Justice CommitteeWritten evidence from Alistair Sloan

1. This is a written response to the Justice Select Committee’s call for evidence as part of the post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA). I am a member of the public who uses Freedom of Information legislation primarily for my own research purpose and have in the past used FOI responses as the basis for posts on my internet blog. My evidence is based on my own experiences of having made requests for information under the FOIA and also on observations I have made of requests that other individuals have made under the FOIA.

2. I am not of the view that there is a massive need for change to the Freedom of Information Act. On the whole it appears to strike the right balance between the release of information held by public authorities and withholding information for legitimate purposes. However, there are a number of changes that could be made to improve the legislation and ensure that existing information rights are maintained and not lost, particularly as the public sector is changing the way in which it is organised in order cut operating costs. I believe that most of the necessary changes are in the way in which the legislation is enforced by the Information Commissioner’s Office (ICO).

3. The first area where I would like to suggest change is required is in the timescale for brining prosecutions under section 77 of the 2000 Act. The way in which the Freedom of Information Act operates practically means that the time a section 77 breach is identified it could very well be out with the current statutory timescales for brining a prosecution. The Scottish Government has identified a similar problem with the equivalent provisions of the Freedom of Information (Scotland) Act 2002 (FOISA) and as part of their consultative process on FOISA they are looking to extend the 6 month timescale to 12 months.

4. I am not suggesting increasing the time limit for prosecutions as some way to “get at” public authorities. However, enforcement is key in making this legislation work and the Information Commissioner must have a full range of tools that he can use to ensure compliance by public authorities.

5. The vast majority of requests that I make are through FOISA rather than the FOIA. This has helped highlight some of the difference between the two regimes and allowed me to consider where both pieces of legislation could be improved. One area where the FOIA could be improved to make the practical realities of making a request for information better is providing a statutory timescale for responding to a request for review. Currently, there is no statutory requirement for a public authority to conduct a review other than it must be done in a way that allows a prompt determination of the complaint (Section 45 code). One observation that I have made between the two FOI regimes is that under FOISA the internal review procedures are to be found within the main Act (Sections 20 and 21). I would suggest amending the FOIA to include provisions on the operation of a review process placing them on a statutory footing.

6. I would strongly suggest providing a statutory timescale in which the conducting of a review should occur. Under FOISA that is currently set at 20 working days. I note that the Information Commissioner’s Good practice Guidance (number 5) that covers the timescale of reviews suggests that 20 working days should be adequate for most requests for review. His guidance also goes on to say that only in the most complex cases should reviews take longer and in any event they should not take longer than 40 working days. However, in my experience I have often found myself having to contact public authorities after the 20 working days have expired for an update as to when they expect to respond (even where the review is not, on the face of it, a particularly complex one). I have two examples of this happening which are publically available on the internet which members of the select committee might find useful to look at.

7. The first example came from a request made to Cumbria County Council and can be viewed here: http://www.whatdotheyknow.com/request/compliance_2. The second was a request made to Bristol City Council and that request can be found here: http://www.whatdotheyknow.com/request/identity_checking.

8. I would have been less annoyed if the public authorities above had written ahead of the deadline to advise of a delay in responding to the request for review. Indeed, the Information Commissioner’s guidance suggests that public authorities write to applicants where an internal review cannot be completed within the initial twenty working days following its receipt.

9. The above are by no means the only examples of this occurring with public authorities to whom I have made requests to under the FOIA. I cannot be sure as to why requests for review take as long as they do and why some authorities even appear to fail to comply with the guidance issued by the Information Commissioner. However, I am of the view that placing internal reviews onto a statutory footing with a statutory maximum timescale for responding will probably improve the situation. There are of course a very large number of public authorities subject to the Freedom of Information legislation and I am sure that there are numerous examples of good practice out there.

10. Another matter that has caused a lot of frustration is the extension permitted to public authorities to consider the public interest test. I have experienced cases where it feels more like the public authority is using this as a delaying tactic than for what it is actually exists or where they have simply applied the provisions inappropriately. I raised this matter with my Member of Parliament and he in turn raised this with the Government by way of a written question in Parliament.1 No such provision exists under FOISA. All requests must be responded to within twenty working days from the date of receipt, and this includes considering the public interest. I would suggest removing this allowance from the FOIA, or at the very least providing for a statutory maximum for the period of time by which the public authority can extend the original twenty working days. The current open-ended approach produces uncertainty for those using FOI and indeed for the Information Commissioner about just when a public authority is in breech and when he can accept a complaint.

11. The FOIA creates a general right to information held by public authorities. It is quite right that on some occasions information should be withheld because the harm that its release would cause outweighs the general principle of being open and transparent. It strikes me that under the FOIA the “harm test” is a rather low one and permits a public authority to withhold information where the harm is only slight. The similar provisions under FOISA requires there to be “substantial prejudice” to a specified interest rather than “prejudice” to a specified interest. The guidance on the matter does suggest that the Information commissioner and the Government expect there to be a substantial prejudice before the harm outweighs the public interest in releasing the information and so it would make sense to put this onto a statutory footing and amend the legislation.

12. There has been some suggestion that a fee should be introduced for those making FOI requests. This is something that I would strongly caution against. Research conducted for the Office of the Scottish Information Commissioner gives an example of what might happen if people were made to pay for information. That research2 suggests that around 64% of people in Scotland would be deterred from making a request for information if they were to be charged for it. I submit that this would damage the legislation and would ultimately defeat the purpose of the legislation. The current fee regulations are sufficient. It should be noted that on the whole public authorities choose not to charge fees where they probably could and certainly public authorities should be persuaded not to charge a fee unless absolutely necessary.

13. The FOIA requires that public authorities produce publication schemes. I suggest that these are redundant and are a waste of time and money. I would suggest reforming this aspect of FOI and placing it in the hands of the Commissioner to direct public authorities as to the types of information that they should make readily available to the public. Pro-active disclosure should be the ultimate aim of FOI and any other “Open Government” projects. The more information that public authorities proactively make available the more accountable they become. There is, of course, nothing stopping a public authority from publishing information beyond the scope of such directions, but the same minimum information should be available from all public authorities. Perhaps, the directions would need to be slightly different depending on the function of an authority (eg the information that a police force and a local authority should publish proactively will be different in some respects). At all turns we should be encouraging public authorities to be more proactive in their disclosure. I would suggest that a good measure of whether FOI has been a success is that the number of requests submitted falls as a result of public authorities being more open and accountable proactively.

14. There is, I submit, an argument for requiring larger public authorities to publish a disclosure log. Many public authorities already do so and from the point of view of a requester it makes things a lot easier. If I am looking for information that has previously been requested from a public authority it saves both the public authority and me time if that is something I can easily access. Not having worked for a public authority I cannot comment on “repeat requests” with any great authority. However, I suspect that public authorities do receive a number of requests that are asking for broadly similar information. I suspect that this would occur around particularly high profile events. I certainly have anecdotal evidence of this being the case from FOI Officers who I have spoken to in the course of my own requests.

15. Public education could be something that helps FOI work better. It certainly appears that most people are now aware of their basic rights under FOI. However, with all rights come responsibilities. Along with the right to access data comes a responsibility to do so in a responsible way. The “WhatDoTheyKnow”3 website provides some very good examples of why public education might not only be a good thing, but necessary.

16. I have seen a lot of FOI requests on the What Do They Know Website where the requestor appears to have made the request in a rush. For example, the request isn’t as clear as it might have been if they’d thought about it (not to that point that it’s technically invalid, but that it doesn’t ask for what the requester actually wants or asks for far more than the requester actually wants). An FOI Officer has written an excellent blog article on ten top tips on making an FOI request.4 All are very sensible and if followed by requesters would assist both the requester and the public authority.

17. Any form of public education that occurs should not be aimed at putting people off making their request, but rather about making an effective request that does what they want it to do. The information is out there (the Information Commissioner also publishes guidance on making a request), but I do wonder if we could not be making these tips and guidance more accessible and raising public awareness of not only using the rights, but using them effectively and responsibly.

18. There will always be a few people who abuse their rights and Information access rights are no exception. It would be disastrous for FOI if the many were to be penalised for the actions of the few. By that I mean any steps to make it harder to make a request or to introduce a fee for making a request based solely on a small few who abuse their FOI rights. I’m sure FOI Officers around the country receive requests from people who have, in effect, a grudge against the authority. I’ve seen examples on the WhatDoTheyKnow website where FOI is being used inappropriately to ask over and over and over again for broadly the same information as part of what could be described as a campaign against the public authority. In my view there are adequate provisions within the FOIA to deal with such individuals.

19. If it were the case that Parliament was going to look at what more could be done to reduce the burden such requesters have on public authorities then it must be careful to ensure that there are no unintended consequences to such a move. For example, inhibiting the ability of local campaign groups to request information from public authorities on matters of great local concern (eg campaigns to save publically funded facilities such as libraries, swimming pools etc.) would be detrimental and should be avoided. Although, I am of the view that the current provisions surrounding repeated or vexatious requests are adequate for this purpose.

20. It is essential that the Information Commissioner is properly resourced to conduct all his statutory functions. In evidence submitted to the Leveson Enquiry it sounded as though there may be real problems with the level of resources available to the ICO. In terms of handling a section 50 FOI complaint the time and effort that is required to investigate and draft a decision notice is not insignificant. Some section 50 complaints are complex either because of the information involved or because there have been so many alleged failures to be investigated (whether that be failure to abide by timescales, inappropriate deployment of the public interest extensions, inappropriately applying exemptions etc.). I do not make these comments to suggest some sort of conspiracy within the public sector. Some public authorities have a poor record on responding to FOI requests. It is vital that the Commissioner can do the necessary work with these authorities to ensure that their compliance improves. This in turn would reduce costs to public authorities by resulting in fewer requests for review and fewer section 50 complaints.

21. I have personally been frustrated at having to make a Section 50 complaint to the ICO on the basis that the request has simply been mishandled by the public authority. The two requests that I directed members to above when discussing internal review timescales would be two examples where section 50 applications were made purely because of simple technical failures of the public authority. That said I also get frustrated when having to make requests for an internal review based on technical failings of a public authority rather than substantive failings.

22. I have mentioned in this evidence quite a number of examples of bad practice and failures when it comes to FOI. I think doing this helps highlight where issues exist that if fixed could vastly improve the working of FOI. I do not believe that examples of failures or bad practice are, for the most part, part of any conspiracy by public authorities to avoid releasing information. I think a number of public authorities have failed to adapt to increasing numbers of requests and not moved quick enough with the times in terms of the “Open Government” agenda. Whether this is down to a failure to have adequate process, training or both is not something that I can really comment on. However, it is clear that if FOI is to continue to work in the future, and to work better, that public authorities must continue to adapt and improve their FOI processes to ensure the right staff are in the right places and with the right knowledge.

23. I have mentioned earlier in my written evidence that it is important that existing information rights are not lost. The public sector is changing the way in which it operates. More and more public authorities are spending increasing sums of public money on outsourcing and information that was once available to the public through FOI is no longer because a private company has taken on roles traditionally done by public authorities. We must be careful to ensure that Schedule 1 is amended accordingly. I know that there are concerns regarding the changes to the NHS in England and Wales and the impact that this might have on information rights. I am aware that the Campaign for Freedom of Information raised this matter with the Secretary of State for Health5 and I hope that the Government will ensure that information rights are not lost as a result of changes it makes to the NHS.

24. As I said earlier in my written evidence, with the exception of the few matters I raised above, my view is that the FOIA does not need major overhaul. There do appear to be issues around enforcement, processes and knowledge within public authorities. This is where, I believe, focus should be turned to improve the way that FOI works. That is largely a matter for the Information Commissioner, but the Government should be seeking to see how it can best assist the Commissioner in those tasks. That may be by providing the Commissioner with additional powers or funding, but really the Commissioner is best placed to identify what would help him and his office to carry out its functions.

Summary of Recommendations to be Considered

1. Increase time for Section 77 prosecution from six months.

2. Introduce a statutory regime for internal reviews including statutory timescales.

3. Remove public interest test extension, or at least place a maximum extension into the legislation.

4. Consider amending the FOI legislation to ensure that existing information rights are not lost by changes in the way public authorities conduct their functions.

5. Consider amending the “harm test” in the FOIA to cover situations only where the release of information would be of “substantial prejudice to a specified interest”.

January 2012

1 The question and answer can be read here http://www.theyworkforyou.com/wrans/?id=2011-10-20b.75857.h&s=Freedom+of+Information+speaker%3A24733#g75857.q0

2 Available here: http://www.itspublicknowledge.info/home/News/20111612.asp

3 http://www.whatdotheyknow.com

4 FOI Man’s Top Ten Tips on Making Responsible and Effective FOI Requests http://www.foiman.com/foiguide1

5 http://www.cfoi.org.uk/pdf/Lansleyletter.pdf

Prepared 25th July 2012