Justice CommitteeWritten evidence from The Guardian

We are writing in response to the Memorandum to the Justice Select Committee published in December 2011 “Post-Legislative Assessment of the Freedom of Information Act 2000 (FOIA). The FOIA came into full effect on 1 January 2005 and the publication of the Memorandum arises from a commitment by Government to conduct a review of the operation of FOIA to determine how far it has achieved its original aims and objectives. The Introduction says “this was part of a package of measures relating to Coalition Agreement commitments to increased transparency and the extension of the scope of FOIA.

We have had a short period within which to consider this Memorandum and would welcome the opportunity to submit further evidence in writing or orally to the Justice Select Committee.

Summary

FOIA has provided a valuable tool for journalists in investigating matters in the public interest. Media reports of matters concerning public bodies, and both local and central government are a vital part of the government’s commitment to transparency and accountability.

Concerns expressed by Guardian journalists include:

Some journalists are confronted with unreasonable delays in processing their FOIA requests.

There is no real sanction for delay or for misinformation about FOIA requests.

Some authorities have played a positive role in advising and assisting journalists on, for example, re-configuring their requests to avoid exceeding the costs limit in s12 of FOIA, while others have resisted offering any guidance or help—for example, refusing to provide a schedule of material until the first day of an appeal to the Tribunal.

Public bodies sometimes resist normal enquiries from journalists and automatically treat them as FOIA requests, leaving journalists with the distinct impression that a legitimate journalistic enquiry has been “kicked into the long grass”.

Public bodies sometimes resist considering other ways of legitimately providing information eg using the ACPO/CPS/Media protocol.

The internal review procedure and appeals to the ICO and Tribunal take up huge resources in time and costs to both the public body and the requester, which could be avoided by early, positive advice and assistance to requesters.

Public bodies can introduce new exemptions at a late stage in the appeal process.

Proposals re. scientific research: we note Universities UK submission. These proposals would have a serious chilling effect: peer review can take years, but the data may be of crucial interest now. Many papers are routinely posted online pre-publication now, with no evidence of harm. Any concerns about individuals involved in medical trials are already dealt with under FOIA and the Data Protection Act 1998.

Recommendations

Duty to assist should be improved: the public bodies who provided advice and assistance at an early stage both help the journalist to narrow down the information required, and reduce the time and costs incurred by the public body in complying with the request.

Schedules—instead of blanket rejection of requests, where possible public bodies should provide a schedule, to assist the journalist. Steps like these, taken at an early stage, would avoid appeals.

Information should be provided in an accessible format wherever possible.

Proactive release of data in accessible formats reduces the need for FOIA requests and serves the public interest.

There should be some real sanctions for those cases of unreasonable conduct in responding to FOIA request, including inordinate delays.

Costs Limit—the “appropriate costs limit” should not be reduced, nor should matters such as “internal consultations” be taken into account in assessing the costs limit (which leads to the rejection of the request). These factors are difficult to assess objectively and could be manipulated by some public authorities in order to exclude request.

Costs/fees—we are not convinced that a fee for a category of requester would work, especially in these days of citizen journalism.

Costs/fees—we note that few bodies charge the fees they are entitled to do already (it may be the costs of collection exceed the costs of claiming a fee for copying etc).

Serial/vexatious requests: there is already provision concerning vexatious requests.

Serial requests/duplicated requests: the number of these could be reduced substantially if better disclosure logs were kept and advice and assistance was provided at an earlier stage.

Serial requests—the collection of data from a number of public bodies is often highly justified and can lead to better data collection by public bodies (eg see vascular surgery data).

Public bodies should not be able to rely on new exemptions at late stages in appeal process. This approach results in huge costs and wasted resources on the part of the public body and the requester.

The Media’s Role in Disseminating Information

The media plays a crucial role in the commitment to openness and accountability. It is the channel whereby most people will learn about local and central government and other public bodies.

FOIA 2000 has provided an additional means to investigate matters of public interest and it is a vital part of freedom of expression and access to information. Perhaps one of the most prominent recent examples was the MP’s expenses story—not a Guardian story, but an example of how a story about an extremely important matter of public interest arose out of years of battles for the release of the information under FOIA. Some would argue that the attempt by government to withhold certain information served to have the opposite effect of that intended—it spurred someone to leak the unredacted information.

Guardian News & Media has published a range of stories relying on information obtained under FOIA 2000 and these have been important stories in the public interest. Media organisations, by raising matters of concern, play an important part in informing the public and improving services, thereby increasing public confidence in public bodies.

A noteworthy example is the research Guardian journalists undertook into NHS vascular surgery, analyzing data collected through FOIA requests (stories attached/see annexed list of links). The articles about vascular surgery revealed how little data was being collected by NHS bodies on the success and failure rates of vascular surgeons. Doctors did not know how well they or their colleagues were performing, leading to a “paucity of patient choice”. More than ten years after the “Bristol baby scandal” the NHS failed to collect and publish data that would help patients to make more informed choices. The series of stories led to calls by health professionals for better data collection, and also helped to identify those areas of high risk (eg bigger, busier hospital units offered better services). These stories led to the Guardian winning an award from the Royal Statistical Society, and have led to the ongoing call for better data collection by the NHS—(in March 2011 cardiovascular surgeons, backed by the Royal College of Surgeons, took the unusal step of criticizing other specialists for failing to collect data on deaths and other treatment).

In response to Guardian investigation, John Reid, then health secretary, responded with a promise that every individual heart surgeon’s result will soon be provided on a public access website.

Other important issues have been covered in stories based on information acquired through FOIA applications. For example, we discovered what the government legal advisors were thinking on internships and pay—as a result of this story people were more likely to know their rights under minimum wage legislation.

There are numerous examples of public interest stories resulting from FOIA including matters such as the numbers of civilians killed or injured since January 2005 in Afghanistan; stories about oil and gas spills in the North Sea; revelations about the state of university and school buildings (some of which were “unfit for purpose”), whether BBC was recruiting locally in Manchester and BT’s dominance of health service information technology. (These and other examples are attached.)

These are legitimate matters of public concern, and it is right that journalists (and members of the public, and campaigners) should be seeking this data from public bodies. Journalists have always sought out such information on the conduct of local and central government and public authorities.

FOIA should be “applicant blind”—indeed these days of citizen journalism mean that a different regime for journalists would be unworkable.

It is unfortunate that—from the small sample considered in the Memorandum—some FOI officers are reluctant to perceive journalists as carrying out any legitimate role of informing the public and holding public authorities to account. While scrutiny may be difficult to accept, in the long run it must should lead to improvements in services and therefore improvements in public trust and confidence.

We do not accept that it is right that, as said in Annex D p87:

“FOI is unlikely ever to increase trust, because the government’s battle with the press over bad FOI stories is one that can never be won”. (Hazell and Worthy 2009)

In our view, the building of trust in public bodies is a long process, part of which is the process of making them more accountable and the public perceiving that the public authorities have responded to legitimate public concerns. The role of the media is not to do “good pr” for public bodies, and this would certainly not be the best way to build public trust.

Journalists’ Experience of FOIA

We have conducted a quick and informal survey of journalists, asking them to comment on the operation of FOIA. Their responses are as follows.

Some public bodies have taken a more positive approach to the release of information than others, and this is welcomed by journalists. The proactive release of information reduces the need to make formal FOIA requests. One journalist commented “The MoJ had a lot of success by releasing huge volumes of information in the wake of the riots, such as detailed information on progression through courts and deprivation. This is information that would usually only be released through FOIA.” The disclosure of Ordnance Survey Data is another example of successful proactive disclosure.

Many journalists complain that public bodies do not advise and assist as required to do under s16 FOIA. Those that do assist journalists (and other requesters) help to reduce the time and costs involved in dealing with applications. One journalist said:

“I learnt a lot from a request made to the DoH, for all its suppliers and the amounts paid in 200910. To its credit, despite refusing the request on cost grounds, the department made itself open to discussion on scaling this down to something it could manage within the cost parameters, which I took up. This resulted in a series of successful applications and article by myself and colleagues on the top 100 suppliers to government departments… authorities should be encouraged to discuss applications they want to refuse, but I’d also suggest that some training and flexibility on behalf of the media might be invaluable”.

Recently, the Information Rights Tribunal commented as follows on a Guardian journalist’s application for disclosure of documentation held by the CPS:

“The documentation held by CPS… ran to 6 lever arch files. It was clear to the Tribunal from its preliminary reading that only a very small proportion was likely to be of interest to the requester or the public at large. So it proved. .. the files contained around 2,000 pages .. a very large number could be described in terms that enabled Mr Cobain to withdraw his request so far as it related to them. …, Mr Cobain is certainly not to be criticised for failing to narrow his request earlier when he had no clear idea as to what CPS held, due in large measure, to the refusal of his request for the schedule. A very helpful schedule was prepared on the first day of the appeal..” [emphasis added]. (Cobain v Information Commissioner and CPS FS50352663) Note that the request for information was made on 9 October 2009 and the Schedule was only provided at the Tribunal on 16 December 2011 once the matter had gone to appeal).

Further Concerns Raised by Journalists

While many said that public authorities respected the 20 day time limit for an initial response, many others said that they always experienced delay. A difficulty that journalists identified is that public bodies can exceed the time limits without any apparent consequence. Often the public interest test is relied on simply to justify exceeding the time limit. One journalist had been told that the FOI officer was on an advanced driving course for three weeks, but the public interest test—which allows the authority to extend the time limit—was officially cited as the cause of delay.

All remarked that the internal review and appeal process took far too long—usually at least two years from the request to a tribunal hearing.

Public authorities can introduce new exemptions that they intend to rely on, at a very late stage in the appeal process. This has serious costs consequences for all involved, and is an issue that should be addressed.

The officials who respond to FOIA requests are often part of the communications team, sitting with the press and PR officers, and this can colour their response to a legitimate request.

Journalists are very concerned that private bodies performing public sector functions are not covered by the Act. FOIA should cover those private sector organizations who are involved in provision of public services. The contracting of service provision to the private sector is “muddying the waters”, meaning that “commercial confidentiality” can be relied on avoid disclosure of information. The schedule of FOIA should be more easily amended to include bodies dealing with public service provision.

In general, there is no real sanction for poor quality responses. In one example, the Cabinet Office was asked for information on meetings with a particular outside group. The response was that a search had revealed no records. The journalist discovered from an outside source that meetings had indeed occurred—the FOI officer had apparently contacted the wrong section of the Cabinet Office and had conducted only limited searches. The press office apologized, but to date, no information about these meetings has been supplied.

A simple, practical recommendation is that data should be given in accessible formats, rather than closed and hard-to-work formats like PDF files.

Concerns About The “Evidence” on Which the Memorandum is Based

We note that the studies undertaken in annexes D and E are largely is based on perceptions (of FOI officers in public bodies) rather than statistical data.

UCL Constitution Unit surveyed officials across local authorities and asked them to name the three biggest categories percentage of officials choosing journalists as the source of requests as largest volume. Most public sector organizations do not collect statistics, and we note that amongst those local authorities that do collect statistics there are huge differences in the results (see page 89 of the Memorandum):

The tone of the FOI officers’ responses in the research is telling: “These often take the form of requests for spending or expenses figures which are used for exposé articles. A popular theme last year, especially for the Daily Mail, Daily Telegraph and Times, was printing the salaries of senior local governmentt officials. Local and regional papers have also used the FOIA to produce this kind of article although they also use it for more localized concerns such as health and safety investigations of individual restaurants.” UCL const unit 2010. P90

These are all legitimate matters of public interest, and the media is performing its vital function as a “public watchdog” in informing the public of these matters. Public trust will not be engendered by only running “good news” stories about public authorities. Not only that, but this kind of investigative journalism can lead to better collection of statistics by public authorities. Note Sarah Boseley’s stories that led to better collation of statistics on the effectiveness of cardiovascular surgeons.

The study says: “Local authorities have noted that a significant number of requests they face are “round robins” from national media outlets, ie identical requests that are sent to every local authority in the country with the results being aggregated into nationwide statistics. These range in topic from drug use in schools to attacks on bin men.” P90

One way of dealing with this is for public bodies to proactively publish data of public interest. The media can assist: as in the health stories on vascular surgery, Guardian journalists collected and collated data that should already have been collected by health authorities.

A means to avoid duplication of requests would be for public authorities to publish a disclosure log. The provision of practical advice and assistance early on, and schedules of documents (if the documents themselves are too many to provide) can narrow the scope of a request, thus reducing costs and time involved.

Costs

Very few public bodies make use of the existing provisions re. charges, for example by charging for the cost of copying and supplying documents (only 7% Councils charged a fee in more than 5% cases p93). It seems unlikely that they would take up the opportunity to charge a “nominal fee” and the costs of collection may outweigh the benefit.

We strongly object to the proposal that the “appropriate costs limit” should be reduced, to enable more applications to be refused on the basis that this limit would be exceeded. The proposal to include other factors in assessing costs, for example the cost of “internal consultation” would be open to manipulation, providing a means to refuse access to information that may prove embarrassing to public bodies.

The data relied on in the Memorandum is inadequate and should not be used as the basis for making significant changes that would reduce access to information rather than fulfilling the pledge to expand FOIA and encourage openness and accountability.

For example, we note the discrepancies in the estimates of costs contained in Annex D:

Government FOI cases estimate £227 per case as baseline.

Universities £120 on each request: this is a much lower average, and yet no explanation is offered for this in the Memorandum.

We also note that the time spent processing FOI request fell 11.6 hours in 2008 to 8.9 hours 2009—thanks to pro-active publication, learning by FOI officers and more efficient data collection. (p93 Annex D). There may still be scope for more cost effectiveness as eight out of 30 central government bodies and 26 out of 90 police authorities have not yet adopted the ICO’s Model Publication Scheme.

There is no attempt to compare the costs of responding to requests for information prior to 2005 (and attendant judicial review cases) with current costs. No figures are provided for “start-up costs”.

The responses from FOI officers in Annex E (p104) are negative about the media —”requests from journalists and commercial companies are perceived to be a “drain” on resources, with some respondents questioning whether it is fair to devote public resource to providing information for private companies and those “looking for the next news story”.

Interestingly, at the same time the view of some FOI officials was that publication schemes were not being accessed by the public. “This was seen to relate to a lack of awareness that certain information was available, coupled with the ease with which a FOI request could be made.” P104 Perhaps this shows the crucial role that the media plays in informing the public and highlighting information—could public authorities exploit this more by a more proactive release of data and better co-operation with journalists?

We note that the concerns about costs are not just about journalism: “respondents also cited a number of other groups including students, commercial companies, and voluntary and campaign groups. In addition, respondents from NHS organizations also noted an increase in the number of requests from MPs, citing the proposed NHS reforms as a potential reason for this.” It would be unfortunate if the increase in number and range of requesters was used as a justification for charging for FOIA requests and thereby shutting down access to information.

Summary

FOIA has proved to be a valuable tool in investigative journalism, and has improved journalists’ ability to inform the public on matters concerning central and local government and public services. Many journalist comment on the efficient and helpful responses they have had from public bodies. However, others express serious concerns about the failure to comply with time limits and the fact that there is no sanction for a poor response to an FOIA request. The appeals process takes far too long, and public bodies often introduce new exemptions at a very late stage in an appeal. The matters raised by the small sample approached by researchers are mainly costs, and the perception that journalists are “serial and vexatious” requesters or are entitled to request information “just to publish news stories”. We are concerned that FOI officials have such a negative view of legitimate journalism, and that they do not appreciate that the principal way in which the public have access to information about public bodies is through the media. In our view, the proactive release of data has had a positive impact, and reduces the need for several different FOIA requests to different public bodies. Much of the journalism has revealed the paucity of data collection by public bodies, and the need for more information to be collected to improve public services and accountability. We have set out several specific points above, and hope that work can be done to encourage public bodies to provide assistance those requesting information at an early stage. The Guardian stories we attach to this submission illustrate the importance of FOIA –based journalism, and its role in informing the public about public bodies, scrutinizing their activities, holding them accountable and thereby improving the quality of their work.

February 2012