Justice CommitteeWritten evidence from Ben Leapman, Deputy News Editor, Sunday Telegraph

Background

1. I am currently Deputy News Editor of The Sunday Telegraph, a position I have held since 2008. Previously I was Home Affairs Correspondent of The Sunday Telegraph (2006–08), Home Affairs Correspondent of the Evening Standard (2004–05) and Political Reporter for the Evening Standard (1999–2004).

2. As a working journalist I have submitted dozens of requests under the Freedom of Information Act (FOIA) to Whitehall departments, public bodies, and councils. I now help to manage a team of reporters who regularly make FOIA requests.

3. In February 2007 I was one of around a dozen senior journalists and editors who met Baroness Ashton to lobby against proposed changes to FOIA, which arose from the Frontier Economics report commissioned by the Ministry of Justice (MoJ). We argued that the changes would severely curtail the public’s right to know. The proposals were later abandoned by Gordon Brown’s government.

4. I was one of the three journalists whose FOIA requests for details of MPs’ expenses led to a High Court defeat for Parliament in 2008, forcing it to agree to publish full details of expenses claims—which led directly to the leak to The Daily Telegraph and the scandal of 2009. The brief timeline is:

January 2005: The week FOIA came into force, I asked the House of Commons to disclose the full expenses claims, including receipts, submitted by six named MPs. Commons authorities rejected my request initially and again on internal appeal.

April 2005: I appealed to the Information Commissioner, who joined my request with others submitted by Heather Brooke and Jonathan Ungoed-Thomas.

June 2007: After two years of consideration, the Commissioner issued a decision notice requiring the Commons to publish more detail of MPs’ claims, but not the receipts.

February 2008: The Commons appealed to the Information Tribunal, but its case was rejected and instead the Tribunal backed a cross-appeal by the journalists, ordering full publication including receipts.

May 2008: The High Court rejected an appeal by the Commons authorities and ruled in favour of the three journalists, declaring: “The expenditure of public money through the payment of MPs’ salaries and allowances is a matter of direct and reasonable interest to taxpayers.”(1) Consequently the Commons agrees to publish expenses claims in full and began to transfer paper records to electronic form.

May 2009: Electronic records created as a result of journalists’ High Court victory were leaked to Telegraph before their official release, prompting publication of the “Expenses Files” investigation.

5. Examples of other news stories published as a result of my FOIA requests include:

Police forces rated among the worst by the Home Office pay bonuses to their chiefs constables, while some of the best-rated forces pay no bonuses.(2)

Two million crimes a year are “screened out” by police and deemed unsolvable within hours of being reported.(3)

Convicted criminals commit 10,000 new offences per month while on probation.(4)

Asylum seekers who accept free flights home under a Home Office voluntary repatriation scheme subsequently return to the UK and do it again.(5)

Does the Freedom of Information Act work effectively?

6. FOIA has brought important benefits for the public, by lifting, in part, the veil of secrecy over the affairs of central and local Government. In particular, many requests by journalists have led to the disclosure of important information which would otherwise have remained secret. These disclosures have allowed the public to form a more accurate view of their elected representatives and of public bodies funded by taxpayers.

7. The culture of Whitehall and public bodies has to some extent become less secretive, with some information being released proactively that would previously have been withheld.

8. However, there is still a vast amount of information which would be liable for disclosure under FOIA but is not routinely proactively published. When asked to release such information, organisations often respond from a starting-point of reputation management rather than the public’s right to know. If they perceive that the release would damage their reputation, they often seek to delay and to find reasons to refuse, even when they have no legal grounds to do so—for example, by citing exemptions which do not in fact apply.

9. The Information Commissioner’s Office (ICO) under Richard Thomas took far too long to deal with appeals. I faced delays of more than 18 months, which was unacceptable. Under Christopher Graham, the ICO has speeded up its process.

10. In dealing with my MPs’ expenses request, arguably its biggest test, the ICO under Richard Thomas was insufficiently assertive and ended up bending to the will of MPs and Parliamentary officials seeking to prevent publication.

11. I consider it unacceptable that Mr Thomas’s officials spent two years negotiating with the Parliamentary authorities over my FOIA request for MPs’ expenses details, without ever discussing the issues with me or the other requestors. It was also unacceptable that the ICO went as far as drafting a decision notice, dated October 2006, which would have ordered the release of the full details of expenses claims; but then, following a meeting in December 2006 between Mr Thomas, Jack Straw and three other senior MPs, Mr Thomas changed his mind and eventually issued a quite different decision notice, which did not order disclosure (and was overturned by the Tribunal and the High Court). This meeting was kept secret at the time, and did not come to light until a whistleblower leaked details of it to me in 2009.(6)

12. A particular example of the Commissioner’s weakness was that around April 2005, the House of Commons authorities deliberately destroyed records for the 2001–02 expenses claims made by four MPs that were subject to my FOIA request—including Tony Blair. It is an offence under FOIA section 77 to destroy information with the intention of preventing disclosure, yet the explanation offered by the Commons—that the destruction was due to incompetence, not deliberate—was accepted, and no sanction was imposed.

13. Today, the ICO under Mr Graham regularly seeks to avoid the issuing of decision notices by trying to persuade requestors to drop or settle their appeals. This strikes me as potentially counterproductive, because formal decision notices are a useful guide to public authorities and to requestors on what should and should not be released. It strikes me that by avoiding issuing them, the ICO may have to go back to first principles and duplicate its considerations in some cases.

What needs to change?

14. I would like to see some extension to the scope of FOIA, in particular to cover private-sector and voluntary organisations that are performing public services on contract for public-sector organisations funded by the taxpayer. I also believe housing associations should be covered. There is a strong public interest here in ensuring transparency, not least because scrutiny is required to ensure that the services are being performed well and efficiently. It is unfortunate that at present the transfer of work from the public sector to the private or voluntary sector, or the transfer of housing stock from councils to housing associations, is accompanied by a reduction in transparency.

15. There ought to be a statutory time limit for organisations to carry out internal reviews. There’s no point requiring organisations to respond to the initial request within 20 days, but then letting them consider their internal review for eight months, as happened when I asked the Home Office to release a blog written by then-Permanent Secretary David Normington on its intranet site.

16. I would like to see clear guidance issued by the ICO that ministers and their aides cannot avoid the scrutiny of FOIA requests simply by communicating through private email addresses or social networking sites rather than departmental email addresses and written memos.

Proposals to scale back the right to know

17. The MoJ memorandum to the select committee raises concerns over the cost to public bodies of implementing FOIA. It says the cost has been estimated at £40 million a year—although it admits that estimates vary widely.

18. I believe that if FOIA does cost taxpayers £40 million a year, it is money well spent.

19. Greater scrutiny of public bodies produces financial benefits which could be set against this cost, to obtain a more rounded view of the impact of FOIA on the public purse. To take just one example, MPs repaid more than £1 million of expenses after their claims were revealed in full. I expect that public officials and local politicians up and down the land are now claiming less in expenses, and foregoing perks, for fear that they would be embarrassed if their spending was exposed through FOIA requests.

20. Estimates for the cost of implementing FOIA may turn out to overstate the true additional burden on taxpayers, because many public bodies now ask journalists to put in FOIA requests for information which they would, prior to 2005, have released through their press offices. It would have used just as much staff time for press officers to obtain and release the information under the old system. Thus these requests are not an additional cost, merely a switch of cost centre within the organisation.

21. Organisations could cut the cost of their FOIA releases by proactively publishing more information, so there was less need for requests to be made. For example, English Heritage routinely publishes public minutes of its board meetings on its website—but against each item number, there is only the phrase “This item is included in the protected minutes of this meeting as it contains information that is potentially protected from public access.”(7) Yet when I asked last month for a copy of the protected minutes for one board meeting, I was sent a much fuller document, headed “protected minutes”, with no redactions. If EH had put the fuller version on its website to begin with, it could cut the number and cost of FOIA requests, while better informing the public of its work.

22. The MoJ memo raises again the suggestion that costs could be cut by taking into account staff reading time and staff redacting time when calculating whether the cost of a particular release would exceed the statutory limit. This proposal—similar to what was considered and rejected in 2007—would have the effect of allowing public bodies to turn down more requests on cost grounds. I believe this is a deeply flawed approach, for the following reasons:

(a)At the £1-a-page reading cost floated in the 2006 Frontier Economics report, and with the current £600 cost limit above which a Whitehall department can refuse a request, this would mean that any Government report more than 600 pages long would remain secret, while shorter documents could be released. This cannot be right in principle.

(b)In practice, a requester could get around the ban by requesting just half of the report. Later, another requester could request the other half. The cost of dealing with the separate requests would be higher than the cost of dealing with just one request. Taking the example of my MPs’ expenses request, I asked for details of just six MPs’ claims so as not to be barred on cost grounds. But the Commons authorities decided, rightly, that they would not release claims piecemeal; after they lost in the High Court they said they would release expenses details for all MPs, not just the ones involved in the case.

(c)There is no reason to think that the requests blocked under this new approach would be “trivial” or “unnecessary” requests. They are more likely to be serious requests with a strong public interest behind them. The more sensitive and controversial the subject matter of a request is, the more reading and redaction it is likely to require.

23. The MoJ memorandum highlights unhappiness by public bodies about the volume of FOIA requests from journalists, including a complaint that FOIA is being used “for what was seen as illegitimate use ie a ‘good’ media story”. I think requests from the media to public bodies for information, whether through FOIA or the traditional press office route, need to be seen as a vital element of democracy—potentially exposing the failings that public bodies do not want the public to see. The cost should be held up against the sum that public bodies spend on marketing, promotion and advertising to put across the message they do want the public to see—which I suspect is much higher.

January 2012

Footnote References

(1) http://www.bailii.org/ew/cases/EWHC/Admin/2008/1084.html

(2) http://www.telegraph.co.uk/news/uknews/1578918/Police-chiefs-rewarded-for-failure-by-bonuses.html

(3) http://www.telegraph.co.uk/news/uknews/1568991/Official-Police-leave-2m-crimes-uninvestigated.html

(4) http://www.telegraph.co.uk/news/uknews/1518301/Offenders-on-probation-carry-out-10000-crimes-a-month.html

(5) http://www.telegraph.co.uk/news/uknews/1517013/Migrants-paid-to-leave-for-good-twice.html

(6) http://www.telegraph.co.uk/news/newstopics/mps-expenses/5412674/MPs-expenses-Information-commissioner-
performed-U-turn-over-publication.html

(7) http://www.english-heritage.org.uk/content/imported-docs/a-e/eb-public-minutes-13sept11.pdf

Prepared 25th July 2012