused of which
a third were subject to internal reviews because of requester
dissatisfaction.
The local authorities estimated that the time
taken to deal with the average request took around 12 hours for
districts and 14 hours for other councils although "a small
number of complex requests mostly from local pressure groups and
journalists which took considerably longer". Two third of
councils made no charge and of those that did, were mainly for
copying and postage.
Yet under the Government's new proposals, had
they been part of the Act as introduced, any one of those more
difficult requests or any second request regardless of subject
matter or complexity from any of those individuals, businesses
or journalists could well have been refused for no reason other
than the new basis for calculation of estimated time and/or aggregate
of requests counting towards the £450 cost limit.
No review or appeal would have been possible
other than on cost grounds. Few would have enthusiasm for another
attempt. The Act would have been stifled at birth.
Yet what real justification could there have
been to refuse the information which was actually released? The
public did have the right to know—the Act required its release;
it could not be lawfully withheld under any exemption. These requests
were not frivolous, or vexatious, or particularly time consuming
because an excessive volume of information had been requested
or huge numbers of requests made by serial requesters. Media use
was not identified as a problem, nor journalists accused of wasting
public bodies' time and resources. After all, the biggest problems
of compliance reported by the local authorities were "applying
exemptions, including the public interest test; distinguishing
between FOI and EEIR regimes; persuading colleagues to comply
with timescales and use request tracking systems; and coping within
stretched resources, sometimes with no budget and with staff allocated
to FOI on a temporary basis".
These are issues which the Government should
be encouraging local public bodies to address, rather than providing
them with an easy way to avoid releasing information in response
to requests. According to the report, recognition of the importance
of better records management was actually cited by the local authorities
as one of the benefits of FOI. Indeed, although the local authorities
were unhappy about the use of FOI by business, far from condemning
media use of FOI, or deploring the time spent on consultation
between departments because of FOI or requiring the involvement
of senior management on FOI, they welcomed all these as positive
advantage of the Act: "Other benefits are better engagement
with the public and the media, identifying stakeholders and their
concerns, and identifying problem in service delivery. FOI had
also helped to increase co-operation and communication between
departments." Suggestions for good practice included "seeking
to ensure the continuing positive involvement of senior management
in the context of the relationship of the council with the public
and positive development of the publication scheme".
We would prefer that the Government encouraged
local and regional public bodies to improve their systems and
publicised such positive benefits instead of encouraging new ways
of obstructing the release of information under the Act.
The Prime Minister did ruefully remark to the
audience at the NS Newspaper Conference lunch that "It's
a pity in some ways we don't get a little more credit for actually
having opened ourselves up in a way no government has done before
us".
The regional press has been a strong supporter
of freedom of information over many years and supported Labour's
manifesto commitments on FOI for many years. Despite its opposition
to the dilution of Labour's original proposals for the Act and
its lobbying for the legislation's improvement during its parliamentary
passage, the regional press has since worked with the Government
to raise awareness of the Act as passed and the benefits that
it might bring. The regional media's own anticipated interest,
in addition to its encouragement of its local readers' use, has
indeed been used by the Government to focus national, regional
and local public bodies' attention on the need to make proper
preparations for the Act.
Lord Irvine, when Lord Chancellor, suggested
that the Government and the Newspaper Society should work together
to alert both local public bodies and the local press to the opportunities
provided by the Act. Local and regional newspaper editors wrote
to all their local public services and bodies, enclosing a letter
from the Lord Chancellor, in order to open a constructive dialogue
on preparations for the Act and the public's and media's use of
it. The then FOI Minister chairing the Advisory Group on implementation
of the Act welcomed our follow up survey `The Challenge for Freedom
of Information' as part of awareness raising to encourage preparation
for the Act. You wrote to the NS on its publication, which revealed
that further work needed to be done, that nonetheless "The
Freedom of Information Act is already making a very real difference
to people's lives. More and more information is being released
by local authorities and central government departments as they
operate under the FOI regime. Freedom of Information marks a significant
and hugely important change and the Government is fully committed
to spearheading this process of change."
The Government has used examples of regional
press stories to illustrate the success of the FOI Act. The Lord
Chancellor has highlighted some of them in his speeches. The Campaign
for Freedom of Information and Information Commissioner have given
examples of local newspaper stories derived from effective use
of the Act. A quick search of regional press websites, or sites
such as holdthefrontpage or Press Gazette archives which cover
the regional press, would reveal a multitude of articles and investigations,
where local and regional newspapers' journalists had used the
Act to obtain information of interest, relevance, importance to
their readership—and often prompted local public bodies
in future to release such material as part of publication schemes.
The regional press credit the Freedom of Information Act for releases
of that information and thereby the Government.
Regional and local newspapers have welcomed
the opportunities presented by the Act. They appreciate information
released by central government which was unavailable in the past,
and now repays analysis for relevant regional and local stories
but the FOI requests that they have made to local and regional
public bodies have also yielded much valuable and important information
for stories of real public interest and strong relevance to the
local community.
Our concern is that the Government's two proposals
will undo `the significant and hugely important change' to which
you say it is fully committed. We find it very surprising that
the Government wants to introduce any changes that will shut down
release of information to the public and shut out the media, just
as central government and local public bodies and the Act's users
are acclimatising to the beginnings of the cultural change which
the Act was indeed supposed to initiate.
Our lack of understanding perhaps is unsurprising
since the Government has not yet published any detailed consultation
document, provided no policy justification, provided no regulatory
impact assessment, and produced no evidence based research on
its local impact.
The Prime Minister referred to the cost benefit
analysis. The Frontier Economics Report stated that it had no
information about the number and cost of FOI cases outside central
government. It estimated the annual total costs of FOI was estimated
to be £35.5 million, of which an estimated £11.1 million
was attributed to public bodies other than central government
departments including an estimated £1.6 million attributed
to dealing with journalists' requests (£1.4 million for requests
and £140,000 internal reviews ).
These seem paltry sums for any search for savings
to justify such drastic restrictions on use of the legislation.
We find it hard to believe that it can provide any justification
for the Government's proposals which could sabotage freedom of
information, within just two years of its introduction.
The Newspaper Society therefore asks the Government
to reconsider its intentions on changing the Act and to honour
the Prime Minister's commitment to consult widely before bringing
forward any legislation to restrict use of the Act, directly or
indirectly.
Santha Rasaiah
Political Editorial and Regulatory Affairs Director
November 2006
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