Justice CommitteeWritten evidence from Chaminda Jayanetti

Executive Summary

1. I am a regular user of the Freedom of Information Act, presently to monitor the impact of public funding cuts. I would probably be considered a “serial requester” to local councils and NHS trusts, but I only send requests where I believe the information is in the public interest. I do not send frivolous requests and have little patience for those who do.

2. I want to see the Freedom of Information Act work in a manner that meets its core objectives without over-burdening public bodies; at the same time, any measures to mitigate its impact on public bodies should not restrict its application. The Act is an all-too-rare example of legislation that broadly serves its purpose.

3. My recommendations are based on the following underlying principles:

any tightening of the exemptions should only affect the most egregious misuses of the Act;

some measures can be taken to reduce the administrative burden on public bodies without tightening exemptions; and

work must be done to prepare the Act for extension to private providers of public services.

4. Here are my specific recommendations:

a separate, second cost/time limit should be introduced—a limit on the cost/time required to read material for the purpose of redacting and to physically apply redactions (paragraph 10);

public bodies should be given the power to immediately reject—without any further consideration—any request for an internal review that does not provide any rationale or argument against the original decision (paragraph 16);

public bodies should focus on integrating their published data—on spending above a certain level, or executive pay and expenses, for example—with their Freedom of Information web pages (paragraph 18);

the role of Freedom of Information officers should be reconsidered (paragraph 19);

public bodies should be required by the Information Commissioner’s official guidance to direct the requester to the precise location of the information (at least, if it is online) if the ordinary person could not reasonably be expected to locate it themselves (paragraph 23);

in terms of prejudice to commercial interests there should be a clearly stated presumption in favour of disclosure where the requested information concerns the expenditure of public money (paragraph 25); and

the Act should be extended to cover the delivery of services provided by the private or third sector where these are funded by government (paragraph 27).

Administrative Burden

5. Funding cuts are having a severe impact on “back office” functions such as information governance. It is also likely that these cuts are the focus of increasing numbers of requests as citizens and journalists try and establish their impact.

6. The fact that more people are using the Act is not a weakness; it shows the strength of the Act and its success as a means of opening up government. Nor is the increasing complexity of requests necessarily a bad thing—many of my requests are complex so as to ensure the accuracy and context of the information.

7. To give an example—last year I asked local councils for details of funding cuts to charities. A simple request would ask what charities had had their funding reduced and by how much. However, that might include charities that had voluntarily withdrawn from funding arrangements; charities whose funding contracts had been re-tendered to other charities; and charities that had received a one-off capital grant. None of these could really be considered a “funding cut”. So I extended my request to take account of these factors. That made it a far more complex request, but meant that the information that came back did not misrepresent the position of local councils. It was telling that when the data was published, despite its high profile, practically nobody challenged its accuracy.

8. Public bodies’ concerns regarding the administrative costs of the Act seem to revolve around the section 12 cost limit, vexatious requests, appeals, and volume of requests. I shall address each of these in turn.

Section 12

9. Any move to bring the time required to consider exemptions and apply redactions into the existing section 12 cost/time limit would be catastrophic and open to serious abuse. Given that judging an exemption is essentially a mental process, there is no way of ensuring that public bodies are not deliberately inflating the time taken to do so in order to trigger the cost limit. In addition, a request to a local council may require sign-off from three members of staff due to internal procedures. If each member of staff spends three hours judging exemptions, that is collectively nine hours. This is half the current time limit. A request for information that takes 10 hours to retrieve—well below the existing time limit—would be rendered unenforceable.

10. The MoJ memorandum outlines egregious cases where PhD students request large volumes of research that are easy to retrieve but exceptionally time-consuming to redact. This kind of request is not within the core aims of the Act. Therefore, in order to protect public bodies from these most egregious cases, a separate, second cost/time limit should be introduced—a limit on the cost/time required to read material for the purpose of redacting and to physically apply redactions. If a public body can demonstrate that reading and physically redacting requested information would exceed, say, 15 hours, the request can be refused.

11. This cost limit would be entirely separate to the existing, retrieval cost limit. It is crucial that it must not be applied to the time required to consider the application of exemptions, nor to the time required to set out the principles of what should be redacted—merely the time required to actually read the material and physically redact the information. As a protection against abuse by public bodies, the time required for only one person to read the material could count towards the second cost/time limit—a public body could not require three different members of staff to read the material so as to trigger the time limit.

12. In addition, the application should be subject to appeal where there is an exceptional public interest in disclosure. This would protect the most important disclosures, such as MPs’ expenses, which incurred lengthy redactions but clearly met an exceptional public interest. I will discuss the administrative burden of appeals later.

13. Some public bodies would like to alter the rules around aggregation, so that all requests from the same source could be aggregated for section 12 purposes, rather than merely those on the same subject. This would not work. First, anyone could create a false email account and identity from which to send additional requests. Second, newspapers and businesses would simply get a variety of employees to submit different requests, each time using personal email accounts to hide their shared workplace.

14. Nor would introducing more charging solve the issue. National newspapers, think tanks and businesses would all stomach the costs. Freelance journalists and local newspapers would be hit. Private individuals would be discouraged altogether—the government’s much vaunted “armchair auditors” would go to seed. As I stated earlier, any reform should be based on weeding out the most egregious examples, not wrecking the core of what has been a successfully implemented piece of legislation.

Vexatious requests

15. Having never had a request refused as vexatious, my only concern here is that the provision is not extended beyond an egregious fringe of requests. It would appear from the Ministry of Justice memorandum that public bodies are wary of refusing vexatious requests because of the cost of appeals. Thus it may be more effective to address the question of appeals rather than widening the definition of “vexatious”. It is fundamental that public bodies cannot refuse requests solely because they do not understand the purpose of it, unless the information requested is genuinely trivial—the Act would be corrupted if it allowed public bodies to act as sole arbiters of what information is important and what isn’t.

Appeals

16. Public bodies should be given the power to immediately reject—without any further consideration—any request for an internal review that does not provide any rationale or argument against the original decision. Such a power would have to be worded carefully, but essentially it would mean that an applicant could not just fire off a request for internal review on a whim—they would have to provide some kind of argument, however weak or thin, as to why the original decision was wrong. At present—if I understand correctly—an appeal lodged without any such argument would have little chance of success, but would still have to be fully considered by the public body. With the new power, they could reject such “hit and hope” appeals on the spot. However, if an argument is advanced it must be given full consideration via the internal review process, regardless of how poor an argument it may seem.

Volume of requests

17. As I stated at the outset, the increasing usage of the Act is evidence of its success. However, clearly public bodies are concerned about the rising number of requests. The reality is that Publication Schemes are generally ignored. They are hard to navigate, often refer to information that has to be requested in order to access anyway, and contain large amounts of information—around governance, for example—that few people would be interested in.

18. Public bodies should instead focus on integrating their published data—on spending above a certain level, or executive pay and expenses, for example—with their Freedom of Information web pages. If someone searching for the public body’s FOI contact details was first confronted with links and explanations of readily-published data around spending, tenders, pay and expenses, this may provide them with the information before a request is submitted.

19. In addition, the role of Freedom of Information officers should be reconsidered. Currently, FOI officers are gatekeepers who forward requests on to relevant departments. Generally, they don’t have much personal knowledge of what information is stored and how. I would suggest that public bodies would benefit if the role of FOI officers was reconfigured so that they became more knowledgeable about the way key information—around staffing, expenditure, and other common subjects of FOI requests—is categorised and stored, so they could then give quick steers to prospective requesters prior to requests being sent.

20. To clarify, I’m not suggesting with this latter recommendation that FOI officers should just dole out FOI responses on demand over the phone. Instead, I am suggesting that if a public body’s Freedom of Information web page had a phone contact for the FOI officers (many do not), and a suggestion that people call this number if they want advice on how the public body holds certain information, then the FOI officer could quickly guide the requester on how this information is categorised and stored, so as to enable the request to then be phrased in a way that makes it easier for the information to be located.

21. Together, these measures could both reduce the volume of requests, and improve the phrasing and structuring of requests for the benefit of both requesters and public bodies alike.

Widening the Act

22. Having addressed some of the concerns of public bodies, I now want to discuss areas where the Act could be improved from the perspective of a requester such as myself.

Section 21—information already reasonably accessible

23. This section needs to be defined more clearly. I would suggest that public bodies should be required by the Information Commissioner’s official guidance to direct the requester to the precise location of the information (at least, if it is online) if the ordinary person could not reasonably be expected to locate it themselves—for to fail to do so would render the information not reasonably accessible.

24. I shall explain with the example of NHS Trusts. Here is a link to a randomly selected NHS Trust’s Board papers for one Board meeting:

http://www.medwaypct.nhs.uk/explore-nhs-medway/about/board-meetings/kent-and-medway-pct-cluster-board/wednesday-30-november-2011/

There is a long list of different papers—collectively running to hundreds if not thousands of pages—often full of technical or management language. It is clearly absurd to consider information buried deep within one of these papers at one of these meetings to be reasonably accessible to anyone without an inside knowledge of the NHS Trust Board in question. Yet at present, NHS Trusts can and often do apply section 21 to any information that might be within one of these Board papers, and merely direct the requester to the Trust Board homepage; in this case, here—http://www.medwaypct.nhs.uk/explore-nhs-medway/about/board-meetings/. Unless the requester is able to spend a week going through every Board paper for every Board meeting, s/he must simply give up. It would make far more sense for the Trust, in its response to the request, to apply section 21 and direct the requester to the specific Board paper, or indeed the specific page. There is no need to change the law here—merely for the Information Commissioner’s guidance to state this so it can be applied by requesters and public bodies.

Section 43—prejudice to commercial interests

25. In terms of prejudice to commercial interests there should be a clearly stated presumption in favour of disclosure where the requested information concerns the expenditure of public money. In essence, it should not be possible for public bodies to hide how much they have spent (or ceased to spend) on a service or a contract by using section 43, other than in exceptional circumstances. This could be achieved through clear direction within the Information Commissioner’s guidance on this section.

Private contractors

26. In recent years, there has been increasing recognition that sections 41 (in particular) and 43 cannot be used to hide details of private sector contracts tendered by public bodies. However, the current trend towards transferring public service delivery to the independent and third sector—be it through asset transfer, “Big Society” funds, or outright tendering—opens up new and pertinent questions about the application of the Act.

27. The Select Committee should, I believe, take the opportunity to unequivocally state that the Act should be extended to cover the delivery of services provided by the private or third sector where these are funded by government. This does not include contracts to supply goods. The details of how this would work should be examined in more detail, but as an underlying principle this is unarguable. First, delivery of frontline local government and NHS services are of sufficient importance to warrant the application of the Act so that they can be scrutinised. Second, in the open marketplace that is being considered for swathes of the public sector, to include public sector entities (eg NHS Acute Trusts) within the scope of the Act while excluding private sector contractors (eg private health providers that win NHS contracts from clinical commissioning groups under the putative Health and Social Care Bill) would place the public sector entities at a disadvantage to their private sector rivals. Since creating a level footing by excluding the public sector from the Act would simply remove public services from the transparency of the Act, the only solution is to extend the Act to private sector providers.

28. Full discussion and consideration would have to be given to how this would work in practice. It would presumably not be the aim to bring entire private companies within the scope of the Act when only small subsets of those companies are actually providing services under public sector contracts. Instead, the public sector tendering body could be required to include a Publication Scheme clause as part of the tender, setting out a Publication Scheme that the winning bidder—be it private, public or third sector—would have to abide by in delivering the tendered service. The Publication Scheme would be different to current schemes (which, as I said earlier, are largely ignored)—it would have to state clearly that information relating to the service in question would have to be made public under the Freedom of Information Act, unless covered by an existing exemption. The public sector tendering body would have to give prior approval to the application of any exemption by the private/voluntary provider, to avoid private companies deliberately discouraging requests by refusing as many as possible and hoping few applicants will appeal to the Information Commission—after all, freedom of information is not at present part of the private sector culture.

Conclusion

29. The Select Committee should see the rising usage of the Freedom of Information Act as a good thing, not a problem to be tackled or a worrying trend to be curtailed. Public bodies covered by the Act are inevitably inclined to see things from their own perspective, rather than considering the broader benefits that transparency brings. However, there are legitimate concerns around a small number of egregious cases that impose a heavy burden, and I hope that the Committee will consider the pragmatic steps I have suggested that could tackle these without obstructing the majority of users of the Act.

February 2012

Prepared 25th July 2012