Justice CommitteeWritten evidence from Lancashire Care NHS Foundation Trust (LCFT)

This document has been prepared by Dave Tomlinson, Director of Finance, Lancashire Care NHS Foundation Trust (LCFT), on behalf of that body and is submitted both directly to the Justice Select Committee (“the Committee”) and to the Foundation Trust Network for use in preparing its response to the same call for evidence.

Executive Summary

1. The Committee has invited written evidence on the following issues:

Does the Freedom of Information Act work effectively?

What are the strengths and weaknesses of the Freedom of Information Act?

Is the Freedom of Information Act operating in the way that it was intended to?

2. LCFT is an NHS provider which is obliged to comply with the FOIA and takes its responsibilities in this regard seriously. In doing so its senior officers have to exercise expertise in judgement in determining whether exemptions apply to the information requested and do so judiciously, weighing up what is in the general public interest as its key test.

3. It is clear to LCFT, however, that the FOIA is often used by third parties to access information for purposes for which it was not originally designed, though we are not permitted to enquire as to the purpose of requests.

4. For instance, a significant number of requests are from commercial organisations seeking to access information to give them a commercial advantage in some respect, for instance:

Requesting information regarding existing contracts and/or the identity of organisational decision makers and/or organisational structures for use in making unsolicited commercial proposals to LCFT and those decision makers in the way of inducing them to break contracts, identifying staff vacancies to allow them to push replacement or agency staff.

Requesting information to allow them to take legal action against a third party. One example of this is where an individual is persistently requesting information to ascertain confidential information about that third party, such as its pricing mechanisms, profitability, areas of business. When the requester is told that the matter has to be raised with the subject of that request to ascertain whether it considers such disclosure would breach a duty of confidence, the requester takes an aggressive and disproportionate response, demanding inappropriate release of such information.

5. Requesters of information frequently demand that information is provided in a specified format and do not respond well to indications that it is freely available in an organisationally-determined form. The same comment often applies when a requester is informed that the relevant information is not maintained by LCFT.

6. LCFT is placed at a commercial disadvantage by being obliged to reveal sensitive, confidential information about its operations which private competitors are not obliged to reveal, and indeed in many cases competitors are the requesters of that information. This is exacerbated by the fact that LCFT and many other public bodies are obliged to resource the provision of such information, and it is estimated in the case of LCFT that the relevant resources are equivalent to 1.5 whole time members of staff. It is considered that such resourcing is not a good use of public funds, in direct conflict with LCFT’s obligation to ensure value for money and efficiency.

7. LCFT has to respond to a number of vexatious or serial requests where there is clearly an obsession with a certain matter and the requester is not to be satisfied. On several occasions such requesters become openly aggressive in their requests and seek to harass individual members of staff.

8. Requests often ask for LCFT’s opinion of LCFT’s on a particular matter, something which is clearly not within the remit of the FOIA.

9. LCFT would concur with a number of statements made within the Memo to the Committee, specifically as follows:

Many of those interviewed highlighted the increase in number of requests they were receiving, and within this their frustration at the number of request from serial requesters. There was a view that some of these requests are coming from individuals with the sole purpose of gathering information for what was seen as illegitimate use ie a “good” media story or to irritate organisations. Although the Act contains an exemption to protect against vexatious requests (Section 14), a number of respondents still found it difficult to apply this exemption, noting that although such requests are perceived to be from “vexatious” individuals, the individual requests submitted cannot be considered to be vexatious in nature.

“There are certain people who will make requests, arguably for no public benefit at all, simply to irritate the public body concerned. Because it costs them nothing to do it, they can keep doing it and doing it. You can of course refuse to deal with requests when they’re coming from an individual who you deem to be vexatious. But actually, the definition of vexatious, certainly from the ICO’s standpoint and from our own legal team’s stand point is a very, very high bar. Most people who put in these requests are never really at the level of being what you would call vexatious but they are more than irritating.” (Respondent—commercial organisation)

Whilst there was agreement that the public should not have to pay to access public information, it was suggested that a possible means of preventing such spurious and repeat requests would be through the introduction of a nominal fee. It was acknowledged this would require a number of considerations and possible exemptions. All were aware of the impact this would have on low income individuals. Furthermore, other respondents noted that the cost implications of introducing a fee may well outweigh the revenue.

A consistent message from the majority of respondents was a desire to see the appropriate limit reduced, or for other resourcing elements such as redaction, consultation and reading time to be included in some way. Currently the legislation sets the cost limit at £600 for government departments and £450 for all other public authorities, equating to three and a half person days and two and a half person days of work respectively. There was a general view that the current time given to dealing requests is too onerous, with the issue being particularly exaggerated by the recent budget cuts which have taken place.

“18 hours is an awful long time to divert people away from their work. We try not to issue fees notices but, or to refuse on the grounds of cost, but FOI is a huge drain on resources that, I’d like to see it lower than 18 hours”. (Respondent—non-departmental public authority)

“It’s counterintuitive to impose a greater burden on a public body at the same time as you reduce its ability to deal with it”. (Respondent—central government)

January 2012

Prepared 25th July 2012