Evidence submitted by Brian Deer
This email summarises my experience, as an investigative
Sunday Times newspaper journalist and Channel 4 television reporter,
of the Freedom of Information Act 2000. I'm in no doubt whatsoever
that the government's present stated proposals would neuter the
act's substantive intended, purpose, whilst leaving a genuine
problem unresolved.In addition to various Sunday Times reports,
I've produced two Channel 4 investigative documentaries, which
relied significantly on FOIA disclosures:
1. DISPATCHES:
MMR—WHAT THEY
DIDN'T
TELL YOU
(TX NOVEMBER 18 2004)
From the outset, this investigation, into the
source and basis of what has become a worldwide alarm over the
safety of the MMR vaccine, was dependent on documents released
to me under FOIA: including releases made prior to the act's formal
implementation, where public bodies followed guidance from the
Lord Chancellor that its provisions, where possible, should be
adhered to before implementation. Releases included those from
the Legal Services Commission, a strategic health authority, the
Medical Research Council, the Science Museum, an NHS hospital
trust and a university. In some cases, applications were made
post-broadcast, in the face of, unwarranted and discontinued,
complaints.
I'm in no doubt that without voluntary releases
of information in accordance with the act's provision, the public
would remain seriously misinformed on the MMR issue. At stake
is the safety of children by means of vaccination: a matter of
rarely-paralleled public interest and concern.
2. DISPATCHES:
THE DRUG
TRIAL THAT
WENT WRONG
(TX SEPTEMBER 28 2006)
This programme focused on events at the Northwick
Park hospital in March 2006, where six volunteers were seriously
injured in a test of an experimental monoclonal antibody. Media
coverage, including my own, was pivotally dependant on initial
releases by the Medicines and Healthcare Products Regulatory Agency
of complex technical information, following numerous applications
from press and broadcasters. I made a successful supplemental
request, appealing MHRA redactions of key, highly complex, passages
of documents, which facilitated onscreen questioning of the agency's
chief executive. In addition, I obtained a substantial quantity
of material from the hospital's ethics committee, without which
key inferences couldn't have been drawn as to responsibility for
the incident.
Issues arising from the government's proposals
The public interest—and indeed, I think,
democracy—is well served by journalists having access to
information that's as accurate and complete as possible. The hallmark
of both of my Dispatches programmes was the role of a reporter—ie
myself—who strived to be a trustworthy guide to complex,
contentious and potentially defamatory issues. Such journalism
would be irreparably hampered were the government's proposed restrictions
to be implemented.
Among other things, in my experience, the act
has led to:
(a) The opening of hospital ethics committee
files. This has been a major advance, for the first time revealing
the basis for decisions intended to protect from harm participants
in medical research. Prior to the act, nothing was released by
these committees, which invariably claimed blanket confidentiality
for their decision making.
(b) Releases of documents from the MHRA.
In some cases, disclosures to me have run to hundreds of pages—requiring
highly technical redactions by specialist staff, often tasked
with the responsibility of balancing the public's right to know
against legitimate—and legally protected—commercial
confidences. Such releases have, for the first time, allowed considerable
public scrutiny of the approval, safety monitoring and regulation
of medicines.
(c) Releases of hospital and university documents.
These have made it possible to understand the operations of public
bodies responsible for enormous slices of public spending, as
well as, in my own work, to expose serious misconduct over the
treatment of children involved in the MMR matter.
(d) A release to me by the Medical Research
Council. This made it possible to identify critical information
on misconduct associated with the fabrication of purported evidence
linking the MMR vaccine to autism, and to refer this for investigation
by the General Medical Council.
Most of my applications have involved extensive,
complex, material—often requiring considerable, fine-detail,
redactions—that would likely fall foul of the government's
plans to (a) incorporate "thinking time" into the £600
limit for the cost of applications, and (b) aggregate applications
by any one individual or organisation for the calculation of the
costs limit.
In my view, on vital issues of concern, key
public bodies, especially government agencies involved in medicine
and science, would be substantially exempted from the act, since
most applications of genuine merit, such as mine, can be expected
to take considerable time to responsibly redact and process, well
in excess of the scope now envisaged by the Department for Constitutional
Affairs.
I've made several other applications under the
Act. Among these was an application to the MHRA concerning the
drug Vioxx. My application was vigorously opposed by the drug
company Merck, which was given an opportunity to comment (on grounds
that the material might be challenged as commercially confidential).
This application was delayed for months, and triggered a considerable,
legitimate, expenditure of staff time. If the government's plans
were implemented, applications which are opposed by interested
third parties, or which might be expected to be opposed, would
be at risk of being routinely disqualified.
Public bodies have referred several of my applications
to lawyers. Self-evidently, reference to lawyers greatly increases
the cost of processing the application. In complex matters, the
risk arises from the government's proposals that public bodies
who don't wish to disclose information may find an escape by merely
contemplating the necessity of obtaining legal advice. Time and
money may also potentially be expended, and hence incorporated
into calculations, by seeking advice from the Information Commissioner.
Any rise in the number of applications rejected
under the government's new proposals can only be followed by a
substantial increase in the number of complaints to the Information
Commissioner. I should say that two of my, strongly public-interest,
applications over MMR, submitted on the first day of the act's
formal implementation, are, more than two years later, still awaiting
the commissioner's rulings. Thus, one upshot of the current proposals
is likely to be an appeals machinery which may deliver information,
if at all, so long after the application was first lodged that
any eventually-released information becomes moot for the passage
of time.
Genuine problems with the 2000 Act
I think it's important that the constitutional
affairs committee recognises that there are difficulties arising
from the act, which are of legitimate worry. Perhaps, there's
a parallel with chairs in bookstores. In the United States, it's
normal to be able to sit in a bookstore and read a book. In the
UK, some customers seem to behave differently, given the opportunity.
In essence, they pig out on free magazines, and whathaveyou, but
don't really buy anything. In response, it seems to me, Borders,
for example, has tended to cut back on comfy chairs. Similarly,
with FOIA. It works well in the United States, and is a staple
of the democratic process. But—possibly because the novelty
hasn't yet worn off in Britain—there are a applicants who,
I've personally observed, abuse the system.
There are countless FOIA timewasters, who will
fire off an officious 50-word email, and set in train activities
in public bodies that can consume many days of valuable staff
time. What the applicant seeks is often related to some hobby-horse,
of no interest to anybody but themselves. They'll ask the wrong
questions, or approach the wrong body, make repeated requests,
which are sometimes little more than vexatious, and thus squander
cumulatively consequential public resources. I don't believe that
many such persons are journalists.
Because FOIA requests are usually in nonstandard
form, they often trigger disproportionate bureaucratic issues
at the receiving authority. Recently-retired professionals (especially
doctors) can be the worst for problem behaviour, as can persons
involved in petty spats. It seems that these applicants sometimes
have nothing better to do than patronize public authority staff.
Academics, too, can sometimes churn out countless FOIA requests,
perhaps thinking that the hapless employees of all manner of organisations
have no other tasks to get on with.
In short, it's my view that FOIA + universal
email is the real culprit for any legitimate problems the Government
is seeking to tackle. I think it's worth recognising these problems
in order to find a workable way forward.
A potential proposal for change
Under the data protection act 1998, applicants
may be asked to pay a nominal flat fee of £10. It's my impression
that they're almost always asked to do so, even though £10
is unlikely to cover the cost of its own collection. This fee
must surely discourage some element of timewasting.
In my view, the constitutional affairs committee
might consider adopting the recommendation that all FOI applications
should likewise be subject to a flat fee (if necessary as a minimum
"gatekeeping" fee). I would think that a great many
armchair applicants, who have no real public interest motive,
would be discouraged from unnecessary applications if they had
to pay, say, £20, irrespective of what may later be legitimately
billed by the public body. Even journalists, required to execute
the clerical exercise of issuing a cheque, would likely think
twice before tapping out a memo to a public body that perhaps
wasn't wholly necessary.
As someone with extensive practical experience
of the act (including three complaints to the commissioner, with
one adjudication published), I can assure the committee that the
government's plans would very seriously hamper important public
interest inquiries. If curtailing investigative journalism is
not the government's aim, then ministers should abandon the plans
as proposed.
February 2007
|
