Justice CommitteeWritten evidence from Request Initiative

Executive Summary

The Coalition government came to power promising “the extension of the scope of the Freedom of Information Act to provide greater transparency.” David Cameron when becoming prime minister personally committed himself to “open and accountable government”.1 The government has launched the Transparency Initiative which has resulted in large amounts of information held by public bodies being published, which is commendable. However, some of the proposals in the Ministry of Justice (MoJ) memorandum on FoIA threaten to undermine the coalition’s commitment to transparency and interfere with on the public’s right to access information.

This submission will present evidence that the cost of implementing the Freedom of Information Act are now falling while the number of requests is increasing to suggest that public departments are delivering greater value for money. The submission will then discuss the quality and quantity of public-interest information disclosures. The use of the act has demonstrably supported transparency and increasing public awareness of public functions. The use of public money is both more transparent and accountable. It is therefore argued that the costs associated with FoIA are a sound investment and that the “public interest” must continue to be served and protected.

Request Initiative is a not-for-profit community interest company which makes requests on behalf of charities and NGOs acting in the public interest. We argue that there needs to be a stronger legal definition of the public interest and that the test should be applied to all exemptions, removing absolute exemptions from the legislation. Request makes the case that fees should not be introduced for making FOIA requests. However, if the Committee is determined to introduce fees then this submission argues that the public interest test should again be incorporated. It is also recommended that the Committee reconsider how the Data Protection Act fits with the FoIA with the suggested solution again being the application of the public interest test. Finally, this submission asks that the Commission consider in detail the potential benefits of expanding the scope of the act to cover more public authorities and private companies undertaking public work.

About Request Initiative

Request Initiative is a non-profit community interest company that makes Freedom of Information Act (FoIA), Environmental Information Regulations (EIR) and Data Protection Act (DPA) requests for charities and non-governmental organisations (NGOs) within the context of investigative research. Request Initiative also conducts its own investigations into areas of public interest.

Costs

The implementation of the FoIA has resulted in significant costs for public bodies. Requests to local authorities have risen by more than 300%, [OVER WHAT PERIOD]. However, the costs associated with processing requests is falling. Research by the Constitution Unit, University College London estimates that in 2009 local authorities spent a total of £37million responding to 165,000 requests. In 2010 this cost dropped to £32 million despite the higher number of requests received, 198,000.2 The UCL research is significant in scope as they received “substantive responses” from 104 FoIA officers working in local authorities.

The research shows that the time, and therefore cost, of responding to requests has steadily declined since the legislation was enacted. In 2005 an FoIA request took an average of 16.4 hours to answer but in 2010 it took just 6.4. Costed at £25 per hour this represents a drop from £410 to £160 per request, on average.

Table 1

Year

Estimated number of Requests

Average hours per request

Total estimated cost of FOI to English local authorities (in £millions)

2005

60,361

16.4

24.7

2006

72,361

13.1

23.6

2007

80,114

15.3

30.6

2008

118,569

11.6

34.3

2009

164,508

8.9

36.6

2010

197,737

6.4

31.6

Source: see footnote

Reasons for the reduction in costs might include the increasing expertise and experience of information officers and better information management on the part of public bodies. It can be reasonably assumed that costs will continue to be reduced, as the rate of fall has remained significant (see Table 1).

The UCL research does not cover departments of state. Helpfully, this data is collected by the MoJ, along with data on “other monitored bodies”. There has not been a significant increase in the number of FoIA requests to departments of state. requests to departments of state and other monitored bodies have increased by just 15% over the first five years of the act being in place, from 38,108 in 2005 to 43,921 in 2010.3

The requests made to departments of state and other monitored bodies in 2010 represented only 22% of the total requests submitted across the country. Moreover, departments of state and other monitored bodies will have likely benefitted from some of the advantages local authorities used to drive down costs, such as experience and better information management. However, there is no estimated response time (and therefore cost) figures.

Table 2

Year

Requests to departments of state and other monitored bodies. * taken from MoJ annual reports on FoIA

Requests to local authorities. * taken from UCL Constitution unit

2005

38,108

60,361

2006

33,688

72,361

2007

32,978

80,114

2008

34,950

118,569

2009

40,548 

164,508

2010

43,921

197,737

Source: see footnotes 178 and 179.

The evidence suggests that the costs of implementing the FoIA have been borne largely by local authorities, where the number of requests has increased year on year. However, the processing costs of each individual request has fallen consistently since 2005 meaning that the total cost to the taxpayer has not run out of control. There is evidence that administrators of FoIA are significantly driving down costs, meaning changes to the fees regulations would be unnecessary in terms of reducing costs while being detrimental to the public interest in ensuring transparency.

Request Initiative would also suggest that better information management in public bodies is in itself a positive outcome and could have led to savings in staff time in processes not related to FoIA, although we are not in a position to offer any evidence for this argument. It is also highly likely that many requests for information, for example from regional media, would have been processed before the implementation of the act and that these costs would have been borne by public bodies if invisibly as part of its every day functions.

The Public Interest

Request Initiative argues that the public interest test should be incorporated more widely and defined more clearly in the FoIA. There should be a public interest test in each of the exemptions, including those relating to national security, personal data and cost limitations. There should not be any total exemptions and all exemptions should be qualified by a public interest test. This argument is perhaps most contentious when applied to the secret services but even in this case the public authority should be able to give a clear and convincing case as to why information should not be disclosed. This could, at the very least, be conducted in camera. It seems a circular argument to argue that it is in the national interest not to disclose any information about the security services and therefore a total exemption should apply. There will be many instances where the possibility of disclosure will ensure probity and efficiency even within these departments.

The public interest test is vital to qualified exceptions and is a term often relied upon in the act. However, it is very poorly defined. The Committee should take this opportunity to give a clear, accessible and unambiguous definition of the public interest including key tests which need to be met and some mechanism by which the legitimate interests of the public can be weighed against conflicting interests, including those of the right to privacy. Request Initiative believes this measure alone would seriously reduce the amount of requests that are contested, and the number which are taken to the Information Commissioner’s Office, to tribunal and to the Supreme Court. This would reduce costs for public bodies and perhaps more importantly significantly reduce the delay in disclosing information.

The great virtue of the FoIA is that it serves the public interest. Notable examples of the public interest being served by disclosures under the FoIA include the examination of MPs’ expenses4 and the revelation that the Department of Trade and Industry lobbied the US on behalf of BP for drilling rights of Iraq’s oil reserves in 2002, six months before the war began.5 We have seen that disclosures made under the FoIA have the capacity to change law and policy while also informing the documentation of history at a profound level. However, not all FoIA disclosures as momentous as the examples given above.

Research by Request Initiative indicates there are more than 200 FoIA news articles published in the UK national press each month. The majority of these disclosures serve the public interest. For example, let us examine the FoIA disclosures in the week this submission was written (Januart 22 to January 29, 2012). In that time period the following disclosures were reported:

More than a third of the 32 serving police and support officers in Wales who broke the law in the past five years kept their jobs.6

London hospitals write off up to 96% of bills owed by foreign patients.7

Companies including BP and Google pay £1,800 a time to dine with ministers and civil servants.8

A third of debts owed by poor countries to UK is interest on original loans.9

Colleges are running out of support funds for students in Scotland, even before cuts of £11 million are imposed.10

More than 600 convicted killer drivers are driving again on UK roads.11

JB Priestley, Roald Dahl, Lucian Freud and LS Lowry are among the 277 people who have turned down honours.12

Google and Bing have been accused of directing users to illegal copies of music.13

£120,000 for a BRUISE! Compensation pay-out to police officers criticised as forces pay out £12 million to staff.14

£335,000 of taxpayers’ money goes on giant toadstools sculpture in muddy Dorset field to mark London games.15

Each of these 10 stories contributes to debate on matters of key public interest including policing, healthcare, government lobbying, international aid, further education, road safety, the royal family, copyright infringement, compensation payouts and Olympic expenditure. It is reasonable to surmise that FoIA has resulted in a significant increase in information which has been disclosed in the public-interest.

The above disclosures are diverse in nature and in terms of the people who hade the original request. It does not appear from this evidence that the FoIA is exploited by special interests or groups of a particular political persuasion, nor do the disclosures reflect any particular regional bias. The information above reflects local and international issues and concerns on the political left and right.

In the MoJ’s memorandum, FoIA officers expressed some resentment at journalists’ use of FoIA. This raises the question: why is the media being attacked over its use of FoIA? The stories listed above appeared on the BBC, the Daily Mail, the Daily Mirror, the Daily Telegraph, the Guardian and the Scottish Herald. Journalists, when working on stories in the public interest, speak on behalf of the public including on occasion marginalised communities who do not have the resources to represent themselves or conduct their own research. Moreover, journalists enjoy a platform on which to raise public awareness of information disclosures. It could be argued that the public interest is served by journalists making FoIA requests since they have the resources to make the information available to broader sections of the public.

If the object of FoIA is to enhance civic engagement and inspire new relationships between the citizen and public bodies through greater accountability, then it is to some extent working. The increasing number of requests and the diverse and frequent public-interest information disclosures are testimony to this. Rising numbers of requests should also be understood as the result of successful policy and to legislate to mitigate further increases would be counterintuitive.

The FoIA is an important part of our democracy and requests have lead to some of the most important political revelations of the decade. But the public’s interests are also served on a daily basis by the Act, enriching public life and fostering civic engagement. The media have proven capable of using the FoIA responsibly to publish information in the public interest on a daily basis.

Fees Regulations

The Committee has heard evidence from FoIA officers that the act can be a burden on public authorities and some have suggested that the cost limit for requests be reduced. It has been suggested that the fees regulations should be modified to include the time taken to consider requests and redact information.

Request Initiative argues that the costs of Freedom of Information requests are justified because of the social and economic benefits that public-interest information disclosures provide by way of informing debate and ensuring accountability. There is serious concern that enabling public bodies to include the cost of redacting documents when considering whether an exemption should be applied on costs grounds would lead to a significant reduction of the amount of information disclosed. The most important information in terms of the public interest is often the most contentious. Making redactions to documents is cost intensive and such a measure is likely to result in swathes of information no longer being made available. It will also be difficult to cost the process of redactions accurately and there will be a temptation for officers to err habitually in favour of non-disclosure. A public body which is reluctant to release any information will be given significantly increased powers of discretion over which information should be released and this may on many occasions not best serve the public interest. There is a serious concern that raising fees would be discriminatory on the basis that some members of the public would be unable to access information because of limited incomes. It seems wholly unfair that a tobacco company, for example, would have greater access to publicly funded and publicly held information than deprived communities—perhaps those suffering from cancer—based purely on their financial situation.

However, if the Committee is intent on making changes to the fees regulations then measures should be introduced in ensure that the public’s right to access information on matters of public interest should be safeguarded. This submission states why the public interest test should be used to greater effect within the FoIA. Specifically, the public interest test should be used in balance with the consideration of costs. This would mean that public authorities would only be compelled to meet the costs of redacting and then disclosing information when it had been judged that the release of information was in the public interest. This would reduce the cost of “frivolous” requests while ensuring that the public interest in ensuring accountability and transparency was not negatively impacted. Research by UCL’s Constitution Unit shows that FoI officers believe businesses are responsible for 25% of all requests submitted to local authorities. If it could be shown that replying to these requests was in the interests of the company but not of the public more generally then they could be refused on costs grounds or could result in a cost-only fee. This could result charges being levied for around 50,000 requests.

There are alternatives to implementing fees. Research conducted by the ICO suggests that although overall compliance is good, there is still not a culture of openness in many public bodies. This can result in the mishandling of requests by public bodies, evidenced by the 55% of complaints that are upheld or partially upheld at the ICO in 2011.16 One solution to this would be to endow the ICO with the power to monetarily penalise authorities that are deemed to be “repeat offenders”. Here, the threat of a fine could incentivise authorities who operate poor information management and FoIA administration systems to improve their efforts.

Data Protection and Public Interest

The FoIA is perhaps weakest where it interplays with the Data Protection Act, exemptions under Section 40(2) of the Act. Public bodies routinely redact information which it considers to be personal data. The guidance and rulings of the Information Commissioner’s Office have shown that public figures of seniority should be named under the act. However, there remains significant scope for further legal definition and guidance as to what personal data should be disclosed. It is also notable that members of the public have often had to resort to the highest courts to ensure that personal data is released. Request Initiative has experience in its work personal data of the people actually making the requests has been withheld despite the fact they have explicitly stated that they are entirely happy for that information to be released. The Charity Commission had redacted the names of MPs who have been named by their constituents as having received correspondence. This was overturned at the internal review level but shows that at this public body there is a presumption that data protection means almost all names should be redacted.

The Data Protection Act states that personal data must be processed “fairly and lawfully”. There is little in law or in cases at the Information Rights Tribunal to define what is “fair”. It has been argued that “fairness” applies to the public generally and not just to the individual who is the data subject. However, it would be hugely beneficial if the data principal could be replaced with a public interest test. This could be achieved by the FoIA being revised so that it takes precedent over the Data Protection Act and contains within it the legal protections needed to ensure the individual’s right to privacy rather than deferring the matter to another, older, piece of legislation. The case for a broader, more powerful and better-defined public interest test has already been made but is clearly relevant in this case.

Private Companies and Public Interest

The FoIA has been a success on a number of grounds, however, there is considerable scope for its improvement by way of extending the Act’s schedule to a far greater number of public bodies and private companies who are contracted to do public work.

The argument to include private companies contracted to do public work is particularly strong. The companies are providing a public service and are funded with public money. Therefore they should be accountable to the public. As the UK faces increasing privatisation the general transparency of institutions is diminishing. Barnet Council, for instance, has been wholly privatised. But, as taxpayers, citizens have a right to know how the public services they fund are managed and delivered, regardless of the legal form of the provider.

Request Initiative is particularly concerned about the application of the FoIA to private education institutions. We note that almost all universities in the UK currently come under the FoIA with the exception of two privately run institutions including the University of Buckingham. This current situation is in itself inherently unfair as it creates an uneven playing field within the education sector. In particular, you have a situation where Lord Lawson has been given an honorary doctor of science from the University of Buckingham, not covered by FOIA, less than a year after criticising the University of East Anglia for not releasing information under the FOIA.

There is considerable concern about the future. The coalition government’s proposed changes to the funding of universities have extremely wide implications and within the broader public debate the impact on the transparency of information held by further and higher education institutions has received little attention.

Under the government’s plans, a great number of new private providers of higher education are entering the market while the budget for public universities continues to shrink. Many of these new universities will be private companies and, under the current legislation, not subject to FoIA. These new universities are being “designated” access to the Student Loan Company, meaning their students can access taxpayer funded loans and grants for their fees and maintenance costs. Thousands of students at over 150 private universities are now accessing public funds to pay for their private educations and this figure is projected to grow rapidly. But private universities will be exempt from FoIA under current legislation, despite their reliance on public money.

As institutions conducing research and education this means that a significant and important area of knowledge creation will no longer be transparent and open to public scrutiny. While it is understood that many universities may in fact be in favour of not having to respond to requests it seems self evident that this is not the best course to ensure that the public interest is guaranteed in the delivery of research and education.

Conclusion

The coalition government when coming to power promised to extend the FoIA and has implemented the Transparency Initiative to make more information available for the public. However, public bodies have expressed considerable concerns about the impact of implementing the act especially in terms of costs to the taxpayer. Request Initiative has argued, based on the evidence provided, that the costs both to central and local government are no longer rising. We suggest that considerations of costs have to be weighed against the benefit in ensuring the public interest is served, including the obvious and common sense advantages of transparency and accountability.

Request Initiative also suggests that a new clear and unambiguous definition of the public interest needs to be introduced to the act. We believe that many of the contested requests including the complaints to the ICO, appeals to the information rights tribunal and cases before the Supreme Court turn on disputes about the balance of public interest against other considerations including confidentiality and privacy. A clearer definition of the public interest would reduce such conflicts and greatly reduce costs. A public interest test could also be introduced to any fees regime to ensure public money is not spent on “frivolous” requests while important public interest requests still result in disclosure. We also believe that a public interest test should be included within exemptions under Section 40 (2) of the act, relating to personal data. Finally, we argue that the public interest is pest served where private intuitions conducting public services and roles with public money should be covered by the act by a much greater degree than is currently the case, including within the education sector.

1 http://www.number10.gov.uk/news/press-conference-on-the-coalition-our-programme-for-government/

2 FOIA 2000 and local government in 2010: The experience of local authorities in England: Constitution Unit, University College London; Gabrielle Bourke, Jim Amos, Ben Worthy, Jennifer Katzaros.

3 Second Annual Report on the operation of the FOI Act in Central Government 2006, Third Annual Report on the operation of the FOI Act in Central Government 2007, Annual Statistics on the operation of the FOI Act in Central Government 2008, 2009 Annual Statistics on implementation in central government, Statistics on implementation in central government 2010 Annual and Q4: October - December 2010: The Ministry of Justice.

4 http://www.telegraph.co.uk/news/newstopics/mps-expenses/

5 http://www.fuelonthefire.com/index.php?page=documents

6 http://www.bbc.co.uk/news/uk-wales-16508670

7 http://www.bbc.co.uk/news/uk-england-london-16711783

8 http://www.dailymail.co.uk/news/article-2091461/Cash-access-row-reignites-companies-pay-1-800-time-dine-ministers-civil-servants-exclusive-Chemistry-Club-events.html#ixzz1kYdKhlWT

9 http://www.guardian.co.uk/world/2012/jan/22/poor-countries-debt-uk-interest?newsfeed=true

10 http://www.heraldscotland.com/news/education/college-cash-for-bursaries-running-out.16541427

11 http://www.mirror.co.uk/mobile/topnews/2012/01/23/more-than-600-convicted-killer-drivers-allowed-back-on-the-road-115875-23713164/#ixzz1kYddxbDh

12 http://www.telegraph.co.uk/news/uknews/honours-list/9039608/Official-JB-Priestley-Roald-Dahl-Lucian-Freud-and-LS-Lowry-among-277-others-turned-down-honours-from-the-Queen.html

13 http://www.guardian.co.uk/technology/2012/jan/26/google-bing-illegal-music?newsfeed=true

14 http://www.dailymail.co.uk/news/article-2092578/Police-compensation-payouts-12million-including-120-000-bruise.html#ixzz1l29w8d72

15 http://www.dailymail.co.uk/news/article-2092558/London-2012-Olympics--335k-taxpayers-money-spent-toadstools-sculpture-Dorset.html#ixzz1l2A4dNgy

16 Information is the currency of democracy - annual report: 2011; Information Commissioner’s Office.

Prepared 25th July 2012