Justice CommitteeWritten evidence from Philip Mason

After using the FOI Act for some years as an ordinary member of the public, I find that it is even more important now to be able to use the facility of Freedom of Information especially in light of the wide privatisation of some services.

It is a long journey to try and understand the complexities of the system for the purpose of transparency and accountability of an organisation.

By viewing the draft transcript has been extremely useful (5 out 7 sittings) and I appreciate the opportunity to express my views by referring to the oral evidence.

Non-public Authorities and the Transfer of Roles to the Social Enterprises and Private Sector

With the steady increase (over decades) of various quangos and the transfer of services to the private sector such as Housing Associations, Health Services (contractors) and those bodies performing a public function, I feel that the public are not getting a fair deal with the FOI and accountability.

One area that concerns me are those services providing housing with the transfer of housing stock from public authorities to the function of trusts, groups and associations.

When I appeared in front of a complaints panel in 2006 with my Housing Trust, the members of the panel were ignorant of the FOI (and also the Human Rights Act). They were not impressing in other ways either. I was also informed later that the spirit of the Freedom of Information Act would be honoured, which is not the same, otherwise why have the legislation. People will not know how much information they may need at the time.

My own Housing Group have informed me that 45–47% of public funding goes into the organisation. This may fluctuate from year to year. This is a significant proportion of tax payers’ money. When I approached the Institute of Housing of any figures or statistics on public funding, they could not provide them, which I was surprised of.

It can be said of the rail companies, Network Rail and many other organisations that receive public funding to different degrees. They seem a vital public service, but going private or as a Ltd Company seems to tread the grey area. It privatisation is so much better, why do peoples’ rights to accountability have to be compromised?

These issues have been touched on by the Committee sittings including the question of the use of Sections 5 & 7. Jack Straw in his giving of evidence of 17 April 12 found it reasonable to say that more public services had been delegated to the private sector since 1997, but didn’t seem to take responsibility on behalf of his government to explain why they did not make sure that some organisations did come under the FOI. He mentioned sections 5 & 7 being used. I have been under the impression that on this occasion that Housing Associations were attempted to be included under the FOI. They were refused (subject covered in Q 323 and 324 page 2).

The subject was brought up in Q 110, in the 28 February sitting, pages 7, 26, 27, Q 190, 191, question 186.

I agree that in relation to contractors, they should also come under the FOI.

I also note that in Q189 of 28 Feb sitting (page 25) the Chairman of the Committee stated that GPs surgeries do not come under FOI. This was also confirmed by Sue Shipman of the Foundation Trust Network (27 March 12, page 22 Q. 304). This has been stated by the Information Commissioners helpline to be untrue. To what extent there are restrictions I don’t know.

Other references to the subject of private bodies serving a public function have been mentioned in the 21 Feb sitting page 12, Question 42, also Q 84, Q 85.

Other further references include 27 March sitting Q 300 page 21 and page 22, Q 305.

The fact there are grey areas is no excuse to allow the setting up and the continuation of no accountability through the absence of FOI requires serious addressing of the issue. I feel personally, in some respects that the rights have been stolen by deception. The FOI act took from 2005–2005, long awaited but delays by Tony Blair and associates dragged it out.

Enforcement of Breaches

I do not think that the present system of enforcement of breaches is adequate. As a lay member of the public I am finding myself using the process of Freedom of Information vital for a number of reasons—mainly to seek understanding in how an authority works.

Around 2007–08 my own local District Council (Purbeck District Council in Dorset) were found to breach the FOI Act but no penalties were served because of the system. The same District Council were found to be in breach of maladministration. The fact that the Ombudsman knew of the breaches, it served little effect.

The council failed to implement a link person to identify a Freedom of Information request including a 10 month delay from the Planning Dept and the Chief Executive’s Office.

I felt that the Council really did not care because the punishment was too lenient by both the Ombudsman and the Information Commissioner’s Office.

The said Planning Dept seemed to have a policy of not only failing to recognise an FOI request but using their approach of not answering questions because it was “too time consuming” thereby breaching the FOI Act again in further correspondence after the previous breaches. The culture problem is still there because it is ingrained in the psyche of the institutions, until more severe penalties are imposed. It also raises questions about the weak enforcement of the Ombudsman in local Govt that appear to have a too cosy relationship with public authorities. Their suggested compensation of £100 is totally unrealistic as it doesn’t even cover my costs never mind the time.

Many public authorities do not screen possible FOI requests and the link between customer service as a radar is vital to good service delivery.

I agree with the already submitted evidence (5 of 7 sittings) that section 77 needs to be improved on, because of the time limitation periods which result in enforcement/prosecution being penalised because of out of time. The six months time limit needs to be looked at for Magistrates Courts.

The improvement of Disclosure Registers would help but if this means more resources are needed all around ie enforcing process, then so be it.

The fact that no prosecutions have been applied is in itself ineffective, noted by evidence given.

References 14 March 2012 Question 220 page 9 Christopher Graham; Maurice Frankel Q 30 page 8 of 21February sitting.

I agree with Maurice Frankel that there should be statutory time limits, without open ended extensions for public interest and further punishment for those being deliberately obstructive.

There needs to be a statutory time limit for internal review (reply to Question 25).

I have not had experience with Govt departments but I take note of certain departments being obstructive and not forthcoming with information such as the Cabinet Office confirmed by Christopher Graham of ICO.

I agree also that statistics should be published by local authorities through code of practice under Section 45 (ref Q 39 response by Alex Skene page 10 of 26 February sitting).

Charges for FOI

As the majority of requests are made by members of the public I do not think that they should have to pay especially when these people are on a limited income. I am aware that some people appear to be an individual but turn out not to be the case. Some people will abuse the system.

FOI can be more complex and also it overlaps when a complaint against a public authority is made. Sometimes you have to rely on FOI to get the full detail of the story rather than part of it.

I note that sometimes authorities do not improve the publication scheme to help the requester thereby causing more work for themselves and possible cost implication for the requester.

The help and advice (section 16) aspect of the service will vary, which I have found. Some people are quite plainly poorly trained or don’t have the experience which comes back to resources of the public authority concerned. This would also refer to good record keeping (Ref p7 of 21 February 12) Q 62.

Education

As a member of the public I rely on the ICO helpline and the internet which I found is absent in the 5 of the 7 draft reports (transcripts) I’ve referred to of the Select Committee sittings is that there are no local courses which can encourage and guide people apart from the different organisation such as Unlock Democracy available. You can learn other ways by having face to face interaction by doing local courses. Memorising parts of the Act is to do with experience and sometimes you need interaction with others on the way. Freedom of Information campaigns have limited resources. A national network should exist for Education. Each person’s situation can be different.

So I was disappointed Education was not covered in this way at the hearings.

June 2012

Prepared 25th July 2012