Justice CommitteeWritten evidence from the Telegraph Media Group

Executive Summary

1. Telegraph Media Group (“TMG”) welcomes this opportunity to make some broad comments about the operation of the Freedom of Information Act (“FoIA”).

2. We understand that some of our journalists will be making personal responses about their own detailed experiences in making Freedom of Information (“FoI”) requests.

3. The FoIA has allowed the public to learn more how public bodies operate. This is welcome. But it is also acknowledged that since the introduction of the FoIA, there has been a cultural shift within some public bodies—albeit not likely to be connected to the Act—publishing more information proactively.1 These moves are healthy for democracy but they do not go far enough.

4. TMG believes that there needs to be a fundamental cultural shift toward transparency and the release of information within many public bodies. Any changes to extend FoI must also be accompanied by further measures to address this culture, as legal changes alone will not go far enough in assisting this shift.

5. Some TMG journalists describe making an FoI request as a “tortuous” exercise. They know that obstacles will be erected with the purpose of preventing the release of information.

6. TMG have found that, where a request has been successful, FoI is often more useful in extracting low-level, statistical information rather than the release of whole documents.

7. Many public bodies are more concerned with protecting their own executives’ or corporate reputation than enhancing the public good in revealing information.

A Cultural Change

8. There is an important distinction between information that a body has chosen to make public, and information that has been extracted by other means such as successful FoI requests, both on and off-record briefings, or whistleblowing.

9. TMG are concerned to read in the Ministry of Justice’s (“MoJ”) Memorandum that a key theme of public bodies’ responses to the IPSOS research is that requests from journalists have been perceived as a “drain” on resources, with the thought that responding to requests is not a good use of public money.

10. Obviously, there is a cost to the operation of the FoIA across public bodies. But public bodies should not be given new powers to reject requests nor allowed to make subjective judgements about which sorts of requests are worthy of answering, or given the power to inquire into the reasons why the information is wanted.

11. We also note that examples of spurious requests have been cited as a reason for increased costs in administering FoIA.2 We would have thought that any “spurious” requests for information, if properly administered, could still be responded to both very quickly and cheaply, and the existing exemptions of the Act are sufficient.

12. The Committee may find of use just a few example headlines of how the FoIA is essential in allowing the public to be told about how public authorities operate. The Committee will agree that these stories are undoubtedly in the public interest, and should note that the information was not proactively released by any of the public authorities:

(a)Secret correspondence shows British helped Libya secure Megrahi release.3

(b)Taxpayers pick up £68 million bill for thousands of union reps.4

(c)Hospitals attacked over “outrageous” £32 million car park profit.5

(d)Lawyers paid £11 million for immigration cases.6

(e)Hundreds of police officers caught illegally accessing criminal records computer.7

(f)Councils pay for prostitutes for the disabled.8

Operation of the Act

13. The FoIA, as it currently operates, should be considered as a mere hand chisel picking away at a rock of secrecy. Cultural change is required.

14. Whilst it is difficult to generalise, in Sweden and New Zealand freedom of information is more ingrained in public bodies.

15. We believe that a view “is there any reason why this document or information should not be published?” is more conducive to a transparent democracy than the culture within many UK public bodies. This change would also help assist the move to a twenty year release of information, which we fully support.

16. Some of our journalists feel that FoIA is being abused to worsen the amount of information available to the public. Before the FoIA a phone call to a press office would be sufficient to clarify or obtain information. Today a practice has developed whereby many press offices “brush off” requests from journalists. Nowadays journalists are often informed that they should make an FoI request for that information. This is an unwelcome development, and does nothing to enhance transparency.

17. We advise the Committee to look at the Iraq Inquiry website.9 Hundreds of documents that have been declassified and released. Without the Chilcot Iraq Inquiry, we feel that it would have been impossible for the public to have ever seen all of these documents through making an FoI request.

“Playing the Game”

18. Some journalists consider that by making FoI requests they are beginning a “war of attrition”. They know it is likely they will be unsuccessful in obtaining the information quickly. It would be clear what information is being sought, but it is also well know that many public bodies will erect obstacles to prevent the disclosure. Examples of these barriers would include a lengthy internal review, or invoking a “public interest test” well after the initial request has been made.

19. In an attempt to counter this development, some journalists have now built relationships with FoI staff within organisations. They will often put in an unofficial call before submitting a request to seek guidance on how best to word their formal requests to counter any potential barriers imposed by that organisation. These relationships would have only once existed with press officers.

20. We also know that some Ministers and Special Advisers are aware of information that they know their civil servants would not want to be made public. On a number of occasions our journalists have been advised to submit FoI requests by Ministers or Special Advisers, with the hope that civil servants will be forced to release information they were resistant to release.

21. We are also aware of a culture of conversations being taken “offline” (ie not on email or paper memorandum) so that there is no record of a conversation, discussion or debate, for fear that information within emails could, at some point, have to be released.

Transparency

22. The Committee should consider whether increasing the current time and cost limitations would enhance transparency and democracy.

23. Calls to include “consideration” and “redaction time” of FoI requests should be resisted. This could be open to further abuse, and would only serve to slow down the release of information.

24. There should be a statutory time limit on the time allowed for an internal review. Internal reviews can often take too long.

25. We expect the Committee will be presented with lots of evidence of the challenges presented in attempting to obtain information by individuals and journalists. The Committee may like to consider the inclusion of a new clause within the Act that makes it an offence for any individual or organisation to take steps that unnecessarily frustrates the release of information.

Imposing Costs on Transparency

26. We believe that ever imposing costs on those making FoI requests is both unjust and unacceptable.

27. Newspapers and journalists exist to ask questions of those in power on behalf of the public. Any impediment to this, financial or otherwise, would be unacceptable.

28. Cultural shifts, discussed earlier would see costs reduced.

Chilling Effects

29. It has been suggested that “identity checks” could be made on those making FoI requests.10This is worrying, and we fundamentally oppose it.

30. We believe identity checks are intimidating, but they would disproportionately affect individuals rather than newspapers.

31. If the information is available, it should be of no significance who the requestor of the information is, or why they want to know that information.

32. Notwithstanding the fundamental argument, implementing such a system would only serve to increase both the costs and time in responding to requests.

33. The website www.whatdotheyknow.com provides a valuable free service, and allows FoI requests to be submitted to a public authority without the requestor giving their personal details. Importantly, this service is run without any funding from government. As some public authorities do not publish each and every FoI request they receive, it assists with transparency.

Government Agenda

34. The Deputy Prime Minister said in a speech last year that in relation to information that “our starting point is always maximising transparency in the public interest—moving from a closed society to an open society.” We also welcome within that speech plans to extend the scope of the Act to other bodies.11

35. However, despite these welcome announcements from government, it is unfortunate that a view has emerged that responding to FoI requests are considered a “drain” on resources.12

36. We believe that all private sector contractors who enter into contracts with public authorities to fulfil their public functions should be designated for the purposes of the FOIA Act, as the Act permits under section 5(1) (b). This is important for the public to continue to have access to important information.

Conclusion

37. Whilst public bodies may now publish more information, the crucial difference is that FoI allows information to be extracted that the body itself has chosen not to publish.

38. There needs to be a cultural shift within public bodies, all documents and information should be approached with the mentality “is there any reason why this information should be made public?”.

39. TMG oppose any form of introduction of fees, and believe that any moves to further impede access to information, such as reducing time limits is unacceptable.

40. Conversely, the Committee should consider whether any increase in the time and cost limitations would enhance transparency and democracy.

41. There should be a statutory time limit on the time allowed for an internal review. Internal reviews can often take too long.

42. Costs of FoIA could be reduced if public bodies did not serve attempt to create barriers in preventing the release of information.

February 2012

1 Memorandum to the Justice Select Committee, MoJ, December 2011. Pg 45

2 Memorandum to the Justice Select Committee, MoJ, December 2011. Pg 110

3 http://www.telegraph.co.uk/news/worldnews/africaandindianocean/libya/8306228/Secret-correspondence-shows-British-helped-Libya-secure-Megrahi-release.html

4 http://www.telegraph.co.uk/news/politics/8815280/Taxpayers-pick-up-68m-bill-for-thousands-of-union-reps.html

5 http://www.telegraph.co.uk/health/healthnews/8556490/Hospitals-attacked-over-outrageous-32m-car-park-profit.html

6 http://www.telegraph.co.uk/news/uknews/immigration/8455704/Lawyers-paid-11-million-for-immigration-cases.html

7 http://www.telegraph.co.uk/news/uknews/crime/8713194/Hundreds-of-police-officers-caught-illegally-accessing-criminal-records-computer.html

8 http://www.telegraph.co.uk/health/7945785/Councils-pay-for-prostitutes-for-the-disabled.html

9 http://www.iraqinquiry.org.uk/transcripts/declassified-documents.aspx

10 Memorandum to the Justice Select Committee, MoJ, December 2011. Pg 106

11 http://www.dpm.cabinetoffice.gov.uk/news/civil-liberties-speech 7 Jan 2011

12 Memorandum to the Justice Select Committee, MoJ, December 2011. Pg 112

Prepared 25th July 2012