Justice CommitteeWritten evidence from Nottingham Trent University

Whilst the Freedom of Information Act may have been intended to operate in the public interest by subjecting public bodies to increasing transparency and accountability, it has, in our experience, been too frequently used by some whose motives are far removed from the general public interest.

This has resulted in the diversion of valuable resources to respond to what seem to be frivolous requests.

In some cases, requests for information have clearly been made because the enquirer is in some way dissatisfied over their dealings with the institution, and so submit FOI requests purely to cause irritation; when a request is answered, the enquirer simply submits further requests on other topics to continue the irritation. In this way, the Act provides malcontents with a means to divert an institution’s time and resources simply to satisfy a desire for revenge.

In other cases, the enquirer is clearly engaging in speculative “muck-raking”, requesting information on a particular topic in the hope of achieving a journalistic scoop or otherwise demonstrating that an unfavourable opinion they hold about the institution (or the sector) is justified. When the enquiry does not yield the hoped-for revelation of waste, inefficiency, corporate corruption or other malpractice, the enquirer simply embarks on another speculative and (for the institution) time-wasting trawl.

Whilst the Act provides exemptions that permit enquiries to be legitimately rejected, we believe that it offers insufficient protection against the type of frivolous and nuisance requests described above. In particular, the test by which an enquiry may be deemed vexatious fails to address the problem of a nuisance enquirer who submits numerous frivolous requests on different topics, and is thus able to cause a substantial drain on the organisation’s resources for no good purpose.

In our view, the Act has been applied to a wide range of public bodies without any apparent acknowledgement of the material differences in their structure, operation, oversight and existing accountability arrangements. The Act was clearly intended to apply to the activities of national and local Government; the competitive environment in which HEIs operate, where students (as customers) and other clients can choose which HEI they do business with, makes them very different from governmental organisations. This is clearly evident in the extent to which the various types of organisation are dependent on the public purse; whilst most local authorities received the vast majority of their income from taxation and/or government grants, our institution (like most other HEIs) receives only a minority of its income from public sources (approx 40% in 2010/11) and this proportion will continue to decrease dramatically as Government policy makes further significant changes to the HE funding landscape over the next two to three years. This fact alone (irrespective of other arguments) prompts the question as to whether HEIs should continue to be subject to the Act.

The Government has recently announced its intention to extend the FOIA to cover around 200 other organisations; if HEIs are to remain subject to the Act, then we would wish to see it also apply to those private providers who are, or become, providers of HE to students who are eligible for public funding support, to ensure that there is indeed a “level playing field”.

January 2012

Prepared 25th July 2012