Justice CommitteeWritten evidence from the Kent Messenger Group

About the KM Group

The KM Group is an independent, family-owned business with over 150 years of history. It has developed from a newspaper publisher to a multimedia company that currently employs more than 330 people.

Using print, broadcasting and the Internet to satisfy the needs and wants of both consumer and advertisers, KM Group’s portfolio includes over 25 products across press, radio and online.

Journalists working for the KM Group are regular users of the Freedom of Information Act.

Its political editor Paul Francis is acknowledged as an expert on FOI and regularly comments and advises on FOI issues. Although many of our requests focus on councils, we routinely use the Act to ask for information from a range of other bodies.

1. Does the FOI Act work effectively?

There is no straight “yes” or “no” answer to this. In our view, the way in which public bodies respond and deal with requests made under the Act is variable.

Some have been enthusiastic about embracing the culture of transparency and openness. Others appear to remain suspicious and defensive of the motives of FOI requesters, especially those from the media. This is despite the “motive blind” nature of the Act.

In general, most bodies have now well established procedures for dealing with requests and the process of making requests is well signposted on websites etc.

In a broad sense, the Act has improved transparency and accountability, particularly in the area of greater openness about how public money is being spent.

At the same time, authorities often fall back on qualified exemptions to withhold information. (Discussed in more detail in 2). There is extremely limited evidence that authorities are now routinely publishing more information as a result of FOI, as the Act intended.

If they are, they are not doing so in a way that makes it easily accessible and are not advertising the fact.

2. Strengths and weaknesses of the Act

Strengths

Placing public bodies under a statutory obligation to consider publication of information in a neutral fashion means, from a media perspective, less latitude for them to put “spin” on information and give it a PR dressing.

Data and statistics are much more readily available.

Politicians and decision-makers can and are being held to account much more effectively, often directly through media FOI requests.

The public interest aspect of FOI is a powerful one—although this can in practice also prove a weakness.

There is evidence that FOI is and has affected policy making and led to greater citizen engagement and interest.

FOI has been particularly useful in holding local councils to account in the context of the introduction of cabinet government (LGA 2000) which many journalists believe has diminished the flow of information and allowed authorities much greater control over the flow of information about executive decisions.

Weaknesses

Delays in responding to requests are commonplace. There is a view—reinforced by evidence—that while the Act is motive blind, the reason for these delays can be because responses to requests made by journalists are not sent out until they have been “cleared” or reviewed by politicians/councillors.

Our experience is that many requests either are not responded to within 20 days or if they are, the response comes on Day 20—even relatively straightforward ones.

The weighing up of public interest arguments can be flawed. Many authorities appear not to start with the scales balanced equally but begin from a position that assumes there is a default position that the requester must prove through a greater weight of evidence that the information should be put into the public domain.

Authorities seem unaware of the guidance around time extensions when considering public interest exemptions, failing to comply with the recommended time frames (still 20 days unless the arguments are exceptionally complex).

The use of Section 36 exemption can seem to be a fallback position for refusals for many authorities when all else fails. In such cases, the evidence advanced is rarely specific or clear but there is a simple assertion that something would not be in the public interest.

Often, the argument revolves around the need for an authority to have “private space” in which to debate or consider policy options.

There has not been more routine publication of information by bodies as envisaged by the Act.

The appeals process through the ICO is time consuming and often takes months to resolve. Our experience is that internal appeals often fail or if they succeed, the explanation will often bear out the suspicion that initial refusal was a holding position or made in the hope that the appeals process would not be pursued.

3. Is the Act operating in the way it was intended to?

In many ways, yes. However, our experience points to incredibly wide variations in approach by authorities, in terms of positive co-operation; a willingness to assist requesters and decisions around what is in the public interest.

4. Other Issues

We would question whether authorities always consider requests neutrally (see comments in 2). There can be a feeling that media requests are ones that will always result in public disclosure—and are accordingly treated differently from the outset.

The proliferation of different bodies and groups such as private companies, social entrepreneurs and community groups becoming involved in providing public services through policies such as The Big Society and the emerging “Localism” agenda raises important issues about access to information which appear not to have been recognised by the government.

For example, if a community group opts to take over the running of a local library, for example, as part of the Big Society initiative, where are the checks and balances in the system if they are not covered by FOI?

The same issue applies to arms-lengths commercial companies set up by authorities, particularly councils and the growing phenomenon of councils joining forces and merging functions to provide services over a wider area.

Costs

We would be concerned at any plans to extend the scope of the Act to allow more activities to be considered as “chargeable”. We note the consultation document mentions the possible inclusion of reading time as an option.

That would be extremely problematic and hard to measure and could be dangerously subjective. Our view is that the current charging regime broadly works and FOI should remain free.

We would oppose the introduction of any fees to make appeals. That in itself might act as an incentive to authorities to withhold information in the hope that requesters could be deterred from appealing because of the costs, even if the fees were to be refundable if the requester was successful.

The issue of costs appears to be of concern to authorities because of the volume of requests being received.

It might be argued that authorities who receive large numbers of requests are not being as pro-active in terms of publishing information routinely and a way of reducing requests would be to be more willing to do so.

An authority that faces large numbers of requests under FOI indicates to us that it is not as open as it could be.

We do not accept that FOI places a disproportionate burden on bodies, nor that the media are responsible for a greater number of requests than any others.

In fact, there is evidence the costs impact is in any case marginal.

In 2010, Kent County Council—the largest English county council—dealt with 1,539 separate requests—about three times as many as when the Act first came into force in 2005. It estimates that the hours spent dealing with these requests was 4,779 and the average cost of dealing with a request was £78—compared to £71 the previous year.

The bulk of requests did not come from journalists. The media accounted for 16% of all requests; private individuals accounted for 58% and companies 18%. The cost of dealing with 246 requests from the media was £19,188. In the context of KCC’s annual £2.4 billion budget, that represents 0.00007995% of its total spend.

It’s far less, for example, than the £1.7 million KCC has to spend on members allowances and expenses each year which accounts for 0.07% of its budget.

February 2012

Prepared 25th July 2012