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

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.