Justice CommitteeWritten evidence from Helen Cross

Summary

1. My evidence addresses the questions of whether the Freedom of Information act (the Act) is working as intended and what are the strengths and the strengths and weaknesses of the act. This is based on my own experience of making FOI requests.

2. Generally, the Freedom of Information Act is working as intended, but there are still a few areas of weakness and problems with compliance amongst smaller authorities.

3. The lack of a fixed time limit for conducting an internal review or a public interest test when applying an exemption leads to unnecessary delays for the requester.

4. There should be less focus on publication schemes, and more on disclosure logs to ensure released data is available to all.

5. The time limit for taking action under section 77 of the act is too short.

Is the Freedom of Information Act operating in the way that it was intended to?

6. In my experience, the Freedom of information act is operating as intended. Most public authorities are now well practised in answering Freedom of Information requests, so the level of compliance with the requirements of the act is generally quite high.

7. Unfortunately, there are still some authorities who have failed to comply with their responsibilities under the Act, including by doing the following:

Demanding that FOI requesters a pay a fixed fee for access to information. eg Sussex Coast College who tried to charge a flat £75 fee to requesters.1

Refusing to respond to valid requests submitted via email. eg South Ribble Borough Council, who tried to force requesters to use their web form instead.2

Taking unreasonable steps to establish the identity of requesters eg the Department for Communities and Local Government who asked one requester to present their passport to the British embassy in Baku.3 This is an issue that particularly effects people with less common names.

Refusing to answer requests from companies made in the legal name of the company.

Demanding a postal address be provided for requests made electronically eg Bury Parish Council.4

8. These problems occur most frequently amongst smaller authorities who may not have a full time Freedom of Information officer or who have not had to answer requests before.

9. Whilst I recognise that some councils are concerned about the cost of responding to FOI requests at a time of budgetary constraint, I believe that section 12 of the Act is working as intended and the current limits strike the right balance between limiting the cost burden on a public authority in responding to a request with the information rights of the requesters.

10. There is however, a problem with authorities who do not respond “promptly” to requests, but who consistently providing a response on the 20th working day regardless of the nature or the complexity of the request. The Information Commissioner’s Office has a policy whereby it does not issue formal decision notices in these cases. I believe that this is unfortunate, as the 20 working day limit is meant to be the maximum time allowable by law, not the standard response time.

What are the strengths and weaknesses of the Freedom of Information Act?

11. One of the main strengths of the Freedom of Information act is that it makes it simple for all sections of society to access public sector information that is relevant to them. This is largely due to the fact that requesters are not charged for making requests and there is no prescribed form of words that requesters have to use in order to get a response. I would strongly urge the committee to resist any calls to introduce charges for making requests as the information rights of the public should not depend on personal wealth. I would ask the committee to examine evidence from Ireland where the introduction of a charge for information requests lead to a steep drop in the number of requests that were made.

12. A further strength of the Act is that it is “applicant blind” so that all requests for information are supposed to be treated in the same manner regardless of who has made the request. Sadly this principle is not always adhered to by some public authorities who regularly route requests from journalists via their press office, who pre-approve any responses. This can lead to responses to requests from members of the press being delayed. The Metropolitan Police revealed late in 2011 that it treats requests from “high profile” requesters differently to those received from other members of the public, with those responses requiring sign off from higher ranking members of the force. This is a trend which I find quite worrying and one which I feel goes against the spirit of the act.

13. The main weakness of the Freedom of information act as currently drafted, is the lack of a limit on the amount of time that a public authority can take to conduct a public interest test when decided whether certain exemptions should apply. This can lead to frustrating delays, with requesters sometimes left waiting for months before being provided with a response from the authority.

14. A good example of this is a request made to the Metropolitan Police on 22 August 2011 asking for information on their monitoring of Social Networking.5 The Metropolitan Police wrote repeatedly to the requester explaining that they were unable to respond to the request as they were considering public interest factors, and they did not issue a refusal notice until 15 November 2011, which was almost three months after the initial request was made.

15. As that request was refused on cost grounds, the requester refined their request on 16 November 2011 in an attempt to see if the request could be answered within the current cost limit. The Metropolitan Police again repeatedly delayed their responding to this request on the grounds that they were considering the public interest in disclosing the information. The Metropolitan Police finally issued a second refusal notice on 2 February 2011, over five months since the original request was submitted.

16. Such long delays are in keeping with the spirit of the Freedom of Information Act and I have observed that they can be very frustrating to requesters when they occur. I would like to see the Freedom of information act amended to introduce a limit to the amount of time that an authority can take to consider whether releasing information is in the public interest. I think this would help to reinforce the message that Information is meant to be provided promptly to the public when requested and would reduce the level of frustration felt by requesters who can see a request for information drag on for months.

17. I would also like to see a statutory time limit introduced for the amount of time that an authority can take at the internal review stage of a request. The Information Commissioner has already issued guidance that an internal review should be concluded within 40 working days of a request having been made, but without the full force of statute behind it, in practice the review stage can take much longer.

18. A further weakness of the Act is that Public Authorities are not required to maintain a disclosure log, which means that information is not automatically made publicly available one it has been released under the act. This can lead to repeat requests being made to public authorities, placing an unnecessary administrative burden on them.

19. The Act instead requires authorities to maintain an adequate publication scheme. I have found these to be of little use when making FOI requests as they are often out of date or incomplete. I have also been unable to access a copy of the register of interests of my local councillors because the fact it is listed in the authorities publication scheme means I am unable to specifically request a copy and the council were insistent that the document should only be available for inspection. Here the existence of the publication scheme actually made it harder for me to access the information that I required.

20. The final weakness that I would like to highlight is the short time frame for taking action, under Section 77 of the Act, against those who have deliberately acted to conceal or destroy information that otherwise would have been released. As the time limit for launching proceedings under s77 begins when the original offence took place, I believe that there is little prospect of a successful prosecution being brought. Although the ICO have significantly reduced the average time taken to handle complaints in recent years, it still can still take them several months to hear a case and. owing to delays at the internal review stage, several months for a complaint to reach the commissioner in the first place. I would ask to Committee to consider whether an amendment is necessary to give the ICO greater time to act in the event of a breach.

February 2012

1 http://www.whatdotheyknow.com/request/ore_valley#incoming-183785

2 http://www.whatdotheyknow.com/request/tickets_for_2012_olympics_347#incoming-181672

3 http://www.whatdotheyknow.com/request/barrier_busting_website_follow_o#incoming-203514

4 http://www.whatdotheyknow.com/request/composition_and_costs_of_running_43#incoming-245550

5 http://www.whatdotheyknow.com/request/social_media_monitoring_policies

Prepared 25th July 2012