Justice CommitteeWritten evidence from the Northern Ireland Civil Service Departments

Introduction

1. The NI central government departments (see Appendix 1) are separate public authorities under the provisions of the Freedom of Information (FOI) Act 2000. By way of background, we would ask the Justice Select Committee to note the following brief summary of the operation of the FOI Act.

2. Freedom of Information Annual Reports (published for each calendar year since 2005) show that the departments which compose the NI Civil Service received 18,353 requests for information between 2005 and 2010 inclusive. Most of the requests were received from members of the public. The media and the business sector were the next most prominent sources of requests. Over the six years, the departments responded to 91% of requests within the statutory time limits, and in 74% of cases the information requested was disclosed in full. The exemption engaged most frequently was that for personal information (section 40 (2)). The next most prominent exemptions used by the Departments were commercial interests (section 43), and the formulation of government policy (section 35). 652 internal reviews were conducted, and 77 complaints were made to the Information Commissioner, who has issued 57 Decision Notices involving the departments. Only five cases have been escalated to the Information Tribunal.

3. The Justice Select Committee should note that while FOI is a “transferred matter”, in 2000 the then Executive Committee of the NI Assembly (“the Executive”) decided not to introduce separate FOI legislation. Therefore, NI was covered by legislation passed by Westminster.

Executive Summary

4. The FOI Act has facilitated the disclosure of significant amounts of official information: proactively through Departmental Publication Schemes and in response to requests for information. Furthermore, the Codes of Practice and guidance produced by the Ministry of Justice (and its predecessors), and the Information Commissioner have been of practical assistance in the implementation of the provisions of the primary legislation. There is clear evidence that the Act is being used by a wide range of users: members of the public; the media; businesses; public representatives; and campaigning groups. The administration of the Act has—on the whole—been well handled by Departments and, indeed, there have been improvements in information and records management policies, procedures and practices in response to the statutory obligations placed on public authorities.

5. However, the Act suffers from a number of flaws. Section 12 and the associated Fees Regulations are difficult to administer, and do not provide sufficient protection for departments which are absorbing substantial costs (though no satisfactory cost measure has been available for calculating total costs). A significant amount of resources have been tied up dealing with vexatious and repeated requests as a result of insufficient clarity in the section 14 provisions, and the consequent need to produce substantial evidence of proof. The exemptions in sections 35 and 36 of the Act have not afforded Departments the protection for the “policy-making space” that they feel is required. Strengthening the exemptions under sections and 35 and 36 would speed up the task of considering and responding to requests for details of early policy discussions and the decision-making process. Finally, there is a need for clarity about whether requests for information fall under the FOI Act or under the Environmental Information Regulations (EIR) 2004.

What are the strengths of the FOI Act?

Public Service and Accountability

6. The FOI Act promotes accountability and transparency in general, and facilitates the disclosure of information both proactively and in response to requests, in particular. Indeed, departments are more open and accountable in that their FOI performance is measured regularly through the publication of quarterly and annual reports. Ordinary members of the public continue to be the biggest category of requester, which suggests that the process of submitting requests is sufficiently straightforward and comprehensible. This is in keeping with initial policy objectives. It should be noted that a significant—though unquantified—number of requests are submitted by members of staff. This is not always interpreted as a good trend, as the requests tend to focus narrowly on the interests of individuals and not on the more strategic or organisational issues.

Codes of Practice

7. The section 45 (discharge of public authorities’ functions under Part 1 the FOI Act), and section 46 (records management) Codes of Practice have been issued and revised since the FOI Act received the Royal Assent. They provide a sound framework which facilitates public authorities’ compliance with the provisions of the legislation. Public authorities have also benefitted from the refinement of guidance issued by the Ministry of Justice (and its predecessors) and the Information Commissioner’s Office, and the emergence of case law. Overall, the quality of the content of responses from Departments has improved over the years.

Information and Records Management

8. Several departments comment that the FOI Act has proved to be a useful instrument for raising the profile of records and information management, for encouraging better record keeping, and for increasing awareness of the value in managing information as a key corporate asset.

What are the weaknesses of the FOI Act?

(i) Fees Regulations

9. All departments agree that FOI compliance is burdensome, and that the range of activities that can be taken into consideration in determining cost is very limited. Furthermore, there is general agreement that searching, identifying and retrieving information (which count towards the cost) is usually a straightforward process but that the reading of the documents and information, consulting third parties, considering the use of exemptions, composing public interest tests, and redacting (which do not count towards the cost) are all very labour intensive and time-consuming activities.

10. If requests are estimated to exceed the cost limit of £600, the policy of the Departments is to contact the requester (offering advice and assistance under the section 16 provisions), and seek to narrow the scope of the request so that the cost comes within the limit—between 2005 and 2010 only 88 requests have been refused outright on the grounds of cost. The process of providing advice and assistance and the often related activity of seeking clarification of a request is time-consuming and is not an activity that counts towards the cost limit; that process represents a significant burden on Departments. Furthermore, it is worth noting that the ability to aggregate requests under the Fees Regulations or to use section 14(2) for dealing with repeated requests is curtailed somewhat, as it is difficult to determine whether or not requesters are using pseudonyms.

11. Departments note that round-robin requests are particularly burdensome, and that the situation is not helped by the fact that each department is a separate legal entity under the FOI Act. Requesters—whether they are from the media or members of the public (including staff)—tend to seek information on a NI Civil Service basis, and it is relatively easy for them to send the same request to 12 different Departments. And, any time departments have mentioned the FOI burden on the NI Civil Service as a whole when corresponding with the Information Commissioner, he reminds them that the burden on the central government sector does not come into the reckoning. For example, the Office of the First Minister and deputy First Minister (OFMDFM) was advised recently (2011): “I would remind you that each department is a separate public authority under the [FOI] Act, therefore OFMDFM should only be considering the effect of requests on its own efficiency.”

12. Since devolution (May 2007) the number of round-robin requests has increased. In 2011, 74 out of the 173 requests received by OFMDFM have been round-robins (43%). In most cases, the round-robins received by OFMDFM were received by the other Departments—the exact proportion of round-robins within the total number of requests received will vary slightly from department to department.

13. It is a point worth noting that the devolved administration in Northern Ireland is at a clear disadvantage compared to the administrations in Scotland and Wales: a round-robin request sent to the NI Departments generates twelve separate responses, whereas a request to either the Scottish government or the Welsh government generates one response.

Departmental Recommendations

14. The recommendations on the fees issue listed below emerged from the considerations of individual Departments, and do not represent a composite (unified) view of all the NI Departments:

Extend the range of activities that can be counted towards the cost limit of £600;

Allow the NI Civil Service to aggregate the costs to individual Departments of responding to round-robin requests;

The section 12 provisions in relation to the introduction of fees charged to applicants for complying with requests need revision. FOI legislation is within devolved competence but the way in which the power to introduce fees is framed suggests that only the Secretary of State may make the necessary regulations. Therefore, section 12 should be amended, so that the NI Departments can also make fees regulations; and

Levy a reasonable nominal fee before a request is accepted; and strengthen the section 8(1) provisions, with a view to obtaining identity information from requesters.

(ii) Vexatious Requests

15. The burden of handling what appear to be vexatious requests has been a common complaint of the Departments. FOI legislation was intended to provide the public with greater access to information on the background to decisions made by public authorities impacting on their lives. Unfortunately, the Act is often abused by individuals with an “axe to grind”. They use the legislation as a weapon against the public authority. There is a need to revisit the areas of clarity and validity of requests and vexatious requests. At present section 14 of the Act does not provide sufficient protection against abuse, whether the source is an aggrieved individual, who may be in dispute with the Department, or a journalist, many of whom submit very broad or multi-layered requests in the hope of uncovering a story (“fishing expeditions”).

16. While guidance on the subject from the Ministry of Justice and the Information Commissioner has been refined over the years, as a consequence of the processing of complaints cases involving the issue of vexatiousness, the absence of a clear definition of what constitutes a vexatious request means that departments have to put a substantial amount of resources (eg, compiling dossiers of relevant correspondence and researching relevant decisions of the Information Commissioner and Information Tribunal) into defending a decision to engage section 14(1) of the FOI Act. Because of the significant outlay on resources, Departments are coming to the conclusion that it is often more costly to refuse a request under section 14(1) than to respond to it.

Recommendation of the NI Civil Service Departments

Section 14 should be amended to include a clear definition of what constitutes a vexatious request.

(iii) Operation of exemptions

17 Several Departments believe that “restrictions” on the application of section 35 (formulation of government policy) are having a negative impact on the openness of officials in providing written advice to Ministers. While it is accepted that there is scope within the current legislation to withhold such advice, the decisions of the Information Commissioner and the Information Tribunal tend to limit or “restrict” the attempts of public authorities to protect the “policy-making space”: the resultant “chilling” effect therefore tends to undermine rather than promote better decision-making. Similar views have been expressed in relation to the application of section 36, particularly section 36 (2)(b), which concerns the provision of free and frank advice and the free and frank exchange of views for the purposes of deliberation.

18. It is also been suggested that the disclosure of more information to the citizen through the FOI Act may have a detrimental effect on the quality of official documents, particularly the level of detail recorded, for example, in minutes of meetings and of discussions about policy decisions. Consequently, there is a risk that information available to the citizen in future under the “30-year rule” (“20-year rule” should the FOI provisions in the Protection of Freedoms Bill receive the Royal Assent) will be less detailed than might otherwise have been the case, leading the public to question or mistrust the official record. Such an outcome would not be in keeping with the FOI legislative objectives.

Recommendation of the NI Civil Service Departments

Strengthen the exemptions in section 35 and 36 of the FOI Act.

(iv) Boundary between Environmental Information Regulations (EIR) and FOI regimes

19. There is a need for greater clarity about whether requests for information fall under the FOI Act or should be dealt with under the EIR. NI Departments are of the view that the tests for determining whether information is “environmental”, as set out in Regulation 2(1), are not sufficiently clear enough to provide a legal dividing line between environmental and other information. For example, the Department of Agriculture and Rural Development (DARD) would regard a request for information about the effects of cattle and sheep grazing on the Mourne Mountains or the disposal of waste from a meat plant as falling under EIR. However, if the request focussed on who owned the grazing rights in the Mournes or on the throughput or product destination of the meat plant, then DARD would consider the request to fall under the FOI Act, as it would cover (third party) personal information and/or economic rather than environmental issues. DARD’s determining factor would be whether or not the core issue is environmental or wider. This is not the interpretation of the Information Commissioner and the Information Tribunal; they are directing that requests that relate to land use, fisheries, forestry, etc,—even where the nature of the enquiry is financial or economic rather than directly about the impact on the environment—should be dealt with under EIR.

Recommendation of the NI Civil Service Departments

A re-wording of the FOI Act and EIR to make it clear what information falls within each regime.

A list of all recommendations is provided at Appendix 2.

February 2012

APPENDIX 1

LIST OF THE NI DEPARTMENTS

Department of Agriculture and Rural Development (DARD)

Department of Culture, Arts and Leisure (DCAL)

Department of Education (DE)

Department for Employment and Learning (DEL)

Department of Enterprise, Trade and Investment (DETI)

Department of the Environment (DOE)

Department of Finance and Personnel (DFP)

Department of Health, Social Services and Public Safety (DFP)

Department of Justice (DOJ)

Department for Regional Development (DRD)

Department for Social Development (DSD)

Office of the First Minister and Deputy First Minister (OFMDFM)

APPENDIX 2

LIST OF ALL RECOMMENDATIONS

Extend the range of activities that can be counted towards the cost limit of £600;

Allow the NI Civil Service to aggregate the costs to individual Departments of responding to round-robin requests;

The section 12 provisions in relation to the introduction of fees charged to applicants for complying with requests need revision. FOI legislation is within devolved competence but the way in which the power to introduce fees is framed suggests that only the Secretary of State may make the necessary regulations. Therefore, section 12 should be amended, so that the NI departments can also make fees regulations; and

Levy a reasonable nominal fee before a request is accepted; and, strengthen the section 8(1) provisions, with a view to obtaining identity information from requesters.

Note: The recommendations on the fees issue listed above emerged from the considerations of individual Departments, and do not represent a composite (unified) view of all the NI Departments.

Section 14 should be amended to include a clear definition of what constitutes a vexatious request;

Strengthen the exemptions in section 35 and 36 of the FOI Act; and

A re-wording of the FOI Act and EIR to make it clear what information falls within each regime.

Prepared 25th July 2012