Evidence submitted by Mark Watts, FOIA
Centre
1. INTRODUCTION
1.1 I am a co-founder and the co-ordinator
of the FOIA Centre, a specialist research company that helps clients
use the Freedom of Information Act (FOIA), and other "open-access"
provisions, in the UK and overseas. We mainly act for newspapers,
but also work for ordinary commercial companies, trade unions,
campaign groups and private individuals.
1.2 I am also a freelance journalist. During
the 1990's, I was one of the first journalists in the UK, as head
of the Sunday Business investigations unit, to make frequent
use of FOIA in America and the Code of Practice on Access to Government
Information, the non-statutory predecessor to the UK's FOIA.
1.3 I have never directly campaigned for
FOIA, but I believe that working as a FOIA consultant and practitioner
since before its enactment in the UK has been an effective way
of pressing for greater openness in government.
2. SUMMARY
2.1 The benefits of FOIA to society out-weigh
its costs. The Government, as evidenced by its proposed amendments
to the fees regulations, fails to appreciate this.
2.2 The Government has failed to make the
case that its proposals would save significant costs overall—or
at all. The Government would best direct its professed enthusiasm
for saving costs in the area of providing information to the public
towards its public-relations operations.
2.3 The very FOIA requests and FOIA requestors
alleged to be particularly costly tend to be the very ones that
are most effective at using FOIA to hold public bodies to account.
2.4 The proposed changes, both in assessing
whether a request is too onerous or in extending aggregation,
each would have a devastating impact on FOIA's ability to hold
government to account. They would be open to abuse by public bodies.
They would result in requests being rejected because they are
"sensitive" or "difficult". They would add
to the already excessive delay throughout the FOIA system. They
would increase costly challenges. And they would have enabled
public bodies to refuse many FOIA requests that, since 2005, have
resulted in disclosures greatly in the public interest. (See pars
3.20 to 3.24 for some examples of such FOIA disclosures that I
have elicited.)
2.5 The proposed amendments should be abandoned.
3. DETAILED POINTS
The proposals in general
3.1 I welcome the fact that this committee
has decided to hold a follow-up evidence session on FOIA, specifically
examining the Government's proposed amendments to the fees regulations,
which represent a major attack on "freedom of information"
in practice in the UK.
3.2 The Department of Constitutional Affairs
is failing to consult properly on the draft regulations as illustrated
by the highly restrictive nature of the questions posed in its
consultation exercise. It fails even to invite responses on all
the changes proposed.
3.3 The changes are proposed on a false
assumption, namely the need to curb the allegedly excessive cost
of FOIA to public bodies, in particular that said to be caused
by a small proportion of requests from professional requestors.
It is ironic that the Government chooses to focus attention on
the cost of FOIA rather than the cost of its public-relations
operations. The department has relied on a flawed analysis, as
summarised in the "Regulatory Impact Assessment", that
fails to make the case that the proposed changes would significantly
reduce the cost of FOIA to public bodies overall—or at all.
3.4 The department has failed to appreciate
the enormous benefits of FOIA, inter alia, in helping to
hold public bodies to account, in particular regarding their use
of public money. Greater openness tends to help keep spending
by public bodies in check. The very FOIA requests alleged to be
particularly costly tend to be the ones most effective at using
FOIA to hold public bodies to account.
3.5 As this committee found in its review
of FOIA last year, while FOIA has resulted in much disclosure
serving the public interest, it has been beset by excessive delays.
These delays plague all stages of FOIA requests, both at public
bodies and the Information Commissioner's Office, caused in part
by the need to apply and interpret an already overly complicated
piece of newly enforced legislation. The major changes proposed
would add to the delays, introducing significantly different regulations
that would inevitably result in (lengthy and costly) testing.
The "appropriate limit"
3.6 Additional costs of complying with a
FOIA request, in assessing whether a request is too onerous, should
not be introduced without a proportionate increase in the "appropriate
limit", the maximum amounts above which pubic bodies do not
have to comply with a request. The proposed changes represent,
in effect, a sharp reduction in the resources a public body would
be required to spend in complying with a FOIA request. Indeed,
they would have enabled public bodies not to comply with many
FOIA requests that have resulted in disclosures since 2005 that
helped hold public bodies to account and were therefore greatly
in the public interest. Moreover, the proposed changes will impact
far more requests than merely, in relation to central government,
the 5% said to cost more than £1,000. The department claims
that it is trying to tackle the problem of these kinds of requests:
if so, it should accompany properly drafted changes to cost requests
more accurately with an increase in, for example, the central
government "appropriate limit" from £600 to £1,000.
3.7 The proposed changes in assessing whether
a request is too onerous—the addition of time spent "examining",
"consulting", "determining" whether any exemption
applies to information requested, and "reaching a decision"
on whether any such exemption should be applied—and to "aggregation"
(and associated "factors") are vague, would themselves
require additional resources to assess (of which the department
has failed to take account), and would be open to abuse by public
bodies. Any amended regulations must be drafted more precisely.
Refusals citing the new regulations, as proposed, would frequently
be open to challenge by requestors. This would result in a large
cost to public bodies, as they would have to deal with the inevitable
challenges to the regulators and, potentially, the courts, all
of which the department has failed to take account. Contrary to
the department's claim, this would be a persistent problem because
of the delays already in the FOIA regulatory system.
3.8 The department has also failed to take
account of the increased cost caused by requestors inevitably
seeking more "advice and assistance" under FOIA as a
result of the proposed changes than they already do.
3.9 The regulations require much more careful
and precise drafting: the proposed regulations are so poorly drafted
that they need completely re-writing.
3.10 There is no reason in principle why
thresholds and ceilings, if appropriate in relation to consulting
and considering are not also appropriate for examining. The inclusion
of thresholds and ceilings for examining, comparable to those
currently proposed form consulting and considering, would limit
the damage slightly in ensuring that a public body cannot avoid
compliance solely by examining material.
3.11 The inclusion of the ceilings as currently
proposed, although ensuring that a public body cannot refuse complying
with a request solely because of the costs to it of either consulting
or considering, fail to prevent enabling public bodies readily
to avoid complying with FOIA requests in part using either or
both of these new devices. If a public body were to claim that
a request requires the maximum allowable amount of consulting
or considering, then there would be very little margin left to
cover all other costs. Moreover, if a public body were to claim
that a request requires a lot of consulting and considering, it
would be able to refuse to comply with a request solely on this
basis. As a consequence, and contrary to the department's claim,
requests would be rejected in either scenario, principally or
solely, because they are "sensitive" or "difficult".
3.12 The proposed changes to allow public
bodies to impose charges for "consulting" and considering,
without limit, would be open to abuse. There is no justification
for allowing public bodies to impose these additional charges
on FOIA requestors.
3.13 The damaging effects of the inclusion
of consulting and considering would be slightly reduced with a
reduction in the ceilings, which are best set at a per centage
of the maximum limit for all costs (which should be increased
to at least £1,000 for central government requests): I believe
that it should be no higher than 10% for each.
Aggregation
3.14 I reject the idea of aggregating requests
on different subjects from one requestor, or requestors alleged
to be working in concert or in pursuance of a campaign, in assessing
the costs of requests. The proposed change would particularly
hinder media organisations and freelance journalists, who in effect
make requests on behalf of the public at large, and other professional
requestors (such as research companies and lawyers), who make
requests on behalf of members of the public otherwise unable or
unwilling to negotiate the complexities of FOIA. These types of
requestor have proven to be most effective at using FOIA to hold
public bodies to account on behalf of the public. Curtailing such
requestors would therefore have a hugely damaging effect to the
public interest. I have no doubt, given the evidence previously
given to the Committee by the BBC, that members are fully aware
of how media organisations have used FOIA to inform articles or
great public interest. The FOIA Centre, which often works for
media outlets, has had comparable success, and examples can be
seen on its website at www.foiacentre.com. Had the proposals on
aggregation already been in force, then many of the FOIA discoveries
of significant public interest that were unearthed by the BBC
and other media organisations would have remained hidden from
public view. (See pars 3.20 to 3.24 for some examples of such
FOIA disclosures that I have elicited.)
3.15 Under the proposals, public bodies
would be able to deal with more media enquiries than they currently
do only as FOIA requests, then aggregate such requests from a
media organisation or freelance journalist and so refuse to deal
with such enquiries at all. This would have the extraordinary
consequence of FOIA tending to make public bodies in the UK less
accountable than before FOIA was introduced.
3.16 The Office of the Information Commissioner
has highlighted, and the recent News of the World case
has demonstrated, how newspapers frequently obtain confidential
personal information illegally. I am the author of The Fleet
Street Sewer Rat, a book published in 2005 detailing how newspapers
used Benji "the binman" Pell to obtain confidential
information stolen from rubbish from professional advisors to
notable people. While I have long argued against such information-gathering
methods at or beyond the edge of legality, I have pointed out
that newspapers in the UK employ these techniques because of its
culture of secrecy. While that is no justification for routine
use of illegal information gathering, a society that increasingly
rejects such methodology must embrace "freedom of information".
3.17 As a FOIA consultant, I spend a lot
of time limiting the aspirations of newspapers, members of the
public, and others asking for my assistance in seeking information
under FOIA. For every request that I have filed on behalf of someone,
I have also persuaded someone that filing some request or other
would waste everyone's time (including that of the relevant public
body) thus stopping that request from being filed. The same affect
applies to "reviews" and "complaints". Curtailing
requests from professional requestors, such as research companies
and lawyers, would result in public bodies seeing a large number
of time-wasting "unsifted" requests, and, indeed, having
to provide members of the public with a good deal of assistance
with FOIA that professional requestors, such as research companies
and lawyers, currently provide. Again, the department has failed
to take account of this.
3.18 Having stated my opposition to the
aggregation proposals, I regard it as being imperative that the
extended aggregation provisions do not apply to: journalists,
media organisations (whether they publish newspapers, magazines
or online, or broadcast on television, radio or online), professional
researchers, research companies lawyers, and law firms. I am conscious
that this raises difficulties about who or what qualifies under
most of these categories, and I re-iterate my view that the best
course is to abandon the aggregation proposals.
3.19 The aggregation proposals also change
a fundamental principle of FOIA that the interests of the requestor
is irrelevant to the decision as to whether the requested information
should be disclosed. This principle should not be overturned in
the underhand manner proposed and represents a further reason
why the aggregation proposals should be abandoned. This is reinforced
by the fact that even under the flawed analysis commissioned by
the department, the saving that would allegedly be achieved by
the aggregation proposals would be highly marginal.
Examples of requests
3.20 I have made many FOIA discoveries of
significant public interest, the vast majority of which were made
on behalf of newspapers. Examples can be seen at www.foiacentre.com/news.html.
Some would have been kept hidden from public view if the proposed
amended fees regulations had been in force since January 2005,
and I cite four examples below.
3.21 One example concerned the Department
of Constitutional Affairs itself. The background to the request
was that I did not believe that Michael Burgess, then the coroner
for the inquest into the death of Diana, princess of Wales (as
well as then the Coroner for the Royal Household) had proper jurisdiction.
I formed this view from my knowledge of coroners' courts dating
from my experience as an evening newspaper reporter. Therefore,
on 18 January 2006, working for a newspaper, I filed a FOIA request
to the department for "copies of documents relating to the
choice of coroner". The department granted itself an extension
10 times to consider the possible application of an exemption:
it plainly would have used the amended fees regulations to evade
disclosure in this case if they had been in force: regardless
of whether such use was in fact justified. In the event, on 21
July 2006, it partly complied with my FOIA request by releasing
a "summary" of information stating that Michael Burgess's
predecessor as Coroner for the Royal Household, the late Dr John
Burton, had wrongly assumed jurisdiction in that capacity on the
false basis that Diana would be buried in Windsor Castle (I still
await the rest of the department's response to my FOIA request
of more than a year ago). Therefore, as I suspected, Michael Burgess
did not have proper jurisdiction. Coincidentally, on the very
day of disclosure, in response to my FOIA request some six months
earlier, Michael Burgess announced his resignation as coroner
for the Diana inquest. An account of this episode can be seen
at www.foiacentre.com/news-diana060724.html. The FOIA disclosures
were reported in the media, although the resignation itself attracted
far more attention than the jurisdiction issue.
3.22 The Legal Services Commission took
nine months to comply with my request for payments it had made
to Cherie Booth QC and to Matrix Chambers. An account of this
can be found at www.foiacentre.com/newscheriesbooth051221.html.
The disclosures were widely reported in the media. The Legal Services
Commission said that the delay was caused by the difficulties
in collating the information requested. This example illustrates
that, because of typically chaotic information-management systems,
public bodies can find it extraordinarily difficult to comply
with straight-forward requests for information. As a consequence,
many FOIA requests would fall foul of the proposed changes because
of the inadequacies of public bodies' information-management systems.
The Department of Constitutional Affairs blames FOIA requestors
for failing to make well-focussed requests even though public
bodies are often unable to comply efficiently with even well-focussed
requests. Another manifestation of poor information-management
has been illustrated by the difficulties the Home Office has had
in dealing with data on overseas convictions. The Government should,
for many reasons beyond FOIA, direct attention to overhauling
public bodies' information-management systems. One by-product
of this would be to make it much easier for them to reply to FOIA
requests.
3.23 Similarly, Safety Camera Partnerships
typically found requests for data on the proportion of speed-camera
housings that actually contained cameras difficult to supply,
and would no doubt have used the amended fees regulations to refuse
disclosure: regardless of whether such use was justified. In the
event, the data showed that, as tighter restrictions were imposed
on the use of speed cameras, there had been a sharp rise in the
proportion of speed-camera housings actually containing cameras.
An account of the findings can be seen at www.foiacentre.com/newscameras050721.html.
The Sunday Times also ran an article on the disclosures.
3.24 Another example concerns FOIA requests
that I made on behalf of the parents of a child alleged to have
suffered debilitating adverse reactions to the MMR triple-vaccination.
I requested the minutes of various meetings held at the Department
of Health. The requests resulted in a tortuous process, in which
some minutes were said to have been inexplicably misplaced or
destroyed, and extensions were claimed to consider possible exemptions
for others. The department would have been able to use the amended
fees regulations to evade disclosure if they had been in force:
regardless of whether such use was justified. In the event, the
department did disclose, with redactions citing exemptions, the
vast majority of the minutes requested. And they reveal that the
UK Government received a series of alerts from overseas about
serious adverse reactions to the MMR vaccine, including meningo-encephalitis,
prior to introducing it. I am currently preparing to write about
these MMR disclosures for publication.
4. RECOMMENDATIONS
4.1 The proposed amendments should be abandoned.
4.2 Reforms to FOIA are needed to make it
more effective at holding government to account. The most important
area for reform is the Office of the Information Commissioner,
which must have sufficient resources to clear the backlog of complaints.
February 2007
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