Justice CommitteeWritten evidence from PCS

Executive Summary

1. The Public and Commercial Services Union (PCS), the largest civil service trade union, welcomes the opportunity to give evidence. Our submission is based on our experience of using the FOIA and representing members whose work involves giving information.

2. We believe the government should observe principles of freedom of information, transparency and improved access to information in order to assure accountability of public authorities and effective government, and to balance these with safeguards for personal information and identity protection.

3. We have had some difficulties in using the FOIA, including meeting resistance in providing the information, the use of excuses such as commercial sensitivity to refuse information, and found that making requests can often be a time-consuming and lengthy process. However we believe it is a very important tool and should not be weakened, and certainly not on the grounds of costs.

Introduction

4. PCS is the largest civil service trade union in the UK, representing over 280,000 members working in government departments, non-departmental public bodies, agencies and privatised areas.

5. We welcome the opportunity to give evidence to this call for evidence for the Post-Legislative scrutiny of the Freedom of Information Act 2000 (FOIA). Our submission is based on our experience of using the FOIA and our support for the principle of open government. In addition we have an interest because many of our members’ work consists of gathering and providing information across government on a routine and FOI basis.

6. PCS responded recently to the government consultation “Making Open Data Real”. We said that two key principles the government should observe are:

Ensuring that principles of freedom of information, transparency, co-ordination and improved access are balanced with safeguards for personal information and identity protection.

Promoting the importance of transparent and accessible information in encouraging accountability and scrutiny of elected representatives and public bodies

7. The call for evidence invites us to answer these questions:

Does the Freedom of Information Act work effectively?

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

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

8. Our submission answers these questions, makes a few other points, and then outlines our view about the implications of any weakening of the FOIA.

9. We have used the FOIA to assist in collective bargaining, representing members, and protecting the services they provide. We have had some difficulties in using it, but believe it is a very important tool and should not be weakened.

10. We believe that transparent and accountable government is an important principle. The effectiveness of government is strengthened by the ability of the public to obtain information of crucial relevance to their lives and to the workings of an open society.

Does the Freedom of Information Act work effectively?

11. PCS uses the FOIA in a variety of circumstances and has found it a very valuable tool in accessing information about the services our members provide. However there are some difficulties in using it.

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

Strengths:

12. The FOIA is a vital tool of a functioning democracy—giving rights to citizens, NGOs and the media to hold government to account. The Act is vital to ensuring there is open government—to enable the public to see how their money is spent, the elected representatives act and to understand how government works.

13. PCS reps and officials have used the FOIA often to obtain information from the employer that they have been reluctant to provide, even though in most cases it would be appropriate for them to do so. On a number of occasions the employer has refused to give the unions information on the grounds it is commercially confidential but to us it appears that the employer or the Department are hiding information from staff and public.

14. Sometimes the fact that it is possible to seek information using FOIA has persuaded the employer to provide the information without actually needing to make the request. If the government is looking to cut costs, it should do so by embracing greater openness rather than by restricting the scope of the FOIA.

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

Weaknesses:

15. PCS has sometimes experienced some difficulties in using FOIA.

16. In our experience, great care has to be taken in phrasing the FOIA request to ensure that we have left no loopholes that an employer or public authority who is reluctant to provide information can use to avoid giving information.

17. Information has also been refused on the grounds that it is commercially sensitive, and sometimes this expression has been used to cover a broad range of circumstances which we would challenge as going beyond the original purpose of exemptions. We would argue that it is appropriate to make this information open because it is in the public interest to know how public money is spent and whether it is cost-effective.

18. The FOIA seemingly does not cover advice to ministers. We believe this should be included in the scope.

19. Although FOIA requests are supposed to be answered in 20 days, our experience is that it can take considerably longer than that to gain information we need. This is even more so the case if the original response either refuses to give information or gives less than we would expect and therefore we have had to challenge it, and this can be a very time consuming and long winded process. This is particularly a problem if the situation we are trying to challenge is time sensitive, and can mean in practice that the original intention of the FOIA is not being met. If we believe that in a particular situation public money is being wasted now and we seek relevant information to uncover this, but are met with either refusal or incomplete information, we have to embark on a process of going to and fro to get the information. This process can sometimes take many months, by which time the situation we are challenging will have moved on, and the opportunity has been lost to tackle the problem.

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

The FOIA should not be weakened

20. Despite some problems in operation, we believe that the FOIA is an important driver for open government and effective industrial relations and we would not want to see it weakened nor would we want to see any extending of the exemptions.

21. If the FOIA was weakened, for example by expanding the potential for exclusions from the data provided, then government would be less open and accountable, and information of genuine interest and importance to the public would not be made available. Such a move is unlikely to be in tune with the public mood, or with stated government aims to improve transparency.

22. In our response to the recent consultation “Making Open Data Real” we said that we agreed with the premise of the proposals, which is are worth quoting here:

23. “Open Data may be the most powerful lever of 21st century public policy: it can make accountability real for citizens; it can improve outcomes and productivity in key services…; it can transform social relationships—empowering individuals and communities; and it can drive economic growth”.

24. It is our view that accurate and well presented information and data is essential in underpinning all these outcomes.

25. It is worth making the point that greater clarity and better guidance about what information is published routinely (and when, how frequently) and is therefore already publicly accessible would help better identify where an FOI request is appropriate and necessary (thus being more efficient in use of organisations’ resources in dealing with requests).

26. We believe that it would not be appropriate to weaken the FOIA or expand exclusions on the grounds of costs and staff resources in operating it. Transparent and accountable government is an important principle, and public authorities should be properly resourced to meet it, rather than resources being cut.

February 2012

Prepared 25th July 2012