Justice CommitteeWritten evidence from Birmingham City Council

Executive Summary

Birmingham City Council agrees that transparency and accountability are vital to good government. However, this has to be balanced against the ever increasing levels of requests for information being received by public authorities.

Requests received by Birmingham City Council have increased by over 400% since 2006.

It should be recognised that, in ensuring accountable and transparent government, there is an increasing demand for information. This demand should be adequately resourced and the additional cost to the local authority acknowledged.

We regard it as a strength of the FOI Act that it provides a legal right to information held by public authorities. This is invaluable in respect of allowing public bodies to be accountable to the public they serve.

In general terms, the Council is satisfied that the Act in operating in the way it was intended to given the original objectives.

There is, however, an increasing use of FOIA requests to support grievance, disciplinary and legal procedures (such as litigation).

Secondly, the proposed changes to the FOIA to include the release of datasets for re-use, add, in our view, a further objective of the Act that did not feature in the original sets of objectives.

Specific Questions

Does the Freedom of Information Act work effectively?

1. Requests

1.1 There is an increasing awareness of the rights granted by the Freedom of Information Act 2000. Requests received by Birmingham City Council have increased by over 400% since 2006—see figure 1 below.

Figure 1

FOI REQUESTS RECEIVED BY BIRMINGHAM CITY COUNCIL

1.2 In Birmingham City Council’s case, we do not log all requests for information, but rather requests for information which cannot be dealt with as “business as usual”.

1.3 Furthermore, the figures set out above, are merely a record of communications containing requests. Most of these communications have a number of questions within each request, thereby increasing the overall number of questions responded to and information provided.

1.4 A sample exercise, undertaken by Birmingham City Council in June 2011 of the requests it had received, sought to record the actual numbers of individual requests contained in the communications logged containing requests.

1.5 There were 135 logged letters containing requests. However, these contained 559 separate individual requests, an average of just over 4 requests per logged correspondence.

2. Requestor Type

2.1 Analysis of requestor types, making requests to Birmingham City Council over the past three years show an increase over that period of time of requests from the media, companies, organised groups and service users. This reiterates the fact that there is an increasing understanding of the Act within the various requestor types and the purposes for which the requests are made reflect the differing interests of the requestors.

Figure 2

REQUESTS TO BIRMINGHAM CITY COUNCIL BY
REQUESTOR TYPE

Requestor

Total 2011

Total 2010

Total 2009

Councillor/MP

20

17

20

Employee

38

12

20

Media

352

284

221

Company

221

124

113

Organised Group

276

201

212

Service User

543

469

412

Public Body

24

10

5

Solicitor

31

42

58

Trade Union

16

14

11

Total

1,521

1,173

1,072

3. Resourcing

3.1 The increased volume of requests within the Local Authority sector presents a clear challenge during a period where funding is being reduced against a backdrop of increased expectation for information.

3.2 The experience within Birmingham City Council suggests that whilst the responses to responding to FOI requests within the 20 working day target is around 85–90%, to maintain this level, and avoid censure from the Information Commissioner’s Office, requires more rather than less resource. Even increasing the amount of information proactive released requires additional resource to reflect the demand for the different types of information and analysis that is required to satisfy the demand from the public.

3.3 In 2009, the Council carried out a short exercise to attempt to determine the costs associated with dealing with FOI requests. Taking a sample of two months during the year, the Council estimated that the average time taken for each request was approx 10–12 hours to locate, retrieve and review the information (based on the FOI Fees Regulations). Using this base and the £25 set out in the FOI Fees Regulations, the cost of locating the information the requests logged during 2009 was calculated as follows:

10–12 hours * £25 per hour = £250-£300 * 1,072 requests = £268,000–£321,600

When salary costs of staff employed in dealing with FOI (as well as other Information Rights work), this totals a further £475,000 approximately, resulting in an estimated cost of almost £800,000 in administering this area of activity.

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

4. Strengths

4.1 It provides a legal right to information held by public authorities. This is invaluable in respect of allowing public bodies to be accountable to the public they serve.

4.2 The exemptions are fairly clear with the emphasis upon release of information.

5. Weaknesses

5.1 Publication schemes

5.2 The Council’s view is that, in respect of the legal requirement for each public authority to maintain a Publication scheme, this does not reflect an effective use of public resources. The number of individuals who use the publication scheme is small and, in the experience of Birmingham City Council, there is little correlation between the information contained within Publication Schemes and the types of specific requests that are received.

5.3 The ineffectiveness of the Publication Scheme is largely due to the technology advancements made since the Act came into force and to the increased use of internet search engines. A more effective use would be to allow individuals to be able to search Local Authority websites to locate the information, or references as to how to obtain the information (if there is a charge).

5.4 Fees Regulations

5.5 Where there are large amounts of easily accessible data, for example emails, the Fees regulations do not take into account the time taken to redact or go through the information. For example, where a public authority receives a request for an enforcement file, whilst the information is held electronically, the time spent in locating the information is relatively minor. However, a considerable period of time is spent in a trained council officer having to go through the file to consider what information if any, should be withheld, under the relevant exemptions. This is a time consuming and resource intensive task requiring specialist knowledge, and is not reflected in the Data Protection and Freedom of Information (Appropriate Limits and Fees) Regulations.

5.6 To date, Birmingham City Council has only once received payment for additional work where it has issued a fees notice in accordance with the Data Protection and Freedom of Information (Appropriate Limits and Fees) Regulations.

5.7 Costs of dealing with requests

5.8 There is no link between the costs of dealing with the request and the requestor. One only has to look at various websites, such as whatdotheyknow.com, to see individuals who have made, across the public sector, hundreds of requests, costing the public sector tens of thousands of pounds, without the requestor making any financial contribution towards the costs of the request.

5.9 Whilst Birmingham City Council agrees that transparency and accountability are vital, this has to be balanced that against the ever increasing levels of requests being received. It should be recognised in ensuring accountable and transparent government there is an increasing demand for information. This demand should be adequately resourced and the additional cost to the local authority acknowledged.

5.10 One possibility would be to adopt the charging regime for subject access requests, ie levying a flat rate initial fee of eg £25 per request. This would force requestors to moderate their requests to the information they need, rather than sending the same request to hundreds of public authorities, each of which would have to search or respond to the request or direct them to the Council website if the information has been published.

5.11 Requests received by any officer

5.12 The requirement that a request can be received by any council officer, rather than the Public Authority should be removed. Most public authorities advertise a designated email address and postal address. This would also ensure that requests are not misplaced or unnecessarily delayed.

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

6. General comments

6.1 In general terms, the Council are satisfied that the Act in operating in the way it was intended to given the original objectives.

6.2 Use of FOI for litigation

6.3 There is evidence, however, to suggest an increase in the use of FOIA requests to support grievance, disciplinary and legal procedures (such as litigation). Under the Woolf reforms, as implemented in the Civil Procedure Rules, there was a focus on narrowing the scope of disclosure to the issues in hand. However, under FOI, there has been an increasing use by both litigants in person and solicitors to use FOI as an alternative means of disclosure.

6.4 However, any disclosure under FOI, in most cases, would be less than that which would be made available under the pre-action disclosure regime or the disclosure rules of the CPR, by virtue of the legal obligation to disclose all material information relevant to the claim. If a requestor, under the CPR, wanted information other than directly relating to the case, he would have to make an application for specific disclosure. However, in respect of public authorities, the requestor can just make a FOI request. This appears to undermine the focus of the CPR in trying to reduce the costs of litigation, as it encourages litigants to focus on FOI as a free means of accessing information, and encourages litigants to widen the scope of the litigation to issues not directly relating to the litigation.

6.5 Whilst the Courts have made disparaging reference to the use of access to information legislation for litigation purposes, this has done little to stem the number of litigation requests. One possibility to limit the use of the Freedom of Information Act as a litigation tool would be where it can be shown that the requests were made for litigation, the costs of such requests be included in the costs of the case, and thus, if the requestor is unsuccessful in the claim, the costs incurred by the public authority in dealing with the request could be recovered from the requestor, as per the normal litigation costs rules. This avoids the requirements for considering the purpose of the requests, when dealing with the request, but instead, allows the public authority to recover some of the resources utilised if the litigation was unsuccessful.

6.6 Right to data

6.7 Secondly, the proposed changes to the FOIA to include the release of datasets for re-use, add, in our view, a further objective of the Act that did not feature in the original objectives. The original objectives of FOIA are based around:

Openness and Transparency.

Accountability.

Better Decision Making.

Public Involvement in Decision-Making.

6.8 However, one of the key aims of the proposed revisions to the Act is to enable the release of data in open formats available for re-use for commercial exploitation and that Public Authorities should make information available for that purpose. This has implications for the Council, both in terms of the capacity to resource the effort involved in making the data available and also, potentially, impact existing income streams which are currently available to the Council from charging for data.

The key principles for publishing datasets that are held by public authorities are:

responding to public demand;

releasing data in open formats available for re-use; and

releasing data in a timely way.

6.9 The current requirements for publishing datasets are:

Local authorities should build and maintain an inventory of the public data that they hold so that people are able to know what is available to them.

Publication should be in open and machine-readable formats. A 5 step journey to a fully open format is recommended, with level 5 being the most open format.

Data should be made published as soon as possible following production even if it is not accompanied with detailed analysis and where practical, local authorities should seek to publish in real time.

January 2012

Prepared 25th July 2012