Evidence submitted by Rob Evans, The
Guardian
We write in connection with the Freedom of Information
and Data Protection (Appropriate Limit and Fees) Regulations 2004
("the Regulations").
We strongly oppose the proposed changes and
believe that they should not be implemented at all. We are very
disappointed that the government is seeking to restrict severely
the Act even though it is barely two years old. Lord Falconer,
the constitutional affairs secretary, has claimed that the Act
has been a great success as many people have been using it. Ministers
now apparently want to destroy the very success for which they
are claiming credit.
We are alarmed moreover that ministers appear
determined to rush thorough these proposals. The government has
said that it is intending to introduce the regulations in Parliament
on March 19—a mere 11 days after the end of this consultation.
It appears that ministers have already made up their minds and
are going to push through the changes regardless of what anyone
else thinks.
We believe that instead of seeking to emasculate
the Act, the government should be making it work better so that
members of the public find it easier to obtain information. The
government should be tackling the real problems of the Act—departments
which simply refuse to answer requests, delay their replies for
months on end, or obstruct disclosure by citing unjustified reasons
for their secrecy. We have attached as Annex A three opinion columns
which have appeared in the Guardian since the proposed
regulations were announced in October. These three columns also
set out our views on this issue.
We believe that the consultation paper and the
Frontier Economics report shows that the government has a very
small-minded view of the role of the media in a democracy. There
is nothing in either document which promotes the idea that the
media provides vital information to inform the public. The media
has produced many stories using the Act which are clearly in the
public interest.
We have attached to this submission 50 Guardian
stories which are based on disclosures under the Act (Annex
B). We firmly believe that these are disclosures which have served
the public well. These stories show the Act working as it should
do—enabling the media to report important information to
the public as part of its role in a functioning democracy.
It is clear that the proposed changes would
restrict ability of the public to get access to information. The
Government's proposals appear to be targeted at "serial requesters".
The government's view appears to be that applications by journalists
or campaigning organisations are somehow less worthy than applications
by individual members of the public. Yet the law lords have described
the media as "the eyes and ears of the public"—probing
for information is a necessary and legitimate role of the media
and an integral part of the right to freedom of expression.
We believe that the Government has no power
to implement these proposed regulations as they clearly discriminate
between requesters. The Act explicitly states at clause one (under
the heading of "general right of access to information held
by public authorities") that "any person" is entitled
to be informed whether the public authority holds the requested
information and then to have that information communicated to
them.
Crucially, the Act only contains three statutory
restrictions defining what "any person" means. Clause
14 says that public authorities can refuse a request if it is
"vexatious" or a repeated request from the same person.
Clause 8 states that a request must contain the name of the applicant
and an address for correspondence. It is apparent that any person
has the right to information, provided that the requirements in
these two clauses are met. It is therefore also apparent that
the Act makes no distinction between an individual who submits
a number of requests and one who makes, say, one or two a year.
Accordingly, we believe that a regulation which discriminates
in such a way is contrary to the rights conferred under the Act.
The Information Commissioner has set out clearly
his idea of how vexatious should be interpreted by public authorities.
His views are set out in Freedom of Information Act awareness
guidance no 22 on his website. It is plain that there is a very
high bar to be crossed before a request can be deemed to be vexatious.
We believe that the Information Commissioner is making it clear
that vexatious requests are exceptional. He says on pages 2 and
3 of this guidance that vexatious has been defined in legal cases
as being a request which is designed to subject a public authority
to inconvenience, harassment or expense. He suggests that the
definition should go further so that vexatious only applies to
requests whose main effect would be disproportionate inconvenience
or expense. It is therefore clear that requests from regular users
such as the media or campaign groups cannot be defined as vexatious.
The better term for such regular users is professional requester—they
are not people who make requests just for the hell of it, but
for a proper purpose.
The current regulations allow a public authority
to refuse to comply with a request for information if the costs
of dealing with it exceed £600 (central government) or £450
(other public authorities). In calculation these costs, at the
moment authorities can take into account the costs of searching
for and extracting the requested information.
There are two proposals for changes in calculations
of costs, to include the following:
1. Costs of time spent on the following
activities: reading the material; consulting; considering. We
believe that this will inevitably mean that government departments
will reject requests which are complex or politically-sensitive.
These are often the requests which produce the most valuable information
for the public. Departments which are secretive will be able to
abuse this rule to reject requests. The more controversial a request
is, the more time ministers and senior officials will spend consulting
and considering whether the information should be released. We
have little confidence in the ceilings and thresholds set out
on pages 11-13 of the consultation. We believe that these over-complicate
matters and can easily be manipulated by departments which wish
to evade disclosing information. The current rules on calculating
costs appear to be relatively straightforward, so we see no reason
why they should be changed.
2. Aggregating cases—the cost of unrelated
requests from the same individual or organisation can be aggregated
even if unrelated. If the costs of considering the aggregated
applications exceed the costs limit (£600 central government,
£450 other public authorities), the authority can refuse
to respond to the request. It appears that, if requests are aggregated,
once the costs threshold is reached no further requests can be
made for 60 days.
This is an arbitrary and unfair rule which would
severely limit the number of requests for information we could
make.
For example, if a Guardian journalist
was seeking information from the Home Office about prisons and
another Guardian journalist was seeking from the Home Office
information about immigration, these requests could be combined
and the costs of complying could be added together so that both
are rejected.
We believe that the Department for Constitutional
Affairs has failed to justify this proposed rule on pages 13 and
14 of the consultation paper. The DCA says that public authorities
can aggregate requests if it is "reasonable" to do so.
The DCA suggests factors which could be taken into account in
deciding what is reasonable. However we believe that this proposal
is in practice too ill-defined and unworkable.
The first bullet-point of paragraph 39 is meaningless.
We hope that the DCA could at some point actually explain what
is meant by that bullet-point.
In the second bullet-point, the department says
that public authorities can take into account the level of disruption.
This is very vague and gives over-secretive departments another
excuse to reject requests. We believe that the Act already contains
adequate provisions to reject requests which are vexatious.
In the third bullet-point, the DCA suggests
that authorities could take into account whether the requester
is a business or professional. This breaks one of the provisions
of the Act, which states that public authorities should take no
notice of the identity of the requester (applicant-blind, in the
jargon). We believe that the Act should remain as it is.
In the fourth bullet-point, the DCA states that
the public authority could take into account requests made outside
the 60-day period. As before, we believe that there is no need
for such a provision as the Act already contains adequate provisions
to deal with vexatious requests. All in all, this proposed rule
once again over-complicates the Act when there seems to be no
need for such complexity.
The DCA states that the proposed rule is needed
to stop individuals who are using the Act too much, acting in
concert or are pursuing a campaign. But this ignores a fundamental
truth about freedom of information. Individuals often have to
submit a series of requests to dig out information from departments
which are determined to resist disclosure. Again, this is often
the most useful information for the public. Allowing departments
to invoke this rule merely allows the most closed and recalcitrant
departments to conceal vital information. If these rules and the
Act had been in force at the time, it would be difficult to imagine
that Whitehall would have willingly disclosed information about
the arms-to-Iraq scandal or the BSE disease under the Freedom
of Information Act.
It is of course difficult to say exactly how
many of the 50 Guardian stories would not have appeared
if the new rules had been in force. However we fear that a significant
number of them would not have published under these new rules.
We would like to give you two examples of stories
which would not have appeared.
1. In March 2005, the government for the
first time disclosed the amount of EU subsidy which each farmer
in Britain receives. (Attached at Annex C are two stories which
the Guardian wrote when the list of payments was released). The
disclosure was clearly justified as it shows how taxpayers' money
was being spent. It showed that major landowners received the
largest subsidies from the taxpayer. The public was able to see
this clearly for the first time and decide for themsleves whether
such payments were justified. We believe that such information
would not have been disclosed under these new rules. We understand
that there were extensive discussions involving ministers and
senior officials to decide whether to release. Landowners objected
vociferously, and many meetings were held. Under the new rules,
it would simply have been too expensive and complex to answer
this request.
2. In September 2006, The Guardian showed
how multi-national drug companies have been lobbying ministers
in an attempt to subvert the independent appraisal process and
get their expensive new medicines approved for large-scale use
in the NHS. (We have attached the story as Annex D). This story
is clearly in the public interest as it shows how government policy
is made and how commercial interests seek to influence it. We
obtained the documents for this story by submitting eight requests
to the Department of Health over a four-month period. Under the
new rules, the Department of Health would have been able to refuse
the requests.
If these proposals are accepted, they will encourage
authorities to consult widely in order to raise costs in order
to avoid disclosing information. Efficient authorities, who have
developed cost-effective ways of responding to requests for information
may feel "penalised" in that they will have to comply
with requests for information more often (rightly) whereas inefficient
authorities who unnecessarily increase costs will be able to maintain
secrecy. This defeats one of the public interest purposes of the
Freedom of Information Act—to expose maladministration and
inefficiency and promote good practice.
In particular the proposed changes would be
likely to prevent disclosure of information of the following types:
— Politically sensitive information.
— Politically contentious information.
— Initial applications for a new type
of information.
It is difficult to know what is the aim of these
proposals, other than to restrict access to information. The government
has not put forward any reasons as to why it considers that the
changes to the Regulations are desirable or necessary.
The proposals are based on the Frontier Economics
Report. We have not had access to the raw data on which this report
was based or information about the brief that was given to Frontier
Economics.
We are dubious about the reliability of the
calculations made by Frontier Economics in its report. We have
set out our criticisms in more detail in an article in the Guardian
on 30 October (attached as Annex E). Frontier Economics argues
that the cost of answering freedom of information requests costs
Whitehall £24 million a year. Even if we take that figure
as being true, we believe that this is a relatively low figure.
The Central Office of Information's budget for public relations,
advertising and marketing is more than £300 million a year.
This is money spent by the government telling members of the public
what ministers want them to hear. In contrast, freedom of information
is about what the public wants to know—£24 million
is therefore money well spent. We believe that the government
should redress this imbalance by reducing the Central Office of
Information's budget and diverting that money to freedom of information.
In a time when the public distrusts politicians and the political
system, a healthy Freedom of Information Act is one of the most
valuable ways of curing such distrust. We now live in an age when
the public expects to be told how ministers are running the country.
The Frontier Economics report is lacking in
detail and while the consultants interviewed public authorities
to obtain their views, there was no consultation with those individuals
or organisations who request information.
The Frontier Economics Report does not consider
the principles on which the freedom of information regime is based
and the extent to which these principles may be put at risk by
the proposed changes.
The Frontier Economics Report does not consider
other ways to make savings, for example by improving internal
guidance and good practice in responding to requests.
The data on which the Frontier Economics Report
is based appears to be flawed (the details have not been disclosed
to the public). The report estimates that the Guardian makes 500-700
requests to central government annually. We believe that this
is a gross over-estimate and is actually closer to 250.
The Freedom of Information Act has only been
in force for a year, and it is likely that costs incurred in the
first year are greater because of authorities' inexperience in
dealing with requests. As they become more familiar with the Act
(and precedents are set by the Tribunal) the process should become
more straightforward and efficient. It is clear that the number
of requests were high when the Act first came into force in January
2005, but since then has fallen. It seems likely that the level
of requests has settled down and is unlikely to rise substantially.
When Parliament made this legislation, it was
apparent that greater access to information was likely to involve
some costs. We believe that costs are being incurred because the
culture has not changed—public authorities are approaching
requests in a negative way, spending inappropriate lengths of
time in seeking ways round Freedom of Information Act and too
often referring requests to Ministers for consideration.
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