Justice CommitteeWritten evidence from Robert Wyllie

Background

I use the Freedom of Information Act 2000 for my own private and academic research. It has enabled me to obtain information from a wide range of public authorities, and I have experience of its enforcement mechanisms. I am presently engaged as an Additional Respondent in an appeal before the First-tier Tribunal which is stayed pending the decision of the Court of Appeal on how the European Convention on Human Rights interacts with the 2000 Act.

I also have experience of using other freedom of information legislation. For example, I was featured as the youngest applicant to appeal to the Scottish Information Commissioner in his 2009 Annual Report to the Scottish Parliament. Some of the information disclosed through my requests have been the subject of articles in national newspapers.

Not having been closely involved with proceedings on what became the 2000 Act, I do not feel able to contribute to the Committee’s third question, on whether FOIA is operating in the way that it was intended to. However, I hope my other responses are helpful.

Question one: Does the Freedom of Information Act work effectively?

My experience of requesting information from public authorities suggests that the Act works effectively for the most part. The majority of authorities are helpful, provide considered and useful responses, and are receptive to feedback. The enforcement regime, while time-consuming and daunting, provides a thorough check on public authorities and should not be diluted.

Some public authorities may suggest to the Committee that it is necessary to make amendments to the legislative framework that will reduce what they perceive to be unnecessary burdens. Part 4 of the Government Memorandum outlines some concerns which have been expressed about the operation of the Act.

The question of who is covered by the Act is one issue raised in the Memorandum. It was regrettable that the Memorandum did not explore the difference in how the Act lists the public authorities which are within its scope, while the Environmental Information Regulations 2004 outline a general test against which any organisation can be assessed to see whether it needs to abide by that regime. Given the lack of evidence about which structure is best, I recommend the Committee seek evidence about the impact of the different regimes.

On a connected point, I agree with the approach of the Scottish Information Commissioner that FOI should “follow the public pound” and apply to organisations performing public functions such as those responsible for private prisons. Arguments to the contrary lead to the conclusion that value for money comes at the expense of accountability and fundamental rights. In this context, it was very distressing that there was no significant consideration of the role of FOI in the Government’s Open Public Services White Paper. The Committee should take heed of the warning contained in the Scottish Information Commissioner’s excellent Special Report to Parliament that failing to recognise the changing landscape of public service provisions could erode FOI rights.1

One particularly controversial point is how the Act extends to scientific and academic information. Much of the recent debate has been stirred up by a request of the University of Stirling to provide information about how it conducted a research project, where the request came from a tobacco company. After having considered the matter, including reading the concerns of the researchers themselves2 I cannot but conclude that there is nothing in their complaints which has not already been addressed by Parliament in drawing up the legislative scheme. The only issue which is really specific to academia is whether universities should be classed as public authorities at all, but very few seem to be arguing for that. Therefore I do not consider it is fair to deal with these concerns separately from more general concerns of public authorities.

The Memorandum correctly identifies the problem of vexatious requesters as one that should cause concern. It is now plain that some people are using their rights in an irresponsible way, which spoils it for others and has the potential to bring the statutory scheme into disrepute. So recent decisions of the First-tier Tribunal which deal robustly with those using FOI rights to simply extend campaigns, engage in personal attacks, or attempt to overwhelm public authorities is welcome.

This developing case law will feed into the decisions of public authorities, the Information Commissioner and the Tribunal, and all FOI requesters must be prepared to be scrutinised by these bodies if they wish to access information. I think this point is too easily forgotten by those who suggest draconian steps such as levying a modest charge for any FOI request received by a public authority. This risks denuding FOI of its character as a fundamental right. By way of example, I believe my own use of FOI is responsible, and have never been criticised by any public authority in how I use FOI. But I would not have taken the trouble had a charging scheme been in place.

Interestingly, the Memorandum suggested public authorities are wary of using their powers to decline to comply with a vexatious FOI request because of the cost. I confess that I struggle to see why this is the case. This is because while a decision on whether a request is vexatious must be made with care, it can be made by a single decision-maker, who need not be a FOI specialist, having ready access to guidance. What is more, the decision-maker need not collect or examine the requested information in order to come to a decision. I suggest the Committee may find this to be a good example of misconceptions or inefficiencies on the part of public authorities leading to people having views about FOI which are unfair.

The Memorandum also explored the issue of the cost of requests to public authorities. Much of the debate centres on the question of what is a disproportionate burden, to which there is no clear answer. The requirement should be on those proposing changes to the fees regime to justify their position. I trust the Committee will wish to provide a more robust level of challenge to the assertions of public authorities than that found in the Memorandum. For example, it was regrettable that the Memorandum only adverted to the possibility that costs of FOI requests might reduce if a public authority undertook best practice in records management. The Committee may wish to examine the system for regulating records management to see whether it is fit for purpose. The Public Records (Scotland) Act 2011 is one example of how a jurisdiction with a mature FOI regime felt it necessary to have a tougher system of records management supervision than that provided for in their FOI legislation, which was similar to the 2000 Act.

Question two: What are the strengths and weaknesses of the Freedom of Information Act?

Overall, the Government are quite right to assert that the Freedom of Information Act 2000 is a powerful tool for the citizen, and when compared with similar provisions around the world, is one of the better pieces of access to information legislation. Should the Committee agree with me on some of the areas of concern I address below, it must not lose sight of this core conclusion.

One of the problems with how people use the Act is that it forms but one part of a wider information law framework which is cluttered. For example, different rules apply depending on whether the information requested relates to the environment, or happens to be obtained from a local authority at the time their accounts are audited. This can lead to confusion, and does nothing to help practitioners or requesters. So I suggest that thought be given to harmonising similar provisions of the 2000 Act with other access to information legislation, such as the Environmental Information Regulations 2004 and section 15 of the Audit Commission Act 1998.

I have been concerned for some time about the scope of some exemptions. My earlier suggestion that the provisions of the 2000 Act be harmonised with other relevant legislation applies with particular force here. Exemptions dealing with parliamentary privilege, Royal communications, relations within the UK and the blanket security bodies exemption are all extraneous given how the rest of the statutory scheme has been interpreted. In any event, I see no reason why the cohesiveness of the law should not be enhanced in this way.

Perhaps another way in which the situation could be improved is to harmonise the exemptions in the 2000 Act with the provisions of the equivalent Scottish legislation. For example, one concern of mine surrounds how section 22 of the 2000 Act is used. That section exempts information intended for future publication, but there is no limit about when the information should be published. Following the Scottish provision would mean that the information which the public authority wants to keep private for the time being has to be published not later than twelve weeks after that on which the request for the information is made.

From my own experience, while central government is very keen to publish data proactively on its own terms, it can be especially unwilling to disclose information under FOI. I was therefore unsurprised to learn from the work of another FOI requester that out of the top ten public authorities with the most complaints against them under access to information legislation being upheld or partially upheld by the ICO since 2005, eight were central government departments.3 The reasons for this should be explored by the Committee.

Perhaps connected to this is the subject of the special exemptions given only to central government under section 35 of the 2000 Act. The Committee should consider whether, in the light of the interpretation of other exemptions4, and the changing public service landscape, it remains correct that these should remain in their current form. In an age where the government grants very significant responsibilities to local bodies which were once the preserve of the centre, the difference between how central and local government is treated under the 2000 Act now looks unfair and requires very strong justification.

Another problem concerning late reliance has been revealed in a series of court and tribunal decisions.5 This is where a public authority claims, for example before the ICO, that particular exemptions apply to certain items of information when it gave no indication these exemptions could apply in earlier stages of the request for information. This delays the process and can be mean the person requesting the information is required to go through further hoops. It seems to me that Parliament should make it clear under what circumstances public authorities can rely late on exemptions.

I stated earlier that the enforcement mechanisms in the 2000 Act are thorough. But something revealed to me when engaging in the present appeal to the Tribunal is how complex they can be. Tribunal processes should be reformed to make them more user-friendly. It is daunting for a litigant in person to be up against a public authority which will often be represented by legal advisers, in a forum where legal aid is unavailable and where the sheer number of precedents one has to absorb can be very large. I do worry that many requesters will choose to throw in the towel to avoid the fuss, even if their complaints are justified.

I also believe the 2000 Act misses a trick in how it deals with the role of the Information Commissioner For instance, while the First-tier Tribunal has a User Forum for the exchange of views about how it operates, no similar arrangement is in place for the ICO. This adds to a sense that the ICO is remote and difficult to contact. Maybe the lead of the Scottish Information Commissioner can be followed in this respect: for example, it has used a Consumer Panel recruited by Consumer Focus Scotland to ask lay people for their views on its website.

The Government should review again the statutory prohibitions on disclosure which preclude disclosure under section 44 of the 2000 Act. The last review appears to have been in 2005.

Publication schemes should be abolished. They are of little use to the FOI requester, and seem to just make work. At a time when the Government are pushing forward with electronic government, it is far better for public authorities to have a good quality website, containing both easy to understand information about how to make a request and a significant quantity of proactively released information.

To me, using data.gov.uk to provide this kind of information, together with a single disclosure log for central government would harmonise practice and chime well with the Government’s transparency agenda. It would also make clear that open data and FOI go together, and the former is not a substitute for the latter.

The Information Commissioner has previously told the Committee that the offence of altering records with intent to prevent disclosure should be amended so as to provide for a time limit of more than 6 months within which proceedings may be commenced. I agree with this recommendation, which is replicated in clause 3 of the Scottish Government’s proposed Freedom of Information (Amendment) Bill.

Echoing my concerns about the inattention to FOI in the Open Public Services white paper, I was concerned to note that freedom of information played no part in the recent Justice and Security green paper. I hope this does not suggest a more deep-rooted antipathy to extending FOI. There would be merit in seeing how FOI can play its part as part of the plans contained therein to strengthen accountability of the security and intelligence agencies and the organisations which supervise them.

Finally, the Committee will wish to examine international standards of FOI in order to find out our own strengths and weakness. This is particularly important given the developing interpretation of the European Convention on Human Rights. For example, in Tarsasag a Szabadsagjogokert v. Hungary [2009] ECHR 618 the Court affirmed the view that freedom of information is an important element of the Article 10 right to freedom of expression. This could well have an important impact on the nature of any changes the Committee could recommend.

In this context, I am puzzled that the UK Government spent much time negotiating on the text of the Council of Europe Convention on Access to Documents, and yet has refused to sign it. This is especially odd when the Government has been at pains to promote access to information on the international stage, through the Open Government Partnership. The Government should sign the Convention at the earliest opportunity.

January 2012

1 Scottish Information Commissioner, January 2012, Informing the Future: A Special Report to the Scottish Parliament. Available at www.itspublicknowledge.info/special.

2 Economic and Social Research Council, Autumn 2011, Society Now, pp.14-15.

3 research available at http://twitpic.com/6r0zxh/full

4 especially the section 36 “prejudice to effective conduct of public affairs” exemption.

5 discussed by the Upper Tribunal in All Party Parliamentary Group on Extraordinary Rendition v Information Commissioner and Ministry of Defence [2011] UKUT 113 (AAC) at paragraphs 38-44, and most recently by the Court of Appeal in Birkett v Department for Environment, Food and Rural Affairs [2011] EWCA Civ 1606.

Prepared 25th July 2012