Justice CommitteeWritten evidence from Ganesh Sittampalam

Executive Summary

1. I am an individual requester with significant experience of using the Act.

2. I believe that the Act has been very successful in opening up access to public authorities.

3. In this submission I mainly focus on aspects of the Act that could be improved.

4. Houses of Parliament: it should be made clear that the Act is intended to apply to the Houses of Parliament during the period of a general election.

5. BBC: the BBC’s “derogation” from the Act for journalistic material should be replaced by a properly drafted exemption.

6. Promptness: It should be made clear that the existing requirement in the Act for a prompt response is important and enforceable.

7. Time limits: Time limits should be introduced for public interest tests and for internal reviews.

8. Enforcement: The Commissioner has adequate enforcement powers and should be encouraged to use them more effectively.

9. Costs limit: the current framework for estimating costs is working adequately and tampering with it would bring significant complications.

About the Submitter

10. I have made FOI requests to a range of public authorities to obtain background material on a range of aspects of public policy and public administration that interest me.

11. I have made a number of complaints to the Commissioner and also successfully brought a small number of cases to the Information Tribunal, so I have a good understanding of all stages of the FOI process from the perspective of a requester.

12. I am also a volunteer administrator for the WhatDoTheyKnow.com website and have contributed to a separate joint submission made on behalf of that website. This submission is made in my personal capacity based on my own individual experiences of using the Act.

The Benefits of the Act

13. I believe that the Act has brought about a substantial shift in the relationship between interested citizens and public authorities. It is no longer necessary to rely on the information an authority chooses to put out, or on the press, to gain an understanding of the behaviour of the public sector.

14. The Act provides access to internal guidance that can be very helpful in explaining practical aspects of daily life. In one recent request, I was able to get Transport for London’s definitions of what is meant by “good service” and “minor delays” on the Tube,1 which provides a valuable perspective on problems I see in my daily commute!

15. Access to internal information can often show authorities in a good light, correcting misleading impressions from press stories. For example after an article in the press that Kent Police had confiscated a board game during a raid on a “Climate Camp”, a FOI request established that this had been done because the game was known to contain a balaclava which could be used to conceal identities.2

Problems with the Act

Houses of Parliament during dissolution

16. The House of Commons has a somewhat unique legal position because of its history. During a dissolution for a general election, it technically does not exist at all.

17. The Commons authorities have chosen to use this as a reason to delay answering requests during a period of a dissolution,3 even though the staff who would answer these requests continue to be employed throughout this period.

18. This is despite the fact that in a previous case before the Information Tribunal, the Commons authorities explicitly acknowledged that they did not think this was the intention of Parliament:4

“For example, the House assumes that Parliament did not intend that the public’s right to information from the House is suspended during periods when the House is dissolved even though, as mentioned above, the House of Commons does not exist during such periods.”

19. The period of a general election is one in which the public has a particular interest in the work of the Commons, and it is therefore regrettable that the authorities have chosen to be obstructive in this regard.

20. The position of the House of Lords is even more ambiguous as Lords do not lose their status during a dissolution.

21. I believe a straightforward fix to the Act to remedy this would be to list the Corporate Officer of each House as public authorities.

BBC derogation

22. The BBC has a “derogation” which means they are only subject to the Act “in respect of information held for purposes other than those of journalism, art or literature”—the “special purposes”.

23. It is right that the BBC be exempted from releasing information that is directly part of its journalistic and creative activities. But the law is badly drafted in this area and is being abused by the BBC to obstruct scrutiny of its spending.

24. For example the BBC has tried to use the derogation to refuse me information about the money spent on marketing, press and publicity. Requests made by others about how many staff were sent to the Beijing Olympics have also been refused.

25. These kinds of requests focus much more on the general use of public money rather than the details of the BBC’s creative output, and I believe this should be properly open to scrutiny.

26. The drafting of the derogation has led to two successive House of Lords/Supreme Court appeals in respect of a single request made by the late Steven Sugar, the first to establish the right route of appeal when the Commissioner decides that requested information is not subject to the Act, and the second to clarify how information held both for the special purposes and for other purposes should be treated.

27. The current situation, pending the final Supreme Court ruling, is that if information is held to any extent for the special purposes, then it is not covered.

28. I suggest that the derogation be replaced by a normal exemption and the ambiguity resolved to make it clear that information is only exempt if held just for the special purposes. Failing that the test the Commissioner originally formulated of a “dominant purpose” should be restored.

Promptness

29. Section 10 of the Act states that authorities must respond to requests “promptly and in any event not later than the twentieth working day following the date of receipt.”

30. During Parliamentary debates before the Act was passed, it was explicit that this was intended to be an enforceable right:5

“the Commissioner may serve a decision notice or an enforcement notice on an authority which failed to deal with a request for information promptly, even though it dealt with it within 40 days”;

[the 40 days was subsequently reduced to 20].

31. It has unfortunately proved almost impossible to rely on this part of the Act.

32. In one request to the Department of Culture, Media and Sport when I complained about promptness, they responded that:6

“Under the Freedom of Information Act we are required to respond within 20 working days, which you accept we did. Previous cases which have been to the Information Commissioner with a similar argument to the one you outline have been rejected as it is understood that we do have 20 working days to respond.”

33. This attitude does indeed extend to the Commissioner. In response to a complaint about the Cabinet Office’s promptness, the ICO’s case officer claimed:

“The Act provides an explicit timetable in which public authorities must respond to a request. I understand your frustration in not receiving an earlier response without delay, however, the response was provided in accordance with the timetable provided by the Act.”

34. I believe that this is a clear example where the Act is not operating as intended. Failure to enforce this requirement means that many authorities routinely wait the full 20 working days to respond even to trivial requests.

35. This is particularly damaging in cases where the authority’s response is to simply refer the requester to another authority, as was the case with my request to the Cabinet Office. In this instance they referred me to the Treasury who also did not hold the information and after yet more days waiting, sent me on to HMRC who actually did hold it.

36. The failure to be prompt actually has a knock-on effect on authorities as well as requesters: because responses will probably be slow, there is an incentive to frame broader requests than strictly necessary rather than making a small initial request and following up as necessary.

37. Similarly if multiple public bodies might hold information, it currently seems better to ask all of them for it in the first instance, rather than to try the most likely first.

38. As the requirement for promptness is already enshrined in the Act, and the main problem is that it is not being taken seriously by either authorities or the Commissioner, I believe the situation could be improved by a clear statement from legislators that they believe that the requirement for promptness is important and should be enforced.

Time limits

39. The lack of time limits in the Act for public interest tests and for internal reviews is a frequent point of friction with authorities.

40. There is little or no evidence that authorities genuinely need this flexibility.

41. The position in Scotland, with no extension for the public interest test and a 40 working day limit for internal reviews, provides an alternative model for the UK to follow.

Poorly organised authorities

42. Some authorities seem to consistently have difficulty meeting their obligations under the Act. In my personal experience these include the Cabinet Office and the Home Office.

43. “Meta-requests”—requests for information about how a previous FOI request was handled—suggest that for the most part long-delayed requests receive little attention for weeks at a time.7 , 8

44. Often these authorities seem to spend substantially more time on looking for reasons to refuse or delay a request than on actually providing an answer.

45. For example, in ruling against an attempt by the Home Office to declare a request from me vexatious, the Commissioner observed:9

“While the Home Office has made considerable representations about the additional work it has undertaken following the complainant’s requests, most of this work was incurred as a result of the way the Home Office handled the requests.”

46. Difficulties answering requests sometimes also appear to originate from extraordinarily poor records management. The Home Office is apparently unable to provide copies of 16 contracts they signed with the ACPO in 2009/10 within the costs limit:10

“Locating and collating this information would involve retrieving documentation from various other units in the Home Office Crime and Policing Group (CPG), due to the fact that the total funding amount is not centrally held. CPG consists of over 23 units amounting to over 100 individuals. This work would mean collating information through searching different information sources (namely 23 shared electronic drives, personal drives and separate paper records) held by each unit.”

47. Given that these are legal documents and also that the Government stated in 2010 that all contracts with values of more than £25,000 should be routinely published, I find it very hard to understand why these are not kept in a central location.

The Information Commissioner

48. Substantial delays in investigating complaints by the Information Commissioner have been well-documented in the past.

49. These delays have now been reduced but are still significant: it still typically takes 6–12 months to get a decision about any substantive complaint.

50. This again contrasts with the position in Scotland where the legislation sets a target of 4 months for the Scottish Commissioner.11

51. One consequence is that any authority that wants to delay the release of time-sensitive information can easily do so.

52. The Commissioner already has substantial powers to take action against persistently poorly performing authorities.

53. His current approach only focuses on the absolute worst performers and is rather protracted; authorities which are already demonstrably failing are first monitored for many more months, then if still failing are persuaded to sign undertakings and monitored for a further substantial period. No new authorities have been placed under monitoring since April 2011.

54. I believe the Commissioner should use his powers much more aggressively, and issue enforcement notices whenever a pattern of poor performance emerges.

The costs limit

55. The MoJ’s memorandum highlights that a number of public authorities would like to see changes to the operation of the costs limit, in particular to include “redaction, consultation and reading time”.

56. Currently, the measure of time for the costs limit is fairly objective in that it only comprises the time required for well-defined and limited activities—locating, retrieving and extracting information. Even so there are often disputes before the Commissioner about the reasonableness of such estimates.

57. Adding more activities—particularly consultation and reading—would introduce a much more subjective element which would likely lead to a significant increase in such disputes.

58. Including redaction time would create an incentive for authorities to maintain information in forms where releasable information is intermingled with exempt information.

59. Measuring the required redaction time is also problematic because it presupposes that an exemption really does apply—but that may be a matter of dispute.

60. In the current regime, the first step in handling a request is to test the costs limit, and only if the information can be extracted, to consider other more substantive exemptions.

61. This simple two stage process would be enormously complicated if the application of substantive exemptions had to be considered in tandem with the application of the costs limit.

62. For example, I have obtained the release of the BBC’s contract with Capita to operate TV licensing.12 This contract runs to several hundred pages and the BBC initially sought to withhold significant parts of it, with many small redactions. Eventually the Information Commissioner ordered release of the whole document without any redactions at all.

63. I believe that changes to the calculation of the cost limit would make obtaining documents of this nature harder or impossible. Particularly given the current trends towards outsourcing, access to such contracts is in my view vital to understanding how public services are run.

February 2012

1 http://www.whatdotheyknow.com/request/84798/response/248309/attach/3/Declaring%20Service%20Status%20Criteria%20v1%206%2011%2011%2011.pdf

2 http://www.whatdotheyknow.com/request/confiscation_of_property

3 http://www.whatdotheyknow.com/request/new_members_guidebook#incoming-86639

4 Appeals EA/2006/0074/0075/0076: http://www.informationtribunal.gov.uk/DBFiles/Decision/i84/HoC2.pdf, para 38

5 http://www.publications.parliament.uk/pa/cm199899/cmselect/cmpubadm/570/57015.htm

6 http://www.whatdotheyknow.com/request/public_cost_of_royal_family_and#incoming-69707

7 http://www.whatdotheyknow.com/request/32334/response/90755/attach/3/FOI%2014618%2010%2006%2010.pdf

8 http://www.whatdotheyknow.com/request/48265/response/207601/attach/3/20110822%20Sittampalam%20Digest%20Release.docx

9 http://www.ico.gov.uk/~/media/documents/decisionnotices/2011/fs_50380320.ashx, paragraph 25

10 http://www.whatdotheyknow.com/request/53125/response/228394/attach/3/16988%20Sittampalam%20response.pdf, paragraph 18

11 http://www.legislation.gov.uk/asp/2002/13/section/49

12 http://www.whatdotheyknow.com/request/tv_licensing_contracts_with_capi#incoming-171072

Prepared 25th July 2012