Justice CommitteeWritten evidence from David Smith

This a personal submission based on my personal experience of the Act. I am involved with a local group campaigning for democratic reforms at national and local level. This has motivated my recent use of the act, but this submission is made in a purely personal capacity.

1. Summary

I have used the Freedom of Information on a number of occasions from 2005 to date. As a result of this I have come to the following conclusions:

The Act has generally served me well until recently; however:

(a)I have found Local Authorities to be more helpful in their replies than are departments of state. [para. 3]

(b)There appears to be a trend towards avoiding any response in advance of the 20 day deadline. [para. 4]

(c)Organisations subject to the Act can create work for themselves by failing to respond to less formal requests for information. This could be a factor in the increased use of the Act. The ICO should be encouraged to draw up a code of practice for supplying as much information as possible by less formal means. [para. 5 ]

(d)Local authorities should not respond to the Act by avoiding recording their relationships with outside bodies in writing. [para 6 et. Seq.]

(e)The Act should be amended to make all commissions of enquiry subject to the Act by default. Where there is a case for exempting a particular commission, this should be debated in Parliament. Use of the negative resolution procedure is not satisfactory. [paras. 9 and 10]

(f)Vexatious requests tend to bring the Act into disrepute, and are therefore not in the interests of responsible users. The ICO should be encouraged to draw up a definition of the term ‘vexatious’ which it will apply as necessary. The ICO should encourage subject organisations to use this wording in responding to vexatious requests. [para. 11]

2. I have used the Freedom of Information Act on a number of occasions from 2005 to date. In no case was I seeking to make money by publishing the results, though I was seeking to draw public attention to examples of public incompetence, lack of accountability etc. Until recently I have generally, though not always, obtained the information sought. Recently however there have been several cases in which, although information was provided in accordance with the Act, I have not been able to get to the bottom of the matter under investigation. Although I could have persisted, I felt that the value of the information was time limited, and so I gave up. In describing these cases below, I am NOT asking the committee to look into the individual cases but am merely seeking to illustrate the difficulties.

3. Recent experience has confirmed that local authorities are likely to provide more information than was explicitly asked for. That is, they respond to the spirit of the request rather than the letter. This is often helpful. Government departments seem less likely to do this. The requester therefore needs to be extra careful in the way the request is worded. [conclusion a)].

4. In the last seven months I had to wait for almost exactly 20 working days for each response. Previously I could on average expect a response within a week. The law is still being observed, and there are several possible reasons for this trend. However where a complicated matter is being investigated, and follow up questions are needed, the delay can get frustrating. [conclusion b)]

5. The first case I wish to mention concerns the Weymouth Transport Package carried out by Dorset County Council as the highway authority, but with 95% government funding. It was intended inter alia to meet the Olympic Delivery Authority’s requirement for a reliable and short journey time for competitors and officials between London and the sailing venue. The package was sold to the public as delivering lasting benefits to the community. Many people questioned this claim; geographical considerations make any real improvement very difficult to achieve. In fact the project caused much disruption, and threatened the viability of a number of local businesses. For months the subject was rarely out of the local press. A colleague and I decided to look into how decisions had been made. I started by looking at the business case as published on the website. There were some curious features and some gaps in the information. I phoned the appropriate person in the highways department but did not get the information I was asking for. I therefore put in the first Freedom of Information request, and my questions were answered on the deadline date, but the answers only posed further questions. In all we submitted four requests over several months, but have still not got the whole story. In the meantime the project has finished and the public outcry has died down. It is not relevant to this submission to outline our tentative views, but I feel that Dorset County Council would be seen in a better light if they had been more open and honest from the outset. Certainly if my informal questions had been answered much time and effort would have been saved. In short, it was not that the requirements of the Act were onerous, but rather that the culture of the organisation made life difficult for everyone.

Organisations subject to the Act can create work for themselves by failing to respond to less formal requests for information. This could be a factor in the increased use of the Act. The ICO should be encouraged to draw up a code of practice for supplying as much information as possible by less formal means. [conclusion c)]

6. My second example also concerns Dorset County Council highways department. In November 2011 the main road into Weymouth was closed. I believe that this incident led to a significant loss of trade in Weymouth. I wondered why, instead of closing the whole road, SGN could not have moled under the road, and I phoned DCC highways department to ask. I was told that they had asked, and the answer was that this could not be done because the pipe was 6 metres down and there was a safety issue. This made no sense to me. They had to dig a 6 metre deep trench regardless of the method used.

7. I therefore put in a Freedom of Information request asking for all correspondence and minutes of meetings. I have had a response with a number of emails and photos, but there was no reference to the possibility of moling, or indeed any questions by DCC on the least disruptive way of proceeding. If questions were asked it seems that no written record was kept. Why not? You would have thought that it would be in DCC’s interest to demonstrate they were concerned that they were trying to look after the public interest. It would appear from a House of Commons research note: Standard Note SN00739, Published 08 November 2011, that they do have powers to do so.

8. It has been suggested to me that some organisations have reacted to the Act by deciding not to keep written records of things that other considerations suggest they should. Some use this as an argument against the Act.

Local authorities should not respond to the Act by avoiding recording their relationships with outside bodies in writing. [conclusion d)]

9. My final example concerns the Independent Commission on the Banking System (ICB). Creating a stable financial system is vital for the future of our economy, and this inevitably involves banking reform. The ICB recommendations affecting stability related mainly to ‘ring fencing’ a watered down version of the separation of retail and casino banking proposed by Prof John Kay, and the smart money is saying that the banking lobby will succeed in further watering down the proposals. On macroprudential policy (the province of the Finance Policy Committee) it mentioned only capital ratios. Two radical but well argued proposals were summarily dismissed in the interim report and not mentioned in the final report. One of these could have been implemented as an instrument of macroprudential policy within a couple of months. No arguments were presented in support of these judgements.

10. I was puzzled in that at least one member of the commission had published views that appeared to be in support of the latter proposal. I wondered what influence the secretariat (composed of Treasury staff) had had. I submitted a Freedom of Information request. I was informed that the commission was not subject to the Act but that when the commission was closed down, all papers would be sent to the Treasury and once that had happened they would be subject to the Act. In due course, I therefore submitted a request to the Treasury. I asked for any evidence used to back up the judgements to dismiss the two proposals. Of course I got the reply that all the evidence (ie the submissions) was published on the commission’s website—which of course is the case. I should have asked for the evidence and any analysis thereof! I could have submitted a revised request. However I decided that the time to pursue this matter would have been immediately on publication of the interim report, had the commission been subject to the Act. As it is, I have to accept that the commission served no useful purpose.

I now believe that any such commission of enquiry not subject to the Act should be dismissed as a whitewashing exercise.

The Act should be amended to make all commissions of enquiry subject to the Act by default. Where there is a case for exempting a particular commission, this should be debated in Parliament. Use of the negative resolution procedure is not satisfactory. [conclusion e]

11. Recently I have been submitting Freedom of Information requests via the website: http://www.whatdotheyknow.com/. This allows you to see other requests made on the same subject. I saw a number of requests made to the Treasury that I would regard as vexatious. Basically, although I had sympathy for the requesters’ concerns, they were not seeking information. They were seeking to change the views of the Treasury! The responses to these queries did not call them vexatious but made some effort to answer the question. This chimes with the observation made in the MoJ memo that section 14(1) was little used. The trouble is that (as well as wasting the time of the subject organisation) requesters who do not understand the purpose of the Act might feel the answers to be inadequate.

Vexatious requests tend to bring the Act into disrepute, and are therefore not in the interests of responsible users. The ICO should be encouraged to draw up a definition of the term ‘vexatious’ which it will apply as necessary. The ICO should encourage subject organisations to use this wording in responding to vexatious requests. [conclusion f]

January 2012

Prepared 25th July 2012