Justice CommitteeWritten evidence from Equanomics UK

Introduction and Overview

1. This submission is made in response to the Justice Select Committee’s request for evidence for its post-legislative scrutiny of the Freedom of Information Act 2000 (FOIA).

2. This submission, from Equanomics UK,1 is supported by leading organisations involved in the promotion of race equality—the Afiya Trust, Black Training Enterprise Group (BTEG), , Coalition Of Racial Justice (UK), Friends, Families and Travellers, Just West Yorkshire, MENTER, Operation Black Vote (OBV), the Race Equality Foundation, Race on the Agenda (ROTA), the Runnymede Trust and Voice4Change England. Equanomics-UK and our colleagues are members of a BME VCS Coalition.2

3. Evidence-based policy making is crucial; therefore in our main submission we have:

(a)summarised key ways in which our organisations and members have been involved with the FOIA and briefly reflected on key recommendations from the Stephen Lawrence Inquiry which have informed our evidence;

(b)commented on the conclusions set out on pages 62 and 63 at paragraphs 219—224 of the Memorandum to the Justice Select Committee; and3

(c)concluded our submission with summary comments on the three overarching planks of this review—the effectiveness of the FOIA, its strengths and weaknesses and whether the Act is operating as intended.

Executive Summary

4. As race equality focused Voluntary and Community Sector (VCS) organisations, we share the Government’s belief that accountability and transparency are at the heart of effective government. We also draw on, and recognise the continuing importance of, our collective experiences of racial discrimination, racial inequalities and the recommendations of the Stephen Lawrence Inquiry on the importance of freedom of information legislation, openness, trust, accountability and access to information.

5. As organisations, we have considered, advised on and used a range of tools to ensure that public accountability and transparency are a reality rather than simply rhetoric. We view the FOIA as an essential, although not perfect, tool for those interested in shining a light on public bodies and holding them to account. We would therefore be concerned about the introduction of any steps that might further restrict or limit the ability of individuals or organisations to use the FOIA’s provisions.

6. We believe that introducing new fees or extending the ability of public bodies to issue fees would: (a) reduce the opportunity for individuals and VCS organisations to use the provisions of the FOIA to secure information; (b) have a chilling effect on the ability of individuals and organisations to use FOIA; and (c) undermine public accountability. If a balance must be struck, the balance should favour promoting public accountability, confidence and trust by facilitating access to information.

7. We welcome the Government’s proposals in relation to making information routinely available and providing information in formats that are reusable.4

8. We welcome proposals, by FOIWiki, for improving the FOIA and would hope that the Committee will give due consideration to these detailed recommendations (see
http://foiwiki.com/foiwiki/index.php/Changes_we_would_like_made_to_FOI_law).

The Government’s commitment to greater transparency and openness throughout the public sector, our collective experience of FOIA and the importance of the recommendations of the Stephen Lawrence Inquiry

9. We support the assertion by the Prime Minister5 that “Greater transparency across Government is at the heart of our shared commitment to enable the public to hold politicians and public bodies to account.” We also welcome the assertion in the Memorandum that: “the Government is committed to greater transparency and openness throughout the public sector” and that “Freedom of information remains a vital element of the transparency agenda and has been instrumental in the release of a great deal of information which might otherwise have remained closed (paragraph 219).”

10. As BME VCS organisations, committed to the promotion of equality, we have considered, advised on and used a range of opportunities available to ensure that accountability and transparency in public affairs and we consider the FOIA to be a key tool.

11. In addition to using the FOIA to make direct requests to public bodies including government departments, local authorities and universities, other FOIA related activities include:

(a)reviewing and drawing on the recommendations of the Stephen Lawrence Inquiry in relation to trust, information and freedom of information;

(b)providing advice and information on how to use the FOIA in conjunction with other legislation including the Equality Act 2010 and the public sector equality duties (eg Equanomics-UK, ROTA, Voice4Change England); and

(c)providing training to staff and/or other organisations on how to use the provisions of the FOIA to promote race equality (eg the Afiya Trust, ROTA,6 Voice4Change England).7

12. The recent high profile court case of two of the murderers of Stephen Lawrence has caused many to reflect back on the analysis and recommendations of the Stephen Lawrence Inquiry. We believe that the Inquiry’s recommendations on “openness, accountability and the restoration of confidence” are no less relevant now than they were in 1999.

13. The Stephen Lawrence Inquiry highlighted the need to “increase trust and confidence in policing amongst minority ethnic communities” and specifically recommended that “a freedom of information act should apply to all areas of policing, both operational and administrative, subject only to the ‘substantial harm’ test for withholding disclosure”.8

14. Although the Inquiry’s recommendations were made in relation to policing, we believe that openness, accountability and maintaining and/or restoring confidence of BME communities in public bodies is important across the board; improving access to information and the operation of the FOIA can make key contributions to promoting trust and accountability.

15. We would ask the Committee to explore whether any amendments should be made to the existing FOIA exemptions to better address the recommendations made by Sir William Macpherson in 1999.9

The increasing use of FOIA by campaigners, individuals and organisations, particularly voluntary and community organisations

16. Our experience is that whilst some VCS organisations are making increasing use of the FOIA many others have a limited understanding of the FOIA and how to make FOIA requests. Our training and associated work, suggest that in the future increasing numbers of VCS organisations can be expected to make growing use of the FOIA request process.

17. We would argue that the increasing costs for public bodies associated with complying with FOIA, referred to in paragraphs 220 and 221 of the Memorandum’s conclusions: a) are in part a natural consequence of greater use by individuals and organisations of the FOIA; and b) may in part reflect a failure by some public bodies to properly consider how best to really embrace a commitment to openness, public accountability and transparency and adapt their systems to address this commitment.

18. The Memorandum reflects on a MoJ study (para. 216) and suggests that the study found that in some limited cases “some people were recording less information and that internal communications had become less detailed and informative than before FOIA”. The report also comments that “there is an important balance to be struck in enhancing transparency while protecting the necessary space in which policy options need to be discussed and decisions taken. The difficulty in appropriately striking that balance remains a concern and is worthy of consideration (para. 218)” Since there are clear FOIA public interest exemptions and a wide range of other FOIA exemptions,10 there is no reason why the FOIA provisions should limit the information that should be minuted. Perhaps the flaw in the Memorandum’s analysis, is the failure to recognise that some public bodies may be concerned that FOIA requests may uncover flaws/failures in decision-making. The suggestion that some public bodies may simply fail to record information/decision-making in any detail because of the FOIA is therefore lamentable. We believe that inadequate recording of decisions is inconsistent with proper decision-making, the public interest and promoting public accountability and trust. We would ask the Committee to consider this issue, as well as the examples of good or best practice highlighted in Memorandum.

19. We have concerns about the range of public bodies covered by the FOIA and the impact of the Health and Social Care (H&SC) Bill and other legislative reforms that may result in services being “contracted out” for want of a better term. We welcome the provisions in the Protection of Freedoms Bill, in relation to providing a wider definition of publicly owned companies, however, we hope that the Committee will consider:

(a)does this definition of publicly owned companies go far enough?

(b)amendments to ensure that where services, activities or functions are contracted out under the H&SC Bill or other similar legislation, that public bodies responsible for monitoring such contracts and contractors:

(i)should secure a suitable range of information on the performance of those bodies in relation to the public contract where the contractor is not directly subject to the Freedom of Information Act 2000; and11

(ii)should ensure that contractors maintain relevant information;

(c)amendments to ensure that where services, activities or functions are contracted out under the H&SC Bill or other similar legislation, that the ICO and the relevant Tribunal:

(i)can consider complaints about a public body not holding or requiring a relevant contractor or organisation to hold relevant information about the performance of the contract, service or activity where the public body would have been expected to hold such information and holding and/or disclosing such information would be in the public interest; and

(ii)can require a public body to start to secure such information as is in the public interest.

Key issues time-limits and public interest tests and internal reviews12

20. The current time limit for responding to requests for information is 20 working days; we support the proposal that the time limit for internal reviews should also be set at 20 working days. We also support the proposal that the time limit for dealing with FOIA requests including a public interest test13 should also be set at 20 days as we believe is already the case under equivalent legislation in Scotland.

Costs associated with the FOIA and striking the right balance between transparency and reducing regulatory burdens

21. We would be profoundly concerned about the introduction of any further fees. A practical example of our concerns is provided by the recent work by the Afiya Trust. In November 2011, the Afiya Trust wrote to all directors Adult Social Care Services in England. The aim was to seek information, using the FOIA, to establish the impact of the cuts over 2010–11 and 2011–12 on BME led organisations, other providers of services to BME communities and BME communities.14

22. To their credit none of the 155 local authorities concerned sought to charge. However if a modest charge had been made by each local authority, of even £100, the cost to Afiya would have been £15, 500, a bill that a small charity simply could not afford.

23. We believe that extending the use of fees or increasing fees is inconsistent with provisions that are designed to promote greater access to information and transparency. If there is a decision to introduce fees, we believe that there should be a general waiver of any fees for charities, individuals and VCS organisations. We also believe that newspapers have often shone a light on public affairs and should not, as a matter of principle, be charged where there is a public interest.

Specific concerns about the FOIA’s operation including the complaints and appeals process and the role of the ICO

24. We have very little direct experience of using the ICO complaints and appeals process. The Runnymede Trust has complained, once, to the ICO about a leading university’s refusal to provide the full data on the number of applications from, and offers to, British Black students. The grounds for refusal, upheld by the ICO, were that the numbers are small that individuals could possibly be identified by disclosing the information. The Trust accepted that the numbers are small and although it disagreed with outcome, it felt that the process was fair and worked efficiently.

Final comments—the effectiveness, strengths and weaknesses of the FOIA and whether it is operating as intended

25. We have drawn on Blackstone’s 4th Guide to the Freedom of Information Act published in 2011. This Guide identifies that the rationale for introducing freedom of information legislation included:

(a)improvement of democratic processes;

(b)avoiding the need for whistleblowing and leaks;

(c)improving the efficiency of government and the effective use of public money; and

(d)commercial use of relevant information.

26. For the BME VCS Coalition, our primary concern is in relation to the first three areas—improving democratic processes, reducing the need for whistleblowing and leaks and improving the efficiency of government and the effective use of public money. We note the analysis provided by the University College London, reported in the Blackstone’s Guide, that in: “the United Kingdom, freedom of information has met its core objective of transparency and, in the correct circumstances, accountability. Yet it has not achieved the secondary objectives, the ‘wider transformative’ aims, that flow from them (page 10)”.15

27. A practical example of this transformative failure to really embrace public accountability can be seen in the exchange between the DfE and the Whatdotheyknow website on 21/2/11 (http://www.whatdotheyknow.com/blog). The DfE wrote in the following terms:

(a)“We changed the way that people contact our department last year, encouraging customers to go to our website to find what they are looking for and submit an enquiry via our contact us page (www.education.gov.uk/contactus) if they could not locate information.”

(b)“The [main FOI] mailbox that your system points to ([email]) will eventually be phased out and I would be grateful if you could advise customers using your website to refer to www.education.gov.uk/contactus if they need to contact the Department.”

28. Whilst is fine to offer people the option of using the DfE website, it is unacceptable to limit people to using the website to submit FOIA requests. We share the views and concerns expressed by Whatdotheyknow in response to the DfE and hope that the Committee will note the comments and the importance of transparency in the FOIA process:

(a)“We certainly agree that people should check whether the information they are looking for is already available before submitting a FOI request—and indeed we already prompt all users of WhatDoTheyKnow to do so, not just for the Department of Education, but for every public authority we list. When requests are submitted through WhatDoTheyKnow responses are automatically published ensuring a lot more information ends up online and publicly accessible than when submitted privately.

(b)If the Department for Education wants to reduce the amount of correspondence it gets in relation to already published material it should be encouraging people to make their FOI requests via WhatDoTheyKnow. Already, based on Ministry of Justice statistics, we calculate around 10% of all Freedom of Information requests to the Department of Education are made via our service.

(c)We have asked the department to let us know which alternative email address they would prefer us to forward FOI requests to, and we await their reply. We are happy to use whichever email address is easiest for a public body.

(d)We have also made clear that we will continue to offer our users the ability to make requests to the Department of Education via our site and will not be removing that facility and directing people to the department’s contact form as we were asked. Forms often include unnecessary mandatory fields that the FOI legislation does not require (in the DfE’s case they ask what kind of a requester you are, making you specifically type in ‘prefer not to say’ into an ‘Other’ box if you want to opt out).

(e)The law rejects the idea that public bodies are allowed to erect artificial barriers like this, and we have noted that a FOI request is valid regardless of which email address or member of staff within an organisation it is sent to.

February 2012

1 Equanomics-UK addresses race equality in the UK from an economic perspective. It is a broad based coalition of individual activists and voluntary and community based organisations. It seeks to build awareness of the impact of poverty on BAME communities and develop appropriate action.

2 The BME VCS Coalition brings together existing national, regional organisations and other founder members to fulfil our shared objectives to challenge racism by strengthening and supporting what we already do to influence public policy, the media and key decision makers.

3 Cm 8236 presented to Parliament by the Lord Chancellor and the Secretary of State for Justice: December 2011.

4 Protection of Freedoms Bill (HL Bill 121) clauses 102 and 103.

5 [David Cameron, May 2010] http://www.number10.gov.uk/news/letter-to-government-departments-on-opening-up-data/)

6 Training programmes for VCS organisations on the public sector equality duties and the FOIA.

7 Public law and Compact training workshops for the VCS.

8 Recommendations 1 and 2 (page 327): The Stephen Lawrence Inquiry, report of an Inquiry by Sir William Macpherson of Cluny. Please note that the 1999 report predated the subsequent FOIA 2000.

9 The recommendations (chapter 47), especially recommendations 9, 10 and 17: The Stephen Lawrence Inquiry, report of an Inquiry by Sir William Macpherson of Cluny.

10 The FOIA 2000, Part II section 21—section 4

11 For example by virtue of the fact that it is not a public body or a publicly owned company.

12 http://foiwiki.com/foiwiki/index.php/Changes_we_would_like_made_to_FOI_law

13 At present there is no fixed time limit in law for carrying out public interest tests. This means that in practice a public authority must respond in full to an FOI request within twenty days except where a public interest test is being considered in which case we understand that there is no fixed time limit for responding to the request.

14 The Afiya Trust designed the FOIA questions to elicit information that it believed that local authorities, complying with their public sector equality duties, should hold.

15 Ben Worthy, “More Open but Not More Trusted? The Effect of the Freedom of information Act 2000 on the United Kingdom Central Government” Governance 23 (4) p. 561
http://onlinelibrary.wiley.com/doi/10.1111/j.1468-0491.2010.01498.x/abstract

Prepared 25th July 2012