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Ministers fail to realise that the benefits to society of a democracy that is truly open out-weigh the costs. This failure is demonstrated by their proposed amendments to the regulations governing fees for the freedom of information act (FOIA).
The department for constitutional affairs, which oversees FOIA in the UK, claims that the changes are necessary to save costs. This is phoney.
First, it has relied on a flawed analysis that fails to make the case that its proposals would save significant costs overall – or at all. Its assumptions have proved to be wrong, and it fails to take account of several crucial factors.
Second, the government would best direct its professed enthusiasm for saving costs in the area of providing information to the public towards its “public-relations” operations. As Nicholas Jones, formerly of the BBC, writes in an article on this website, this government has shown its preference for spin over FOIA: it favours propaganda rather than providing the public with solid, real information.
The government is proposing to allow public bodies, in deciding whether to refuse a FOIA request because it is deemed too onerous, to include assessments of cost for various activities currently excluded, namely time spent by officials and ministers on “examining” material, “consulting” about whether to disclose, “determining” whether any exemption applies to information requested, and “reaching a decision” on whether any such exemption should be applied.
A central government department can refuse FOIA requests if it assesses the cost of compliance would exceed £600: for other public bodies, the limit is £450.
The government is also proposing to “aggregate” requests from any one party so that the limit applies to the estimated cost of complying with all requests that it makes to a single public body within a 60-working-day period. As has been widely reported, this would, for example, hit newspapers, although FOIA Centre clients would continue to be able to have FOIA Centre consultants file FOIA requests.
The proposals would, nonetheless, mean changes to the FOIA Centre’s services and prices, to be announced after new FOIA regulations are introduced, which is expected in April.
Each of the government’s two proposals would have a devastating impact on FOIA’s ability to hold government to account. They represent an all-out attack on “freedom of information” in practice in the UK.
And they would have enabled public bodies to refuse many FOIA requests that, since 2005, have resulted in disclosures greatly in the public interest. We outline just four examples towards the end of this article.
The very FOIA requests and FOIA requestors alleged to be particularly costly tend to be the very ones that are most effective at using FOIA to hold public bodies to account, in particular regarding their use of public money. Greater openness tends to help keep spending by public bodies in check. FOIA, far from being a cost to society, generates net savings.
The government’s attempt to restrict FOIA is testament to the effectiveness with which a variety of people and organisations have employed the limited “freedom of information” provisions in the UK.
Reforms to FOIA should be focussed on making it more effective at holding government to account. While FOIA has resulted in much disclosure serving the public interest, it has been beset by endemic delays. These delays plague all stages of FOIA requests, both at public bodies and the information commissioner’s office, which regulates FOIA in the UK, caused in part by the need to apply and interpret an already overly complicated piece of newly enforced legislation.
The proposals would add to the delays, introduc-ing significantly different regulations that would inevitably result in lengthy – and costly – testing (of which the department has failed to take account).
The most important area requiring reform is the information commissioner’s office, which must have sufficient resources to clear the backlog of complaints. As Heather Brooke, author of a guide to FOIA in the UK, wrote in an article on this website a year ago, the information commissioner is failing as the UK’s FOIA regulator. And despite changes by the information commissioner, her assessment remains as relevant today as it was then.
The department for constitutional affairs is carrying out a “consultation” exercise on its proposals, with the deadline for submissions expiring on March 8. However, the consultation is a sham. It has invited responses to highly restrictive questions, and even fails to invite responses on all the changes proposed.
Beyond the narrow scope of the consultation, the changes are proposed on a false assumption, namely the need to curb the allegedly excessive cost of FOIA to public bodies. In particular, it seeks to curb the cost of a small proportion of requests from professional requestors.
The new regulations as proposed would them-selves require additional resources to implement and interpret in the case of particular requests (of which the department has failed to take account).
This is exacerbated by the proposed regulations being vague as vague as they are, which also leaves them open to abuse by public bodies.
The regulations ought to be drafted more precise-ly. The proposed regulations are so poorly drafted that they need completely re-writing.
Refusals citing the new regulations, as proposed, would frequently be open to challenge by requestors. This would result in a large cost to public bodies, as they would have to deal with the inevitable challenges to the regulators and, potentially, the courts, all of which the department has failed to take account. Contrary to the department’s claim, this would be a persistent problem because of the delays already in the FOIA regulatory system.
The department has also failed to take account of the increased cost caused by requestors inevitably seeking more “advice and assistance” under FOIA as a result of the proposed changes than they already do.
As to the detail of the proposals, additional costs of complying with a FOIA request, in assessing whether a request is too onerous, should not be introduced without a proportionate increase in the “appropriate limits”, the maximum amounts above which pubic bodies do not have to comply with a request.
The proposed changes represent, in effect, a sharp reduction in the resources a public body would be required to spend in complying with a FOIA request.
Moreover, the proposed changes will impact far more requests than merely, in relation to central government, the 5% said to cost more than £1,000. The department claims that it is trying to tackle the problem of these kinds of requests: if so, it should accompany properly drafted changes to cost requests more accurately with an increase in, for example, the central government “appropriate limit” from £600 to £1,000.
The department is proposing to introduce “ceil-ings”, within the “appropriate limit”, to ensure that a public body cannot refuse complying with a request solely because of the costs to it of either consulting or considering FOIA requests. This is proposed to be set at £400 for central government, and £300 for other public bodies.
However, such ceilings would fail to prevent enabling public bodies readily to avoid complying with a specific request in part using either or both of these new devices.
If a public body were to claim that a request requires the maximum allowable amount of consulting or considering, then there would be very little margin left to cover all other costs. Moreover, if a public body were to claim that a request requires a lot of consulting and considering, it would be able to refuse to comply with a request solely on this basis.
As a consequence, and contrary to the depart-ment’s claim, requests would be rejected in either scenario, principally or solely, because they are “sensitive” or “difficult”.
The damaging effects of the inclusion of consult-ing and considering would be slightly reduced with a reduction in the ceilings, which are best set at a per centage of the maximum limit for all costs (which should be increased to at least £1,000 for central government requests): it should be no higher than 10% for each.
The proposal to allow public bodies to charge FOIA requestors for consulting and considering, without limit, would be open to abuse. There is no justification for it.
In addition, the proposals are inconsistent be-cause they do not include ceilings in relation to examining documents relevant to FOIA requests, as they do in relation to consulting and considering.
There is no reason in principle why ceilings are not also appropriate for examining material. This would at least ensure that a public body could not avoid compliance solely by examining material.
The second area of proposed change is to agg-regate requests on different subjects from one requestor, or requestors alleged to be working in concert or in pursuance of a campaign, in estimating the costs of requests. This would particularly hinder media organisations, which in effect make requests on behalf of the public at large, and other professional requestors, who make requests on behalf of members of the public otherwise unable or unwilling to negotiate the complexities of FOIA.
These types of requestor have proven to be most effective at using FOIA to hold public bodies to account on behalf of the public. Curtailing such requestors would therefore have a hugely damaging effect to the public interest.
Professional requestors also stop people from fil-ing FOIA requests that would waste public bodies' time and resources. The same effect applies to “reviews” and “complaints”.
Curtailing requests from professional requestors would result in public bodies seeing a large number of time-wasting “unsifted” requests, and, indeed, having to provide members of the public with a good deal of assistance with FOIA that professional requestors currently provide. Again, the department has failed to take account of this.
Under the proposals, public bodies would be able to deal with more media enquiries than they currently do only as FOIA requests, then aggregate such requests from a media organisation and so refuse to deal with such enquiries at all. This would have the extraordinary consequence of FOIA tending to make public bodies in the UK less accountable than before FOIA was introduced.
Newspapers frequently obtain confidential personal information illegally, as the information commissioner has highlighted, the recent News of the World case has demonstrated, and the book, The Fleet Street Sewer Rat, by Mark Watts, has exposed.
We have previously pointed out that newspapers in the UK employ these exotic techniques because of its culture of secrecy. While that is no justification for routine use of illegal information gathering, a society that increasingly rejects such methodology must embrace “freedom of information”.
We regard it as imperative that the extended agg-regation provisions do not apply to professional researchers, journalists or media organisations. However, there are difficulties in deciding who or what qualifies in these categories, so the aggregation proposals should be abandoned.
The aggregation proposals, and associated guid-ance, also change a fundamental principle of FOIA, one that we have long advocated and one which has found support in decisions made by the information commissioner, that the interests of the requestor is irrelevant to the decision as to whether any requested information should be disclosed. This principle should not be overturned in the underhand manner proposed.
This is reinforced by the fact that even under the flawed analysis commissioned by the department, the saving that would allegedly be achieved by the aggregation proposals would be highly marginal.
There are many examples of FOIA requests that would have failed had the proposed regulations already been in force. One example concerned the department for constitutional affairs itself.
The background to the request was that we, and our newspaper client, did not believe that Michael Burgess, then the coroner for the inquest into the death of Diana, princess of Wales (as well as then the coroner for the royal household) had proper jurisdiction.
A FOIA request was filed to the department for “copies of documents relating to the choice of coroner”. The department granted itself an extension ten times to consider the possible application of an exemption: it plainly would have used the amended fees regulations to evade disclosure in this case if they had been in force: regardless of whether such use was in fact justified.
In the event, five months later, it partly complied with the FOIA request by releasing a “summary” of information stating that Burgess’s predecessor as coroner for the royal household, the late Dr John Burton, had wrongly assumed jurisdiction in that capacity on the false basis that Diana would be buried in Windsor Castle. Therefore, as suspected, Burgess did not have proper jurisdiction.
Coincidentally, on the very day of (eventual) disclosure, Burgess announced his resignation as coroner for the Diana inquest. An account of this episode can be seen here. The FOIA disclosures were also reported elsewhere in the media, although the resignation itself attracted far more attention than the jurisdiction issue.
The legal services commission took nine months to comply with a request for payments it had made to Cherie Booth QC and to Matrix chambers. An account of this can be found here. The disclosures were also widely reported elsewhere in the media.
The legal services commission said that the delay was caused by the difficulties in collating the information requested. This example illustrates that, because of typically chaotic information- management systems, public bodies can find it extraordinarily difficult to comply with straight-forward requests for information.
As a consequence, many FOIA requests would fall foul of the proposed changes because of the inadequacies of public bodies’ information- management systems. The department for con-stitutional affairs blames FOIA requestors for failing to make well-focussed requests, but public bodies are often unable to comply efficiently with even well-focussed requests.
Such poor information-management has been illustrated by the difficulties the home office has had in dealing with data on overseas convictions. The government should, for many reasons beyond FOIA, direct attention to overhauling public bodies’ information-management systems. One by-product of this would be to make it much easier for them to comply with FOIA requests.
Similarly, safety camera partnerships typically found requests for data on the proportion of speed-camera housings that actually contained cameras difficult to supply, and would no doubt have used the amended fees regulations to refuse disclosure: regardless of whether such use was justified.
In the event, the data showed that, as tighter restrictions were imposed on the use of speed cameras, there had been a sharp rise in the proportion of speed-camera housings actually containing cameras. An account of the findings can be seen here. The Sunday Times also ran an article on the disclosures.
Another example concerns FOIA requests that we made on behalf of the parents of a child alleged to have suffered debilitating adverse reactions to the MMR triple-vaccination. Requests were filed for the minutes of various Whitehall meetings.
The requests resulted in a tortuous process, in which extensions were claimed to consider possible exemptions. The government would have been able to use the amended fees regulations to evade disclosure if they had been in force: regardless of whether such use was justified.
In the event, the department did disclose, with redactions citing exemptions, the vast majority of the minutes requested. And they reveal that health officials received alerts from overseas about serious adverse encephalitis-type reactions to the MMR vaccine prior to introducing it. An account of the findings can be seen here. The Daily Telegraph also ran articles on the disclosures.
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