05.03.07 Look
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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.
Comment on this article
Government
set to break promise to MPs on FOIA
Ministers consider changing
FOIA charges regime
MPs: FOIA regulator must
become more ‘assertive’
Ministers
deny plans to increase FOIA charges
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