Justice Committee’s FOIA conclusions – Part 1

Today the Justice Committee produced their report on the Freedom of Information Act 2000 (FOIA).  This concludes the Committee’s post-legislative scrutiny of the FOIA and follows many written submissions and oral hearings of evidence.  I submitted my own written evidence.

The tone of the report was set from the very outset where the first words of the report declared Freedom of Information to have “been a significant enhancement of our democracy.”  From the very outset it was clear that the committee was not going to be recommending anything that would substantially reduce, restrict or harm the rights afforded to everyone under the FOIA.

There were some clear battles between proponents of the FOIA and those who were seeking to undermine its provisions.  Many from within Government were clearly wanting a return to the “good old days” of total secrecy and the ability to largely control what was released from the Government’s large archives of information.  In almost all of those battles though the Committee rejected the arguments of those seeking to undermine the provisions of the Act and have produced a report that if implemented would further strengthen the Act.

One of the battles that has emerged is the effect that FOI is having on the workings of Government.  High profile people argue that there has been a “chilling effect” where less is being written down about important decisions.  Lord Gus O’Donnell (GO’D) and others would have you believe that inside of Whitehall civil servants are paralysed with fear to send an E-mail or write down notes when on the telephone in case that bit of paper is released under FOI.  The committee were not convinced and stated so:

We are not able to conclude, with any certainty, that a chilling effect has resulted from the FOI Act

Given that uncertainty, the committee say, they would not be recommending any changes to the current system.  The Committee points to the Commissioner’s decisions and Tribunal judgments which clearly recognise the safe space said to be needed for effective Government.  They also point to the ministerial veto which can be used for when the Government thinks that the Commissioner/Tribunal got the public interest test wrong.  To GO’D and the others concerned about the infringement upon the safe space the Committee recommends that people be reminded “that the Act already provides a safe space, and that the Government is prepared to use the ministerial veto to protect that space if necessary.”  The key seems to be about education rather than amendment.

In evidence the Attorney General accepted that there would be occasions on where the public interest does not lie in maintaining the s.35 exemption.  His comments came in relation to discussions about minutes made at meetings of the Cabinet.  The AG is quite right on that point and it is why it is excellent that the Committee has not recommended making s.35 an absolute exemption or creating a class exemption for cabinet minutes.  These things should be determined by what is in the public interest.

Another area of battle that has come about over FOI is the cost and burden to public authorities of FOI.  A lot of public authorities who submitted evidence complained about how much time it took or how much it actually cost to deal with FOI requests.  The Committee however pointed out in its report that when public authorities are looking at the cost of answering an FOI they are not looking at the wider benefits of FOI.  The Committee in their report state:

FOI has costs, but it also creates savings which accrue from the disclosure of inappropriate use of public funds or, more importantly, fear of such disclosure.

It is important that when discussing the costs of FOI that we do not overlook the savings that are made or the potential for savings to be made as a result of the FOIA.  After the MPs expenses scandal and other scandals involving wasteful spending of taxpayers’ money, public authorities are more aware that their spending decisions are more likely to be scrutinised and be scrutinised to a greater extent.  No longer can public authorities publish meaningless budget figures which allow the public to see spending only at the highest possible level.  It is now possible for people to investigate those costs further and drill down to see exactly how money is being spent and wasteful spending can be identified.  This saves money for the public in the long-run and should force public authorities to think more carefully about spending decisions.  As time goes on hopefully public authorities will look beyond the nice shiny immediate savings and consider how in three or four years time their spending might look in that area as a result of the decisions taken today.

Recently FOI has revealed some financial issues which are costing the UK taxpayer.  The Telegraph reported that data from an FOI request showed that large numbers of EU students were coming to universities in the UK, taking advantage of loans and then either disappearing or going into arrears with the repayments.  This is a cost to the taxpayer and FOI has made this information public which will hopefully result in action being taken to ensure that this money is recovered and perhaps a look at the system to ensure that EU students taking advantage of loans here in the UK repay them.

The Committee looked at a number of ways that flat fees could be introduced to FOI.  They dismissed charging some and not others for simply making a request because of the applicant blindness requirement, but also because it would be easily circumvented and both difficult and expensive to police.  They also stated that introducing “fees at a level high enough to recoup costs would deter requests with a strong public interest and would defeat the purposes of the Act.”

Some public authorities had made mention of frivolous requests, such as those about plans to deal with a Zombie attack.  The committee was satisfied that this was a relatively small problem and that these “requests can usually be dealt with relatively easily, making it hard to justify a change in the law.”  Of course, it has been pointed out that not all requests which public authorities deem frivolous are such.  Local authorities have paid for exorcisms and the MoD has spent public money on collating information about UFO sightings.  As for zombie attacks, well some people are genuinely afraid of such matters and if spending a few quid to send them a letter saying “we have no specific plans, but our civic contingency plans would cover it” reassures them then that’s just fine.

If the law were to be changed to include frivolous requests to be refused then defining such requests would be a nightmare and no doubt a lot more money would be spent on appeals to the Commissioner and Tribunal than it does to just answer the request in the first place.  Vexatious requests are another matter and are provided for adequate in the current Act.

The Committee was seemed alert to the burden of FOI on authorities though in times of austerity and recommended a slight reduction in the appropriate limit of a couple of hours.  It rejected though suggestions that including the time spent reading and considering the information for disclosure.  Of that it said that these “activities are overly dependent on the individual FOI officer’s abilities, introducing an element of inconsistency into the process that undermines the fundamental objective of the Act, that everyone has an equal right to access information.”

That concludes the first part of this run through the Committee’s report and looks at some of the major battles that have been going on in the world of FOI.  The next part of this run through will focus on the recommendations that the Committee has made which will strengthen the process and the Act.

Justice Committee’s report (pdf)
Oral and Written evidence (pdf)
Additional (unprinted) evidence (pdf)

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