Justice CommitteeWritten evidence from Ian Benson

Summary

Charges, limits and quotas would eliminate the repeat requesters who scrutinise the public sector. I do not believe that authorities are concerned about cost. Most spend far more on PR than FOI. I think authorities regard repeat requesters as a threat they wish eliminated.

Background

On a voluntary basis I run the websites UKFutureTV.com and AcademicFOI.com. I have submitted over 2,000 FOI requests and dealt extensively with the ICO, Tribunal and Scottish system.

Overall Assessment

80% of authorities are satisfactory. Responses arrive promptly. Exemptions are used appropriately. Redactions are carried out. Formalities appear. Responses are a credit to them.

10% of authorities are disorganised. Chasing up is required. Lines of argument are used without quoting sections. Redaction is overlooked. Formalities are missed.

10% of authorities are obstructive. Most requests are refused. Simple requests are claimed to be over limit. Manual filing is blamed. Anything awkward is labelled vexatious.

The problem is that the bad practice often lies within the disorganised or obstructive authorities.

UK Future TV

90% of universities refused to divulge their filming regulations. Sheffield Hallam made unfounded allegations, banned staff from giving interviews and urged other universities not to participate. I made FOI requests to investigate and circulated a rebuttal to all universities. When challenged both management and governors at Sheffield Hallam refused to answer. Using FOI I obtained the exact rules on interviews at all UK universities. These were frequently different to the statements from press offices. Sheffield Hallam had no right to ban their staff.

I interviewed 200 academics from 20 universities about the likely future developments in fields from Astrophysics to Zoology. These views are not published anywhere else. More than 500,000 people have visited the website and it has been chosen as one of the first video websites to be included in perpetuity in the British Library Digital Archive. Future historians will be to watch the videos and understand how some of our cleverest people thought science would develop.

Without FOI the project would have been bullied out of existence.

Plymouth University

They adopted the slogan “the enterprise university”. Under FOI I found out that in 2008 only 2 graduates out of 10,000 had started a business with university support. The university had no full time enterprise experts and did know whether any of their 3,000 staff had ever run a business. Other universities have more than 30 enterprise experts and support more than 500 start ups. I believe the slogan is highly misleading.

The story appeared in the Plymouth Herald, Times Higher Education (THE) and The Guardian. A few days after the story appeared in THE the university banned their staff from placing recruitment advertising in THE. I received many appreciative comments from people concerned about universities misleading young people.

The ICO took a different view and described this as:

“using information obtained under FOI to disrupt the functions of a university”; and

“your deliberately disruptive behaviour”.

FOI is useful to probe claims by universities in their £200M marketing campaigns.

Academic FOI

Academics work in narrow fields with limited employment options. If they are pushed out it can be impossible to get work. University managers in HR, IT, finance, marketing or estates can work anywhere. Universities are less scrutinised than other sectors such as the NHS or local authorities. Staff risk their livelihoods and students risk their qualifications by speaking out or raising issues.

Gagging Orders

In the three years to 2009 more than 5,500 university staff signed gagging orders preventing them from discussing problems within HE. Total payments of £4.4 million were made to these staff whilst £7.1 million was spent on legal fees. 810 staff submitted claims to employment tribunals. The majority were settled before a hearing using a gagging order.

Bullying

Over three years 1,957 university staff asked for help with bullying. Only 20 staff were dismissed for bullying whilst 137 victims gave up their jobs. There was a group of 41 universities where 430 staff sought help with bullying. The 169 investigations found no evidence of bullying in any of the cases.

The bullying report was read by 26,000 university staff. Research findings will be cited in “The Law of Higher Education”. The project has been cited in more than 100 online references. Invitations have arrived from journalism courses to explain how the project operates.

Staff Response

Within the first month 1,500 people got in touch to offer support, encouragement or suggest topics. 40% of suggestions are about human resources. 20% are systemic problems within higher education. The remainder are scandals involving financial, academic and sexual misconduct.

For many issues there are no regulatory bodies. The project has become much larger than I envisaged and could easily utilise 10 staff. I am looking at benefactors, volunteers and systems so that if FOI survives the project can be developed to it’s maximum potential.

Obstruction

The project was discussed at four successive joint meetings of university administrators. They commissioned a 5 page legal strategy on ways to thwart it.

FOI officers got together on seven different HE bulletin boards to discuss tactics through which my FOI requests might be refused, delayed or made less useful.

As the Act provides I divulged to a small number of universities that I suffered from keyboard strain issues. They posted this private medical information on the bulletin boards and started a thread about how to make information less convenient hoping to worsen my condition. The discussions included how to print badly, scan badly, copy badly and use tiny font sizes.

FOI staff indulged in “Exemption Roulette” whereby each agreed to each try a different exemption in the hope of finding one that stuck.

The FOI officer at Southampton University looked up my business websites and phoned me asking how I made my living. Others discussed who my business clients were in case they could stop them funding me and whether they could find an official body to report me to.

The ICO refused to accept the evidence of obstruction or take any action.

Survival

I investigated this obstruction under FOI and publicised the universities tactics to their staff. By the time I had finished it is fair to say that many FOI officers and bosses were afraid to even type in my name let alone include it in a derogatory sentence.

Due to FOI the project survived despite the upper ranks of academia closing against it.

Repeat Requesters

Repeat requestors are frequently derided by authorities, the ICO and Tribunal. There is a collective public sector view that a big cheque and zero interference is the right way. That may be true 99% of the time.

In the other 1% the Harold Shipman’s, Fred Goodwin’s and Stafford Hospital’s thrive and the public sector lets us down. If anybody is going to remedy the gaps in scrutiny of our public sector it is the repeat requestors gathering unresolved problems and asking awkward questions.

Vexatious Requests

Authorities don’t classify requests about successes as vexatious. Requests about major frauds are often declared vexatious. That is unjust. What constitutes a vexatious request is not defined but the guidance and many decisions have confused matters.

I judge vexatious requests by looking back a few years and imagining what the public sector would have thought of someone making FOIs saying that their local GP was murdering hundreds of patients and their high street bank was risking the largest collapse in financial history. I can hear the derision, scorn and mockery before they stamped V for Vexatious across the request.

Salford University labelled a request for the costs and usage of executive cars as vexatious. The ICO said “the requester offers no evidence to support her contention that the limousines were superfluous”. Requestors do not require evidence.

The Salford refusals were about travel and phones. They looked like each would take about 15 minutes to answer. Gut instinct tells me the amounts were high. A dignified solution would have released 25% of the responses. Instead the University appeared shifty and the ICO looked like they had forgotten what the Act says.

One Tribunal stated that they had not inspected the information. If I was judging a request about a lunch I would look at the receipt. If it said Greggs £2.50 I would be more likely to consider the request vexatious. If it said Lucy’s Lapdance Club £450 then I would be less likely to deem the request vexatious.

There is too much focus on side issues rather than information. Too many FOI and ICO staff lack any intuitive flair for what are intriguing questions and revealing answers. If an unconnected person would raise an eyebrow when told the answer then that request is not vexatious.

Where an authority has managed to waste money in many different ways then all that information should be released. It is irrelevant how many requests there are, who submitted them or how much overtime it takes to respond.

The Scottish system defines vexatious requests as “submitting an FOI request for a reason other than obtaining the specified information.” Using that principle the vast majority of ICO and Tribunal decisions are entirely wrong.

The outcome of the Salford requests was that someone facing both an employment tribunal and a libel case from the same university had to face both without the benefit of so much as one page of the information he requested under FOI. I believe that the case set an all time low in the already dubious history of the ICO.

Authority Staff

Authority staff are best placed to spot bad practice but reluctant to submit requests for fear of reprisal. Requests could be sent via the ICO for redaction and forwarding. This would allow authority staff to use their rights.

Procurement

Authorities complaining about businesses requesting procurement information are obviously failing to provide sufficient detail on their websites. If they published more information they would get fewer requests and could direct the rest to their website under Section 21.

Record Keeping

I was surprised to find out that Cambridge University first installed a computer system for personnel records in 2008. If there are significant costs attached to FOI then they are probably because of out of date or disorganised record keeping systems.

Inappropriate Uses

Authorities have cited inappropriate uses of the Act without giving examples of what they like. The best FOI request would be the one where the revelations were so shocking that the authority was disbanded the next day. If people don’t appreciate that then they should not be working in FOI.

Guidance Notes

There are huge inconsistencies between the guidance notes and ICO decisions.

The notes appear to have been written in good faith by someone trying to be fair.

Some decisions are little more than prejudice and speculation. Many are biased. Claims from authorities are treated with reverence whilst requester’s reputations are frequently trashed quite carelessly. I do not think it will be long before a requester sues the ICO for defamation.

The ICO should re-write their guidance based upon their decisions.

Written Advice

It takes five months to get answers from the ICO and you need to chase persistently. It is better to submit queries as FOI requests.

Subject to redaction the ICO could publish a disclosure log of written advice they have issued. That might provide a worthwhile resource which reduced their future workload.

The Scottish Information Commissioner issues responses within three days.

Decision Process

The ICO will discuss a complaint with the authority, tell them what they will uphold, suggest lines of argument, invite reconsideration and publish the decision without contacting the requester.

I took four different authorities quoting four different exemptions to the ICO. Nine months later 4 decisions arrived all upholding the same exemption. Three of the authorities had switched exemptions without comment from me. If they had contacted me I could have withdrawn three complaints and saved them all that work.

Allegations against me and supposed findings of fact were submitted by authorities and published without comment from me.

The Scottish Information Commissioner runs every exemption change, line of argument, finding of fact or allegation past the requester. Other than the final decision nothing else within the notice comes as a surprise.

Naivety

Many authorities avoid releasing embarrassing information through payoffs to employment tribunal claimants, staff gagging orders, libel actions and advertising withdrawal threats to local media. It is naïve in the extreme to assume that these authorities are not abusing FOI as well.

I do not believe it is coincidence that the highly respected first Scottish Information Commissioner spent much of his career as a charity campaign manager challenging government departments rather than working within them.

Ultra Vires

The ICO are pursuing a raft of measures to restrict the scope of the Act whilst the Tribunal are failing to hold them to account. There will always be differences in interpretation but you would imagine the ICO would sit somewhere in the middle. Instead the ICO are far more restrictive than most authorities. If the requests currently released went via the ICO I think more than 50% would be refused. The ICO would have rejected 75% of the 2,000 requests I have made.

144 universities responded to requests whilst 1 refused citing aggregation. The ICO backed that 1 university and stated:

“I appreciate that an adverse formal public verdict (one published on our website) is likely to have a very detrimental effect to your website”.

The Tribunal ruled that aggregating requests on the basis of an “overarching theme” was unfair as it is not a term in the legislation. This decision is now being regularly cited. Without this precedent journalists investigating complex topics would have been severely hampered. This policy was not in the Act, not used between 2005 and 2008, never appeared in any guidance but only emerged in 12 decision notices from 2009 onwards.

The vexatious request decisions reveal numerous ultra vires ways the ICO are trying to divide requesters into deserving and undeserving. None of this is in the Act and all of it is biased towards authorities. The ICO are steering to Act work for occasional requesters but totally frustrate anyone trying to investigate complex issues.

Freedom of Speech

There is an ICO and Tribunal bias against people who run critical websites. Freedom of speech within the law should not affect access rights in any way.

Sidelining the ICO

I gave up using the ICO. Instead I named and shamed authorities. I used the majority response as a proxy for the correct one. I would highlight the five authorities out of 100 who had refused. Once my website was being read widely appearing with a refusal became too embarrassing for authorities. I was able to drive compliance rates up towards 100%.

Publishing responses highlighted errors. Tip-offs enabled me to go back and demand reconsidered responses. Frequently fresh answers resulted.

Tribunal

Tribunals were supposed to contain one public sector member and another who reflected requestor’s interests. In reality 90% are career public servants. That shows up in decisions.

I asked Sheffield Hallam University who publish a quarter of their staff e-mails for a complete list. They refused stating that no university published more than a quarter. Untrue. Dozens publish over 60%. The ICO concluded that no university published more than a quarter. Still untrue.

I sent the Tribunal statistics and a sample list. They upheld the ICO decision on the basis that no university published more than a quarter. Yet again untrue. It took 18 months and a 600 page bundle to produce a decision that any kid with internet access could disprove. What is the point of a Tribunal that appear unable to read the evidence or check the facts.

An identical request was submitted to the Scottish Information Commissioner. Early on they looked up the websites. Within 4 months they published a decision to release the list.

Charges

There is a suggestion that media outlets should pay authorities for FOI requests because otherwise the authorities are supplying research work free of charge.

Media has always been a combination of commerce and public service. It is much easier to make money publishing news feeds, press releases and celebrity gossip than doing FOIs. The sheer slog of FOIs are very much more at the public service end of media than the commercial.

Many of the media outlets that submit FOIs accept recruitment advertising from the same authorities. If FOIs became chargeable the media outlets could increase their public sector recruitment advertising rates accordingly.

The reason that authorities send out press releases is so that they can communicate with the public but pass on the entire cost of paper and transmitters to the media outlets.

Authority A sends out one single succinct weekly press release containing only significant factual information. Authority B sends out 100 press releases per week which are lengthy, long on adjectives, short on facts and about largely trivial matters.

Authority A are working in a responsible manner whilst Authority B are wasting the time of journalists who have to plough through large volumes of meaningless press releases. It would be fairer if Authority B paid compensation to the media each time they sent out a press release and then a big bonus on top if the media outlet could prove that the press release was inaccurate.

If that scheme was introduced then charging media outlets for FOI requests might start to sound more reasonable.

Multiple Requests

Universities complain about requests which go to all 145 universities and suggest ways of eliminating these. If I publish that Notown Council are “a bunch of fraudsters” they are cannot sue me for libel. The Chief Executive might personally but not the authority itself. If I publish that Notown University are “a bunch of fraudsters” the university itself can sue me for libel.

I might have a FOI response from Notown University revealing 100 prosecutions for fraud. On it’s own that doesn’t wholly justify my comments. If I FOI all other universities and they confirm back that they have all had zero prosecutions for fraud then I am on much safer ground.

Requests to well run authorities are necessary as benchmarks of good practice to protect against libel actions. Instead of seeing such round robin requests as a nuisance to be extinguished authorities should regard them more as a civic duty helping to preserve integrity in other parts of their sector.

Funding

Universities wish to leave FOI and describe their new funding as “private sector”. The forecast is that 50% of graduates will never settle their debts so universities will benefit from both the subsidised borrowing and the writing off of debts.

If universities want out of FOI they should give up access to public loans. They could start providing their own loans and then we would finally find out which students from which courses they genuinely believed would be able to secure decent jobs.

FOI allows monitoring of the costs of higher education.

Competition

Universities claim to be competitive but new entrants face enormous barriers.

Other industries charging identical prices would be prosecuted as a cartel.

FOI can examine the problems stemming from the lack of competition.

Scrutiny

Businesses scrutinise each other’s claims. Universities could start pulling apart each other’s claims, courses and outcomes. Instead universities never criticise each other.

At high ranking universities academics can use research income to hold the university to account. At lower ranked universities hourly paid lecturers have zero clout with management.

When I enquired about contacting the governors at Plymouth the webpage listing who they were disappeared off their website within an hour.

FOI allows the scrutiny of higher education that neither universities nor government do.

Research

Universities raise concerns about the effect of FOI on research but there is only one case on the ICO website of a university using a Section 22 Future publication exemption.

Academics typically carry out research themselves but have to give 40% of their grants to their universities. We should be able to ask if the 40% is being well spent.

Would it be better if academics operated outside of universities? At the moment only big cities and university towns benefit. If academics were free to organise their own facilities they might choose lower cost, less congested parts of the country.

FOI can ensure that publicly funded research benefits the public.

Course Materials

Universities have copyright on course materials that is unaffected by release under FOI. It is vital that outside experts can check whether what is being taught is appropriate.

FOI release of course materials helps maintain standards.

Cost Levels

Out of £27,000 roughly £3,000 is the exams whilst £24,000 is tuition costs.

Employing 100 lecturers to teach much the same courses at 100 different locations is not efficient. If Maths was taught in Manchester and Biology in Birmingham you could reduce tuition to say £6,000.

You could abandon lecture theatres, use online videos and reduce costs down to say £1,000.

FOI can help ensure value for money.

The Future

In 25 years time the world may have only two undergraduate universities—Apple U and Google U.

The 500,000 people employed in UK universities may well go the same way as the chemical, shipyard, textile and mining workers. Britain’s university bosses are spending half a billion pounds each year on new lecture theatres to deliver education in much the same way as they did it in the 14th Century. Of 25 recent articles by university bosses supposedly on the future only 2 actually looked forward.

FOI can help ensure our universities survive.

Conclusions

Do not restrict the Act through charges, costs limits or quotas.

Do not allow universities to escape FOI.

Clarify exactly what a vexatious request is.

Overhaul the ICO from top to bottom.

Reshape the Tribunal to reflect requester’s interests.

April 2012

Prepared 25th July 2012