Justice CommitteeWritten evidence from the Audit Commission

Post-Legislative Assessment of the Freedom of Information Act 2000

The Audit Commission welcomes the Justice Select Committee’s inquiry into the post-legislative scrutiny of the Freedom of Information Act 2000 and has comments in response to three questions:

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?

Does the Act work effectively?

The Public Administration Select Committee, in its response to the White Paper, identified a purpose of FOI was to:

“improve the quality of government decision-making because those drafting policy advice know that they must be able, ultimately, to defend their reasoning before public opinion”.

We believe there is a difference between simply providing “recorded information” and helping the requestor to understand what that recorded information means. The original aims of the Act are still valid, but legislating and prescribing how organisations should provide information, in such a rigid way, can lead to the reverse. Information can be made public, but in a way that is difficult to understand, unless there is also context and interpretation.

Strengths and Weaknesses

In our view the Freedom of Information Act does not actively encourage public bodies to be helpful.

Understanding the Needs of the Requestor

The Commission has found that there can be difficulty in providing easily understandable information, if the Act is followed to the letter. The Act has two important weaknesses that should be addressed to help overcome this: Public authorities are not empowered to ask “who is making this request”, and “why is it being requested”.

There are arguments that because the Act is “applicant blind”, each request is treated on its own merits. However, these two questions would enable us to understand the needs of the requestor. We would not only be able to provide the required information, but could supply additional information to assist the requestor further and tailor our response to their needs. The Act assumes that the requestor knows exactly what it is that they want — that is not always the case. Appropriate questions can elicit more information from the requestor, and enable a much more helpful response to be sent.

How to respond to requests

The Information Commissioner’s Office (ICO) has produced extensive guidelines and assistance to help public authorities to understand their duties under the Act. However, we see the requirement imposed on how responses should be drawn up in order to comply with the Act, as being overly prescriptive.

Many public authorities craft responses to requestors that are clearly designed for presentation to the ICO in case of a complaint. Responses are not always written in plain English, or in a way that could easily be understood. Instead there is a preference to adopt a more legal tone, often quoting the Act word for word.

Fear of Reprimand

Paragraph 100 of the Memorandum says (in relation to the application of Section 14 —Vexatious and Repeated requests):

“However, public authorities’ reluctance to use section 14 is sometimes compounded by a fear that the ICO will not back them up”.

Our view is that this fear of being reprimanded extends to the whole Act, not just section 14.

Some examples of responses we have seen made by other public authorities can be confusing to the requestor, in attempting to demonstrate that every element of the Act has been applied properly. We take the view that it is better to promote understanding by writing the main body of the reply in plain English, giving a better targeted answer to the request. In our replies we attach a separate note, which explains how we have interpreted the Act, and gives a clear explanation of any exemptions we have used. This keeps our answer and the legal interpretation of the Act separate.

For example, in order to be technically compliant with the Act, a Public Authority should issue a refusal notice for information that is already available by other means. We should confirm if we hold the information and then say that under section 21 of the Act, the information requested is exempt. Then under our duty to advise and assist we should consider signposting the requestor to the place where they can obtain the information. We should also close the response with the directions of how the requestor can appeal.

Alternatively, it could just say that it is already available, tell them where to find it and say please come back to us if you have any difficulties.

This is a very basic example, but one we hope demonstrates the difference in approach.

Is it operating in the way it was intended?

It is operating in the way it was intended to a certain degree. The Act has opened up public sector information, but our view is that it has not lived up to the principles behind it and has not increased public understanding of the decision-making process. It is a complex piece of legislation and, for the general public, it can be extremely difficult to understand what rights to information they have and what it means when exemptions are applied. For the public body it could also mean over regulated replies, which may be less than helpful.

In our view the Act is onerous and expensive. For example, like many other Public Authorities, we receive requests from journalists who use the Act to source news stories of little relevance to our accountability. This is not in keeping with the spirit of the Act. Their requests are often wide-ranging and require a lot of staff effort, often from a number of different sections within the Commission, to gather the information requested within the timescales dictated by the Act. The limitations on which activities can count towards the cost limit often mean that we face significant costs from dealing with these requests. In our view, section 12 and 13 of the Act should be considered for amendment. We feel that the “appropriate limit” should be reduced and Section 13 opened up to enable authorities to recoup costs and reduce the burden on the public purse.

February 2012

Prepared 25th July 2012