Category: FOIA

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It seems that after more than 7 years of being law, some public authorities still fail to fully understand their obligations under the Freedom of Information Act 2000 (FOIA). The Act, which came into force in January 2005, provides access to information held by a large number of public authorities.

Liverpool Community College appears to fail to understand its obligations under the Act. This is a conclusion that can be arrived at after seeing some responses to requests made through the “What Do They Know” (WDTK) website. The college’s dedicated page on the WDTK website shows a clear and consistent failure to comply with the FOIA.

Each request submitted through the website has not been responded to by the college other than to point them towards the College’s website on FOI or to state that a form must be completed and sent to the college. The college’s website also suggests that the only way in which a request for information can be made to the College is to send a form to the College. This is in clear breach of the FOIA.

The FOIA only sets three requirements for a FOI request to be valid. Those requirements are set out in Section 8 of the FOIA, which reads:

(1)In this Act any reference to a “request for information” is a reference to such a request which—

(a)is in writing,

(b)states the name of the applicant and an address for correspondence, and

(c)describes the information requested.

(2)For the purposes of subsection (1)(a), a request is to be treated as made in writing where the text of the request—

(a)is transmitted by electronic means,

(b)is received in legible form, and

(c)is capable of being used for subsequent reference.

As can be seen the Act is quite clear; a request can be transmitted by electronic means. The WDTK website works by sending an E-mail to the authority from a randomly generated address which is linked directly to the request thread created by the user. It is, in short, a request being made by E-mail.

Once a public authority has received a valid request for information their obligation to respond in accordance with the Act begins. They might have a preference as to how requests are received, but if a request is made in accordance with the requirements in Section 8 of the FOIA then the authority is obliged to respond to the request.

The Information Commissioner’s Office summarised their position on both WDTK and E-mail as methods of making a request for information pursuant to the FOIA in this letter to Rother District Council.

Hopefully someone will draw the College’s attention to the fact that they are not acting in compliance with the FOIA. It is hard to believe that after 7 years of operation some public authorities still do not understand the most basic elements of the FOIA. It is essential that the college is able to identify a valid FOIA request. Requests could be found within correspondence sent to the college in pursuance of other matters (e.g. a complaint) and a failure to identify a request or to deal with a request obviously labelled as one that has not come in on the College’s request form is a blatant technical failure. There is certainly a training need at the College around the FOIA and hopefully that will be addressed once the College is aware of its mistakes.

Persistant or Vexatious?

Vexatious requests (and indeed vexatious requestors) has been a battleground since the introduction of the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002. Both the FOIA and FOISA look at the request rather than the requestor when it comes to considering a vexatious request. While other contact between the requestor and the public authority can (and will) be considered it is not about proving that the requestor is a vexatious requestor (in the way a court can declare a litigant as vexatious), but rather demonstrating that their request is vexatious.

The UK Information Commissioner has recently issued a decision notice looking at Leicester City Council’s use s.14(1) of the FOIA and made some interesting comments regarding the Council’s handling of this particular request.

The complainant has a history of corresponding with the Council over issues to do with it’s compliance with a particular section of the Licensing Act 2003. There were more than 150 pieces of correspondence given to the Commissioner by the Council in support of its position that the requestor was vexatious. There are a number of interesting facts about this case which appear to have influenced the Commissioner’s decision.

The Council is required to make certain information available to the public upon request by the 2003 Act. Leicester City Council makes this information available online and is therefore easily accessible to members of the public via the Council’s website. However, the Council did not seek to rely on the exemption at s.21 of the Act (information otherwise available). One can only speculate as to the Council’s reasoning for this, but it might be influenced by the following facts. The Complainant in this case only ever corresponded with the Council and the Commissioner by way of handwritten letters. The Commissioner said, at paragraph 9, that the complainant’s letters demonstrated “no indication of any familiarity on the part of the writer with any branch of information technology.” This is interesting in that it appears as though it might have gone someway to influencing the Commissioner’s decision. 150 pieces of correspondence on a very narrow subject might normally be something that would be expected to fall within the scope of s.14(1), even more so when the information is routinely published on the Council’s website.

Another part of the Commissioner’s decision that is of interest is what the Commissioner had to say at paragraph 42 of the Decision Notice which stated:

The council is at risk of misleading itself in regarding the complainant as vexatious and going on to conclude that therefore his information requests are vexatious

The FOIA talks about a request as being vexatious and not a requestor and this is confirmed through a long line of decisions from the Commissioner and Tribunal. A requestor’s previous contact with a public authority can be considered, but only in determining that the request is vexatious. This is a very real danger for all public authorities when they are dealing with information requests from people who they have regular contact with.

The Commissioner also considered Thackeray v Information Commissioner and said “that the complainant’s dogged pursuit of a line of enquiry should not be lightly characterised as an obsessive campaign of harassment.”

There is a fine line between presistently enquiring into something and harassing the authority. This is an important distinction because if it does not exist someone investigating something which the public interest clearly demands the continued investigation of then they would be hindered as their requests would become vexatious and this would give the public authority an absolute way of avoiding embarrassing or damaging matters from being investigated.

The Commissioner’s decision in this case seems to be, to me anyway, an interesting one. I’m not prepared in this case to say whether I agree or disagree with the Commissioner’s decision as I’m not aware of the full facts. Clearly the ICO has seen something in this case that sets it apart from other similar cases. Perhaps the complainant’s lack of IT skills and access had something to do with it, perhaps there is something in the submissions which means it wouldn’t be in the public interest for the Commissioner to find that the request was vexatious. There is no public interest test built into s.14 of the FOIA, but the case law in this area does certainly suggest that public interest considerations have been taken into account when defining the scope of s.14.

I’m not going to criticise Leicester City Council over this case as I have only the Commissioner’s decision to consider. However, it will be interesting to see whether the Council appeals this decision to the Tribunal.

Justice Committee’s FOIA conclusions – Part 2

Yesterday the Justice Committee published its report into the Freedom of Information Act 2000 (FOIA) following its post-legislative scrutiny of the Act. I have already looked at the committees report insofar as it relates to the big FOI battles and in this post will look at the recommendations of the Committee that will strengthen the Act. You can read the first blog post here.

One of the big frustrations about the way in which the FOIA operates currently is the way in which public authorities can kick requests into the long grass. Under s.10(1) of the FOIA public authorities must respond promptly to a request and no later than 20 working days following its receipt. There is an exception to this time limit provided for in s.10(3) of the FOIA which means where public authorities are having to consider the public interest they can take such time as is reasonable in the circumstances. This has come to be known as the “Public interest extension”. There is no upper limit on this and public authorities can (and do) take months to provide a response to a request. The Committee has dealt with this point in its report by recommending that the current good practice guidance of the Commissioner be put into statute. In essence this would mean that a public authority could only extend the initial 20 working day deadline by a further 20 working days to consider the public interest test. Any further delay would only be permissible where a third party has to be consulted. I understand the Committee’s reasoning behind the further extension for third party’s as it can be difficult to get private companies or individuals to respond in a manner that is timely so as to meet the time limits in the FOIA. However, I would want to see other public authorities excluded from such an extension. There is no excuse for another body subject to the Act not to respond promptly when they need to be consulted about a disclosure.

Another area of frustration is the length of time taken to conduct internal reviews. In Scotland, we have had since the introduction of our Freedom of Information legislation a clear 20 working day limit on internal reviews. In the FOIA the only real time frame was the requirement for a prompt determination under the code issue by the Justice Secretary pursuant to s.45 of the Act. The Information Commissioner has issued guidance on internal reviews saying that they should normally be conducted in 20 working days and certainly no longer than 40 working days. However, some authorities have had great difficulty in complying with this good practice guidance and it is clear that a statutory timeframe is needed. So, it is very much welcome that the Committee makes such a recommendation. The Committee said:

It is not acceptable that public authorities are able to kick requests into the long grass by holding interminable internal reviews

The Committee has recommended that a statutory time limit of 20 working days be placed on internal reviews. Disappointingly though they also recommend that this can be extended by a further 20 working days where it is a particularly complex or voluminous request. Putting it on a statutory footing will give the Commissioner some additional “bite” when it comes to dealing with extraordinarily long delays in dealing with internal reviews. It will also provide a clear point at which a s.50 complaint can be made. I would suggest that, as with the current position on the s.10(1) deadline, that a applicant should be notified within the initial 20 working day limit, in writing, when the deadline for a review is being extended. That reflects current good practice of the Commissioner that is frequently ignored by authorities, even those who rarely take longer than 40 working days to consider a review.

Another welcome recommendation in the report is to the time limit on brining a prosecution under s.77 of the Act. It is clear that the current position of a prosecution having to be brought within 6 months of the offence being committed is impractical. Even with the strengthening of the time authorities have to respond to requests and internal reviews the Commissioner would be left with insufficient time to find sufficient evidence to bring such a prosecution. Even in Scotland where there are two clear periods of 20 working days (one each forthe initial response and the internal review) the ineffectiveness of the equivalent provisions has been noted. The Justice Committee has suggested that the offence be made an “either way” offence meaning that the 6 month time limit is no longer an issue. It has also recommended an increase in the maximum penalty from £5,000.

This is important because the Commissioner has said publically a number of times that he has seen evidence of offences being committed under s.77 but has been powerless to do anything about them. The Committee said in its report:

The summary only nature of the section 77 offence means that no one has been prosecuted for destroying or altering disclosable data, despite the Information Commissioner’s Office seeing evidence that such an offence has occurred. We recommend that section 77 be made an either way offence which will remove the limitation period from charging. We also recommend that, where such a charge is heard in the Crown Court, a higher fine than the current £5000 be available to the court. We believe these amendments to the Act will send a clear message to public bodies and individuals contemplating criminal action.

This is a clear message from the committee then to those authorities that engage in criminal activities to avoid answering FOI requests.

I wrote recently, in light of the G4S Olympic shambles, on whether private companies delivering large public sector contracts should be subject to the FOIA in their own right. I concluded that there certainly is a case for large companies carrying out public sector contracts to be covered by the FOIA in their own right making them more accountable to the public. The Committee though does not see the need for such action to be taken and state:

We believe that contracts provide a more practical basis for applying FOI to outsourced services than partial designation of commercial companies under section 5 of the Act, although it may be necessary to use designation powers if contract provisions are not put in place and enforced. We recommend that the Information Commissioner monitors complaints and applications for guidance in this area to him from public authorities.

The committee is satisfied that the current system of placing clauses in contracts to ensure that private companies need to co-operate with public authorities on FOI is sufficient. The power of course is there for partial designation and the Government should not be afraid to use it. The Committee clearly doesn’t rule out entirely the use of s.5 of the Act. The Information Commissioner and the Government should be monitoring the situation closely and be willing to partially designate a private company where problems exist.

One final recommendation made by the Committee that I want to look at is in relation to Disclosure logs and the publication of the names of those making information requests. Currently, no public authority who operates a disclosure log publishes the name of the person who made the request. The Commissioner doesn’t publish the name of applicants in decision notices either (although the Scottish Information Commissioner routinely publishes the names of both parties in decision notices).

There are Data Protection considerations here. Publishing the name of applicants would be considered as processing personal data. The Commissioner doesn’t publish the names of applicants in his decision notices because of Data Protection. The Scottish Information Commissioner doesn’t have any bother, although this might be down to the way in which it is approached. From the outset applicants for a decision under s.47(1) of the Freedom of Information (Scotland) Act 2002 are told of the Scottish Commissioner’s view on publishing names and are given an opportunity to state why they believe their name should not be made public. If the Commissioner hears of no reasons at all it could be said that people have effectively consented to their name being made public as part of the decision notice.

Until there is a statutory basis of such a move public authorities would be well advised not to take such a step so as not to get into bother with the ICO (who regulates data protection as well as the FOIA). It is a complex issue and one that I might devote a future blog post to.

On the whole I am very pleased with the report that has been published by the Justice Select Committee. It is both fair and balanced. It makes it clear that FOI is of a greater benefit than it is cost and I hope that the Government accepts its recommendations. Change to the Act is some way off though. The content of the report will need to be considered by the Ministry of Justice and the Cabinet. I wouldn’t expect to see a Bill making amendments to the Act before early next year and it could be the end of next year before any changes made come into effect. However, this report will certainly make it much harder for the Government to introduced amendments that will weaken the Act and will hopefully make those who continually try to discredit the Act quieten down, for a while anyway.

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

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.

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

Private companies and FOI: The G4S failure

The failure by G4S to meet its contractual obligations over providing security staff for the Olympics has brought into sharp focus its role in providing public services. G4S has a number of public sector contracts including running prisons and being responsible for prisoner transport in a number of areas. There has, in recent days, been a focus on to what extent these private companies are accountable to the public. To what degree can councils and other public bodies hold them to account? How well are they holding them to account?

As the public sector continues to face huge budget cuts and a continued need to save money huge public sector contracts are being offered out to tender and G4S are poised to take many of those contracts. In England and Wales the private sector is becoming more and more involved in the NHS following the passing of the Health and Social Care Act 2012. With these big companies having more and more responsibility for providing services which the public rely on and the State has traditionally provided, these questions of accountability are only going to become greater.

If we can learn one thing from the debacle over Olympic security and the failure of G4S is that proper scrutiny is required. Public bodies (and more importantly the public) should be able to better understand where and how public money is being spent.

There is an argument for these private companies to become directly accountable to the public. The public cannot elect the officers and executives of the companies in the way they elect Council’s and Governments. There must be some other way of holding public bodies to account.

It’s not all that popular, but making private companies accountable to the public through Freedom of Information would be an option. It’s not unheard of though. There are private companies to whom you can request information from that you might not expect. For example, anyone who provides certain NHS services under the relevant National Health Service legislation (currently the National Health Service (Scotland) Act 1978; National Health Service Act 2006 and National Health Service (Wales) Act 2006) is subject to FOI. This currently covers NHS pharmaceutical and Optometry services. In theory this means everyone from the independent pharmacist/optician to the big providers such as Boots and Tesco are covered by the Freedom of Information Act 2000 and Freedom of Information (Scotland) Act 2002. They are only covered in respect of their NHS pharmaceutical and optometry services. You couldn’t, for example, as Tesco what expenses their Chief Executive spent in June 2012 were under FOI (well you could, but as it’s not covered you’re unlikely to get a response).

There are other examples of organisations only being partially covered by the Freedom of Information legislation. The BBC and Channel 4 are two good examples. Both are covered, but not in respect of information held for the purposes of “journalism, art or literature”. Partial cover of an organisation isn’t a problem.

The problem with covering private bodies by FOI is a more technical problem. What would the appropriate limit be under the fee regulations? Would it be £450 or £600? Would it be something different? Would it depend upon who the contract was with? What about the application of fees? Would a private body like G4S be more likely to issue fee notes when the estimated costs exceeded £100? If they were, it might mean they are simply as unaccountable as they are now.

As the way in which public money is spent changes and as the delivery model of public services also changes it is necessary that the principles of accountability and scrutiny move with them. There is certainly a strong argument for bodies providing public services (especially large ones like G4S) to be covered by FOI. The question, in my view, is not a “should they” one, but rather a “how do we” one.

Avon and Somerset Constabulary’s made up costs

So, Avon and Somerset Constabulary have been displaying on their website the cost to them of FOI. Only, it’s all a load of rubbish! The website contains some information as to how the figures have been calculated, but it transpires that the figures used were arrived at during an “informal meeting where no minutes were taken” resulting in there being no recorded information which can be disclosed under the Freedom of Information Act.

In essence we have a public authority putting figures in a prominent place on its website for which it has absolutely no basis. It sounds like all they have done is pulled random figures out of the air and used them to calculate figures for Freedom of Information. The whole idea about transparency is that this facts and figures are put into the public domain and not stuff that you’ve made up sitting round a coffee table one morning/afternoon.

I have replicated below my request in full to Avon and Somerset Constabulary and their response so you can see that I’m not just making it up and it will probably appear on Avon and Somerset Constabulary’s website in due course.

Request

On your website you are currently displaying, in a prominent way, the costs you say you have incurred in answering Freedom of Information requests. In light of that I request the following from Avon and Somerset Constabulary:

(a) Any recorded information held that relates to the actual time spent answering Freedom of Information (FOI) and Environmental Information Requests (EIR) to date in 2012.
(b) Any recorded information that was used to calculate that on average it took Avon and Somerset Constabulary 18 hours to answer a FOI/EIR.
(c) Any recorded information held that relates to the cost per hour of answer FOI and EIR requests to date in 2012.
(d) Any recorded information held that relates to the average cost per hour taken to answer an FOI/EIR request

If for any reason the cost of answering this request would exceed the appropriate limit then I will happily accept the information as it relates to the last 20 requests (starting from 28 March 2012 and working backwards) for Information responded to (inclusive of EIR responses) by Avon and Somerset Constabulary.

Response

Having considered the above request I am unable to provide much of the information that you require as it is not physically recorded and therefore does not fall under the scope of the Act. However in order to provide some explanation you may find the information below to be of interest.

The decision to publish the information referenced in your request and the guide figures used were established at an informal meeting where no minutes were taken and as such there are no records held that can be disclosed under the Freedom of Information Act (FOI).

The only recorded costs are those published on the Constabulary website under the response to a previous FOI question. Please see link for further details:http://avonandsomerset.police.uk/information/foi/QandA_Question.aspx?qid=1653. The figures quoted in that response are in respect of the staff members dedicated to FOI. However, the ‘true’ cost to the organisation is considerably higher when adding in the full resource implication of responding to an FOI request. For example, the costs of other staff identifying and collating information across the Constabulary, in addition to their normal roles, is not included in that figure and that will of course vary depending on the complexity of the question and the ease of the retrieval of the data. Due to the nature and variations within the process in the context of any individual request, these costs are not fully quantified or recorded.

As explained, the information required to respond to your request is not recorded, however, we have conducted a simple review of the last 20 requests received to establish if any contained a reference to the amount of time taken to identify and extract the data. From that sample group, only one response contained a brief note indicating the time spent on trying to establish an answer to the question and that indicated that it was approximately 7 hours.

Charges for FOI requests?

The Freedom of Information Act 2000 (FOIA) is under scrutiny and last night Government plans to change the current fee regulations under the Act were revealed by BBC Newsnight. Unfortunately the exact details of what these plans are, if they exist, not known. However, it is worthwhile looking at the issue of charging for information requests more generally.

Freedom of Information has become a vital tool in our democracy. It allows any person to approach a significant range of bodies that provide public services and ask them for information about the services they provide. Each public authority has a legal obligation to provide the information unless it is exempt from disclosure (and to be exempt there generally has to be a very good reason) and have to do so “promptly”. There is clearly a cost to providing answers to FOI requests and that currently lies with the public authority (although they can charge between £10 and £50 depending on the authority and the estimated cost of compliance). Anecdotally most authorities do not choose to apply a charge when they could legally do so. The reason for that is unknown; indeed it could be many different reasons.

There are some people who make requests for information that serve little or no public benefit at all, whether that be to a small or large section of the population on a local, regional or national basis. Some requests are clearly designed to harass, annoy or disrupt the public authority or are part of an obsessive campaign against the public authority in question. Undoubtedly charging for FOI requests might remove these requests for the public authority (although perhaps not the obsessive ones, some people who make such requests have spent significant amounts of money on litigation as well*). However, there already exists an adequate provision within the FOIA to deal with such requests in the form of s.14 of the FOIA. By applying s.14 to a request it means that the authority does not have to comply with the request (although it may ultimately have to defend its decision to the ICO if the applicant chooses to complain to the ICO about the application of s.14).

Looking at the ICO decision notices issued in just one month (February 2012) all of them which referenced section 14 (14 in total) were found in favour of the public authority. In other words the Commissioner agreed with the authority deeming the request as vexatious. While this is not, by any starch of the imagination, a scientific survey it does though show that if the public authority is correct in deeming a request as vexatious the Commissioner will agree with them.

However, vexatious (or annoying) requests are not the only reason as to why charges might be brought in. The overall burden of FOI has increased on public authorities. The number of requests has steadily increased since the introduction of the FOIA in 2005. It takes time to read the request, to locate the information, to consider it for disclosure, to redact any information that needs redacted and to write the refusal notice where information is withheld (either by redaction or by withholding the entire document). This will involve staff in different parts of the authority and has to be completed alongside other tasks. However, FOI is essential in allowing people to see inside the public authorities that work for them and deliver services for them on their behalf. It allows people to look at the decision-making process and to challenge unfair decisions where the decision-making process has been flawed.

In a time of austerity and cuts it might seem popular to remove the cost of FOI from the public authority by recovering it from the requester (who has already, let’s remember, paid for the information through general taxation) or to remove requests from the authority by placing charges which will discourage people from making a request for information in the first place. However, this will ultimately be bad for democracy.

Those in Government, including the Prime Minister, cite all the information that is currently freely available such as salary information, expenses information and such like. However, this information is only available as a result of FOI. Had the FOIA not been in place this information is highly unlikely to ever have been released. Expenses information has only really been widely published since the scandal over MPs expenses. The public and journalists have driven transparency by requesting information under the FOIA.

There is of course one way that public authorities could reduce the cost of FOI without actually amending the Act and that is to proactively disclose more information earlier. Making websites more accessible and much easier to navigate public authorities could proactively disclose much more information and it could be much easier for the public to locate. Public Authorities are getting much better at this, but some have to be dragged into the age of transparency kicking and screaming the whole way. Far too many authorities are still thinking “why should we publish this” rather than “why should we not publish this”.

What could the effect of fees for FOI requests be? Well, that’s not really something we can know for certain until it’s too late (i.e. until fees are actually introduced). It is not hard to imagine though that people would be discouraged by charges for information. Research conducted by the Office of the Scottish Information Commissioner does back this up. Research conducted by Ipsos MORI for OSIC suggests that 64% of people in Scotland would be discouraged from making a request if they were to be charged for it. There is no reason to suggest that this would not be replicated around the country.

Gone are the days where you hear the information that the Government wants to tell you and in the way it wants you to hear it. Official statistics tend to be quite high level and the devil is, as they say, in the detail. FOI can drill into the high level statistics revealed by the State and get a better idea of what is really going on.

The uncertain nature of FOI requests as well will undoubtedly put people off requesting information. If you knew that you had to pay a fee, even a small fee of say £10, to request information from the Government and all you get back is a refusal notice withholding all of the information you requested would you even bother trying to get the information out of the Government? The answer is: probably not. Even those who were able to afford the fee to make a request wouldn’t want to waste money when they can’t even guarantee a return.

The introduction of fees is a sledge-hammer to crack a nut and should be resisted at all costs. It will significantly diminish information access right for ordinary members of the public and place squarely back into the hands of the State the information that you get to know. In a time of austerity we can’t afford to lose access to rights that allow us to assess the decision-making process.

If you believe that information access rights are important and should be preserved then please sign this petition started by the SaveFOI campaign and consider writing to your MP to raise the issue with the.

*based on decision notices I have read relating to vexatious requests under both the FOIA and FOISA

Should Scotland Care about the Freedom of Information Act 2000?

So, the Government is looking to change the Freedom of Information Act 2000 (FOIA). What does that mean for Scotland? We do have our own FOI legislation in Scotland: the Freedom of Information (Scotland) Act 2002 (FOISA). It provides rights of access to bodies such as the police, the Scottish Government our local authorities and many more organisations who spend public money and have influence over our lives. Should Scottish people really be worried about any changes to the FOIA? Well, aside from ensuring that those in the rest of the UK can access information from public bodies the FOIA does apply to Scotland as well.

Not every public authority who delivers services in Scotland is a “Scottish Public Authority” and therefore subject to the provisions of FOISA. Some examples include: the British Transport Police (who are responsible for policing our railways and railway stations); HMRC (the taxman); the Home Office (immigration, passports etc.); The House of Commons; The House of Lords; the Ministry of Defence and the BBC.

As you can see some big public authorities who carry out a great deal of work in Scotland (some of whom exercise coercive powers) are subject to the provisions of the FOIA rather than FOISA. While the Scottish Government might not, at this stage, be considering major changes to FOISA that will restrict information access rights under that Act the rights of Scots to access information for some public authorities is threatened by an attack on FOI by the UK Government.

BBC Newsnight held a brief debate tonight (5/04/12) on FOI (but after the switch to Newsnight Scotland had occurred) which came off the back of papers they had seen suggesting the Government will seek to introduce a new fee structure to the FOIA. This might mean flat fees for information requests or mean people being asked to pay large sums of money to see information that they should have an absolute right to. It might mean that requests don’t get made that might very well release information that is very much in the public interest. This can be done simply by passing secondary legislation and could very well be done on the side without anyone actually noticing until the new fee regulations come into force. It wouldn’t be the first time that major changes to law have been made by way of regulations without anyone actually noticing.

In essence, this post is all about why Scots should get behind the campaign to save the FOIA. It’s not irrelevant to us even though we have FOISA. FOI might seem like a waste of money or something that’s not very important. It is though. It gives each individual the right to ask public authorities for information and for that information to be given to you unless there is a very good reason not to. Without FOI you can ask but public authorities wouldn’t need any reason other than “we don’t want to” in order to not give it to you. You would have no way of challenging them and forcing them to release the information. Would the MPs expenses scandal ever have come to light without FOI, almost certainly it would not have. That’s just one example of how FOI has benefited the public.

I would urge everyone in the UK, even if you’re in Scotland, to get behind the campaign to Save the FOIA. One thing you can do is sign this petition on the Government’s e-petitions website. The other thing you can do is write to your MP. You can also write to your MP on this excellent website by MySociety.

IPCC v The Information Commissioner

The First Tier Tribunal (Information Rights) has issued a very strongly worded judgment in an appeal by the Independent Police Complaints Commission (IPCC) against the decision of the Information Commissioner.

The decision relates to the application of s.14(1) of the Freedom of Information Act 2000 which provides that a public authority does not need to comply with a request for information made pursuant to the FOIA if the request is repeated or vexatious. It is important to note though that the Act requires the request to be repeated or vexatious and not the person making the request. A person could quite conceivably make two requests to an authority on the one day and have one deemed as vexatious and the other not.

The Tribunal made some important comments in its decision, particularly in the current climate arising out of the post-legislative scrutiny of the FOIA. The Tribunal, quite correctly, said:

Abuse of the right to information under s.1 of FOIA is the most dangerous enemy of the continuing exercise of that right for legitimate purposes. It damages FOIA and the vital rights that it enacted in the public perception.

Those who use FOIA rights to harass public authorities and to continue a campaign going against a particular authority (or group of authorities) damage the information access rights that have become so vital to our democracy. It frustrates the public authority which can in turn lead to a culture against FOIA in an authority (which can be seen in some of the recent comments and submissions surrounding the post-legislative scrutiny of the FOIA). Not only that, but it can lead to a tightening up of the Act which may have a damaging effect on those who use the rights responsibly. It does come to mind that perhaps the Tribunal has had the post-legislative scrutiny of the Act in its mind when writing this decision.

The Tribunal continued:

In our view, the ICO and the Tribunal should have no hesitation in upholding public authorities which invoke s.14(1) in answer to grossly excessive or ill – intentioned requests

The frustration felt by public authorities who deem requests to be vexatious, and are then subsequently told by the ICO or the Tribunal to deal with the request is quite understandable. Some authorities are perhaps not using the s.14(1) exemption as much as they ought to while others are perhaps using it inappropriately. While it is important that Public Authorities feel confident in using the s.14(1) exemption and that the ICO and Tribunal will support them it must not get to the point where public authorities feel over-confident in using the exemption because the ICO and the Tribunal will always support them.

It has always been a fundamental principle of FOI that the requester and their reasons are largely irrelevant in the consideration of a request for information. Anything which harms that in turn harms FOI. Some people may make repeated and frequent requests to a public authority, but that does not mean that those requests should automatically be exempt by virtue of s.14(1): the s.14(1) exemption must not become a way for authorities to keep matters that ought to be released secret. In the context of this decision the Tribunal was clearly correct to hold that the requests were vexatious. Making roughly one request every month for two years to one authority, some of which are wide and indiscriminate in nature, is clearly an abuse of the FOIA and the IPCC were entirely correct in applying s.14(1) to Mr Andrew’s requests. It is hard to imagine a legitimate purpose that would result in such a large volume of requests being made to a single authority.

It is good that the Tribunal issued such a strongly worded judgment in this case and hopefully it will begin to go some way to alleviating fears mong authorities in relation to being unable to deal with people who place a significant burden on the authority with what can on occasions appear to be a complete obsession with the authority. One only needs to look at the WhatDoTheyKnow website to see examples of people who have an unhealthy obsession with uncovering corruption that really doesn’t exist (as an example of vexatious requests in action).