Justice CommitteeWritten evidence from Ofcom

Ofcom is the independent regulator and competition authority for the UK communications industries, with responsibilities across television, radio, telecommunications, wireless communications and postal services. Our primary duty is to further the interests of citizens and consumers.

Question 1: Does the Freedom of Information Act work effectively?

We are a strong supporter of the Freedom of Information Act and the release of information. We are committed to being as open and transparent as possible and have always endeavoured to make the maximum amount of material available to the public. Our website contains substantial amounts of information and data, including freedom-of-information requests and responses so requesters can see what material has been provided as often different requesters will ask for the same material.

Since the Act came into effect, we have received approximately 3,800 requests (750 a year on average) for information. We supply, on average, 75–80% of what is requested. Our retention of material, using the permitted exemptions, is rarely challenged by requesters. We have a relatively small number of internal reviews annually and an even smaller number of cases (approximately six a year) escalated to the Information Commissioner. We have only had two cases referred to the Information Tribunal, both of which related to the interpretation of the Tribunal’s powers rather than to our legitimate use of an exemption to withhold information. In both instances, the Tribunal found in our favour. In 2011, we spent a total of 6,723.35 hours (960 working days) on freedom-of-information requests. This equates to approximately four full-time-equivalent staff.

We believe all the exemptions in the legislation work well and are appropriate. The one provision about which we have some concerns is the 18-hour rule. In practice, we have only applied this rule to 70 cases (ie 2% of the total we have received). However, the fact the rule can only be applied to the retrieval of information and not to its redaction once found does create a burden for us.

Although it is often relatively straightforward to retrieve information, searching through it to remove names (for data-protection purposes, specifically in emails) or to apply exemptions is very time-consuming. We would therefore welcome consideration being given to enabling redaction time to be included in the time-restriction rule to reflect the extra time pressure this adds and would be content to see the time limit for handling requests increased as a consequence.

Question 2: What are the strengths and weaknesses of the Freedom of Information Act?

The legislation has enabled information genuinely helpful to the public at large to be made available when previously it was not. The Act provides a number of exemptions that are appropriate and work well.

In terms of weaknesses, complying with the legislation has increased our costs. We have a central team of three colleagues that coordinates all freedom-of-information requests and then supervises colleagues elsewhere in the organisation who gather the requested information. Legal resource is also required to ensure any exemptions are correctly applied. The costs associated with complying with the Act are substantial and, particularly in a time of substantial cost-cutting across the public sector, should be taken into account in considering any expansion of its scope or reduction in the use of exemptions. The 18-hour rule is a specific concern as noted above.

For a requester to make an application under the legislation costs nothing. Arguably, that is as it should be. However, allowing such unfettered access to public bodies enables requests to be made for what are sometimes frivolous or vexatious reasons rather than to benefit the greater public. While the majority of requests are well intended and helpful to the recipient, our resources are put under particular pressure in dealing with detailed requests where it is questionable the legislation is being used as was originally intended.

Examples of this can include requests from individuals participating in a campaign. Often these are the result of a decision we have made with which the campaigners disagree. In the last 12 months, we have dealt with two extensive campaigns that resulted in over 50 individual requests for information. In these cases, the time and resource cost to us in dealing with each request was substantial. However, we were unable to treat the requests as vexatious as the individuals concerned did not each put in excessive requests themselves, notwithstanding the high overall number of requests.

Question 3: Is the Freedom of Information Act operating in the way it was intended to?

The Act has allowed the general public to source information and acts as an arbiter for transparency and accountability in the public sector. However, it is questionable whether all requests made comply with the original intention of the legislation: to make available information that is genuinely in the public benefit. We refer above to frivolous and vexatious requests. We are concerned these types of request, where the wider public benefit of releasing information is not apparent, are not an effective use of the public monies and licence fees that fund our activities.

The Ministry of Justice’s Memorandum on the Act refers to a “chilling effect” on the recording of information. There is no doubt this is a consequence of the legislation. Public bodies are now much more careful about what is recorded in email or document form. From a public-records perspective, we are concerned future records are being minimised as a result of the impact of the legislation. We have looked at, for example, board minutes of other organisations and note, like ours, they are now less detailed than before the legislation.

We are aware consideration is being given to an enhanced right to data. The Committee should be aware such an enhanced right will not just have an impact on resourcing but also has the potential to inhibit free and frank discussion, which is a vital part of effective policy development. For this reason, we are not convinced the burdens imposed by an enhanced right to data would be proportionate to the Government’s intended aims.

The Memorandum published by the Ministry of Justice also asks about the effectiveness of using publication schemes. The legislation requires all public bodies to prepare and publish a publication scheme setting out what information the organisation will publish on a regular basis. We do not believe such a scheme adds value to the disclosure of information due to the ease with which information can be searched for via search engines and other web technology. From our experience, we are not aware much use is made of our publication scheme. Individuals who seek information on our website tend to use our website search engine to find the material they require.

February 2012