Justice CommitteeWritten evidence from the Financial Times
POST-LEGISLATIVE SCRUTINY OF THE FREEDOM OF INFORMATION ACT 2000
The Financial Times strongly supports the principles behind the Freedom of Information Act, and believes that, while there is room for improvement, it is well constructed.
The Effect of the Act
The Leveson Inquiry is tasked with examining to examine how to protect the “independence” of the media “from Government”. By allowing reporters to bypass politicians, the act gives extra independence to journalists.
The act makes it harder for officials to attempt to cut out journalists who write things that they would rather not have reported. Constraining requesters will empower press-handlers at the expense of enterprising journalists.
Even when relations with departments are cordial, our reporters find the act a helpful tool with which to establish facts about the operation of policy and departments which press-handlers might be loath to release.
The act is weak for finding out why decisions were taken: the policy process is well-covered by exemptions. But the legislation is a strong tool for finding out hard facts about implementation and their effects on the ground.
Our reporters believe that queries to press officers relating to technical issues get answered more promptly. Officials are keen to get information out promptly because they know disclosure of these items can be forced.
The volume of information released because of the act, therefore, is greater than official statistics or press coverage would suggest.
The act has also empowered the push for “open data”, which improves scrutiny and transparency: it allows journalists to obtain large quantities of machine-readable data with which they can analyse government.
The Implementation of the Act
Our experience of the act has been concentrated on national government departments more than smaller or regional public authorities. Even there, in our view, the act is still bedding down.
Public authorities are still learning how to implement the act: we routinely submit requests which require careful consideration because they seek forms of data that have never been sought before.
In our experience, junior officials who have never known the civil service before the act are comfortable with it. Complaints—and resistance to the act—come from senior officials, special advisers, press officers and ministers.
Older officials are often less familiar with the act as well. Most of the concern voiced about a “chilling effect” on internal discussions suggest that sections 35 and 36 of the act, which shield policy-making, are not widely understood.
Whitehall would benefit from better training in the Act. We would also support the elevation of the status of Fol officers within the civil service: these advocates for the requester need to be given more internal clout.
Reform of the Act
We believe the act has several excellent features which should be retained.
The lack of a motive clause
It would weaken the act if requesters were forced to explain why they want information.
Even if a “motive” test were applied only to seemingly trivial requests, it could be extremely damaging. Important stories in the public interest often turn on micro-details: tracking meetings and phone logs.
It would weaken the effectiveness of the act as a tool for uncovering the truth if journalists were forced to disclose the purpose of their enquiries.
Indifference to the manner by which data is filed, sent or stored
Creating a category of documents (such as “cabinet papers” or “private email accounts”) within departments which enjoy absolute exemptions will encourage ministers to retain information under those headings.
Officials have informed our reporters that they circulate memos marked as “restricted” and “policy” documents when they are nothing of the sort in order to enable evasion of the act.
The cost limit system
At present, cost limits only apply to the expense of locating and extracting information, but not redaction or other costs. These expenses must not be rolled within the cost ceilings.
Allowing officials to count such costs towards the limit would encourage them to consider exemptions or redact heavily in order to waste time, and thereby hit the cost limit without releasing any information.
We appreciate that, in some cases, information is easy to find but very expensive to redact, process and release. The rules should not be changed to cope with those rare examples. For most requests, the limits are sensible.
We would be concerned by attempts to change the rules on aggregating requests. The idea that each reporter (or newspaper) should be able to ask for one batch of responses every few months would hobble journalists.
We also believe it would be unenforceable, because individuals would soon use third parties.
Indifference to the requester
Journalists and campaigners should be permitted to ask questions in precisely the same manner as anyone else. While this imposes a cost on government, it is necessary—and desirable—that the press should use more than average.
Quite aside from the difficulty of defining a journalist, if parliament wants a free, sceptical and independent press which deals in serious inquiry and investigation, it would be perverse to allow it more restricted access to public information than members of the public.
Problems
Time limits and delay
We find requests are often late and there is too little focus on combating delay. The 20 day limit on replies would be sufficient, if it were adhered to.
We believe that delays drive the proliferation of requests by journalists, who may make several requests to secure the necessary information, in the hope that one will come back on time.
We would also note that, when replies are on time, they almost always come on the 20th day, even if the request is for data that is readily to hand.
Misuse of exemptions
Departments should face stern penalties for deliberate or systematic misuse of exemptions. The act assumes that, so long as the right decision is reached eventually, little else matters. But officials can keep information hidden for more than a year.
Meagre penalties for retention breaches
The penalties for failing to retain and release data are small. Failing to keep appropriately full records ought to be an offence under the Act. This ought to be of concern because the institutions have no record of how decisions were taken:
Officials in several Whitehall departments use instant messaging systems alongside their email systems explicitly because these systems leave no record.
Officials (particularly ministers and special advisers, but also some civil servants) use private, non-departmental email accounts from which they refuse to disclose the contents.
One Fol release to the FT revealed that a senior official—an acting director at the Department for Education—destroyed all of his emails at the end of every month.
It is alarming that, even though officials occasionally go to extreme lengths to avoid disclosure, the offence of Fol evasion is so narrowly defined that it has still never been deployed.
Treatment of Journalists
The central problem for the press in using the Freedom ofInformation Act stems from the fact that journalists are treated differently to other requesters:
Press officers are informed about journalists’ inquiries who monitor them for newsworthy returns. At the very least, this means that our replies come later than others’.
We also know that they also attract more scrutiny (and delay). Replies are seldom timely and our reporters believe that political appointees push the use of sections 35 and 36.
In another case, data requested by an FT journalist from the Department of Health was given in advance to a rival, who they believed would be more sympathetic to them.
This rival publication published a story on it before we could scrutinise it. The DH has recognised that this was poor practice, but it is indicative of how requests from journalists are not treated like those from other people.
The problem has never, in our experience, been information rights managers. They, as a class, have a favourable view of the Act and the principle of transparency.
These concerns have a cost: the time- and cost-intensive use of the act by journalists identified by the MoJ memo may be exacerbated by their attempts to disguise what they are doing from officials.
Requests which look like “fishing” may, in truth, be drafted to retrieve specific documents while not showing the real objects of their interest. This tactic is sometimes necessary because reporters have little confidence that data of interest will not simply be destroyed.
An innovation worth consideration would be to make requests genuinely requester-blind. Only the civil servant who fields the request (which, in most cases, will be a communications unit official) should know the requester’s identity.
February 2012