Justice CommitteeWritten evidence from the University of Sheffield

I am a senior lecturer in the Journalism Studies Department at the University of Sheffield.

Since the Freedom of Information Act came into force, I have taught journalism students to use it. Our Department was the first to require students make requests as part of their degree assessment. As a consequence, I have supervised the making of more than 300 FOI requests, which includes helping students to choose the subject of the requests, and to draft them. I have seen the responses and information gained from public authorities, and read students’ analyses of their experiences in making the requests—for example, notes of contact with the relevant authorities before and after the requests were made. I would add that the students make FOI requests for reasons other than to gain experience of using the Act. Information gained has been used in their coursework in other modules, and in a few instances has led to news stories being published in the media. Also, students need to have experience of using the Act to help them gain employment in the media, because employers value this. The experience students gain of using the Act is also of value to public authorities, in that students—many of whom become journalists—learn to word and frame requests in ways which save authorities time in the response process.

Before joining the department, I was a journalist for 18 years, and for most of that time was a crime or investigations reporter in the regional press, and spent a year as the Observer’s Northern Reporter. I have also used the Act myself on occasion, as an academic.

Since 2009 I have been co-author of McNae’s Essential Law for Journalists. Among UK journalists this is the best known legal and ethical handbook, and is kept in many newsrooms. It was first published in 1954. The 21st edition is being published in 2012. It is also a leading textbook for university journalism departments. Mike Dodd, legal editor of the Press Association national news organisation, is co-author. It contains a chapter on the FOI Act.

Since June 2006 I have been chair of the media law examination board of the National Council for the Training of Journalists, having served on the board since 2002. For most of this time I have been the NCTJ’s chief examiner in media law.

The points I want to make are:

(1)The major weakness of the Act is that there is no effective sanction against a public authority which frequently fails to respond to requests in the 20-day period. In my experience, the worst offenders in this respect are central government ministries. For example, I have made several requests to the Ministry of Justice to which there was no response at all.

(2)The fact that there is no statutory time limit for application of the public interest test is also a weakness.

(3)The obligation in section 16 of the Act to provide advice and assistance is not always met. It has been made clear by the Information Tribunal—for example, in Christopher Lamb v Information Commissioner, EA/2006/0046—and by the Information Commissioner that the duty includes giving advice and assistance to a person considering making a request—for example, to help them frame and word it. On occasions my students when seeking such help have been told by the relevant personnel of a public authority that it has no obligation to provide assistance until a request is received. On occasions the message given is to the effect of “Send it in and we will take a look at it”. On such occasions the student may send in a draft request only for this to be treated as a formal request, with no advice or assistance offered. The student may then have to wait for much of the 20-day period to elapse to get a response. The student may get no information because the request breaches the cost limit for the provision of free information, or because there is, it turns out, no such information held. This wastes the student’s time (and probably in some instances also the authority’s time) in that the student could, had advice and assistance been given, amended the request in draft form, or realised it should be directed elsewhere. There is currently no effective sanction against failure to provide section 16 advice and assistance.

(4)There seems among some public authorities to be a lobby that requesters’ rights under the Act should be diluted. The argument may be that too many requests are being made, and that public resources are being wasted. The counter-argument is that transparency and public accountability are likely to save more money than is “wasted” in the FOI regime. The UK’s FOI legislation is already weaker, as regards requesters’ rights, than law in other democracies.

(5)The decline in the size of the UK’s journalism workforce, because of the recession causing redundancies, but also structural change in how consumers want or access news, means it is even more important now that the UK has an effective FOI Act., because it is probably the case that regional and local news, provided by newspapers, has declined in scope and depth because there are fewer journalists employed. The Act, for all its faults, is a method of gaining information not normally published. To weaken the rights of requesters would risk decreasing the information available to the public.

(6)It is logical, bearing in mind inflation since 2005, that the cost limits which govern the provision of free information should be raised.

(7)There needs to be more research on what requesters’ experience in their use of the Act.

February 2012

Prepared 25th July 2012