Freedom of Information at 10: a debate

A panel discussion on the Freedom of Information Act after 10 years, held at City University, London.

As Chair Roy Greenslade points out, we’re meeting in the shadow of Press Gazette being told that they should no longer make FOI requests to the Met Police, because they are being “vexatious”.

The Journalists

Professor Heather Brooke was surprised that the public records she was used to using in the US just weren’t available in the UK. It slowly dawned on her that they had other ways of getting the information – some legitimate and some less so. It’s an advantage to any democracy to give the public access to information. The information is collected for us, so we should have access to the fruits of our taxes.

The police really are behind the ball in adapting to the information age. They’re still very much of the “we’ll tell you what you need to know’ mindset. There’s been progress over the last 10 years – but not everywhere.

Martin Rosenbaum wants to defend the UK now. The US system is even slower than the UK’s FOI process. Roy counters with the idea that more is freely available in the US, compared to here. How would Martin score us now? 5/10. It’s been the same for years, but initially it was poor bodies and excellent bodies – and now we’re moving to more of an average.

We haven’t got everything we want. We don’t get the sort of internal communications we hoped to see, for example. We’ve also seen some bodies – like the police – become less reliable and efficient than they were. Some have gone the other way – like the Department of Health.

Tom Felle thinks that the Irish FOI came about because of the amount of corruption that was seen in the country. It worked so well that the government have neutered it. Looking globally, he’s seen two versions of FOI. There’s the public access to information that effects them, and that’s good. But Britain invented official secrets and public bodies needed to become more open. But anything that people at a senior level can delay, deny or slow down, they will. After 10 years, the culture has not changed. In countries with FOI for decades – the culture at that level does not change.

The FOI Commissioner

Chris Graham, FOI Commissioner considers himself a “glass half-full” man – and 5/10 is half full. We’re seeing many more datasets freely published than ever before, from MOT failure rates, to senior civil servants’ salaries. It’s not on to say that all local authorities have to do is say no. Already this year there have been 1000 decision notices from his office, and many are dealt within three month and six month time periods. Remember that these are the most controversial issues.

It’s working and it’s working well – but you have to keep pushing. He could do with more resources to police the act. If authorities were more nervous of his office getting to them, they’d have less motivation to game the system. He’d rather report directly to Parliament, rather than being a subset of the Ministry of Justice – because that’s got a lot of other things to deal with.

His headcount nudges 400, split between data protection and freedom of information.

Martin: Chris has achieved something very important: the speeding up of the appeals system. Delay is not as bad as it was previously. There was one complaint that Martin made that took four years to process! But there’s still a lot of delay within the system. If someone had said at the beginning that 92% of appeals were dealt with in six months, they would not have been happy. These are often the important, urgent ones. In practice, the authorities ignore the “promptness” requirement, and just look at the ultimate deadlines.

We need a culture change – that’s in accordance with the legislation – to make FOI prompt.

Lazy Journalism?

Are journalists getting lazy because they just slam in FOIs? Sure, says Tom. Biscuit FOIs you see in local journalism don’t add to our understanding of local government. But he doesn’t have sympathy with local government who claim that they’re overwhelmed with requests. We should have a culture where many of those request never hog to FOI – they’re just answered by the press office.

The media and public bodies should come together more to discuss this issues. If they government bodies could be persuaded to publish more online routinely, there would be less need for requests. And too many authorities are forcing people to go through FOI when it shouldn’t be needed. They’re just not afraid enough of Chris’s office, in the same way they are over data protection. Local authorities can quote chapter and verse on data protection, but roll their eyes at FOI. They see it as something extra – which is bizarre. They work for us – that’s their job.

Chris counters with a list of the enforcement action they can take against recalcitrant bodies. He was taxed on Newsnight about it. The Department of Education was pushed into special measures, for example, and had answered Newsnight‘s request satisfactorily as a result. The Department of Transport didn’t want to publish the HS2 study – and that’s being fought through the courts right now.

There are exemptions for the Queen, and the two heirs to the throne – but that’s it.

Heather suggests that no lazy journalist will make an FOI request – because it takes so much work. That’s why she teaches it to students interested in long-form investigations. It’s a form of civic teaching, as we try to figure out how these bureaucracies work.

It’s so short-sighted for local authorities to be hostile. This is a legitimate way of releasing information – that goes through a safe-guarding process. Without it, stories still come up, but in an unregulated, illegitimate way. Stories come with a spin, because they’re leaked – and leaked with an agenda.

Time for an extension of FOI?

Roy asks if FOI should be extended to new bodies?

Chris: What do we do about services delivered on behalf of the public by private contractors or suppliers? There are services which were part of FOI and now aren’t, because they’ve been contracted out.

There’s work being done on model contract clauses to adreess that. Companies seem to be quite keen to play by the rules – as long as they know what the rules are. It’s good to see Network Rail being broughti into FOI.

Centres of FOI Impunity

Heather wants to know about enforcement – there seem to be centres of impunity developing – the Met Police, the Cabinet Office and Ministry of Justice.

Chris: Why do you say the Met? I saw Roy’s story – is that coming my way? They might like to think they can act with impunity, but they can’t. We’ve made them publish information again and again. It took a year to get the Cabinet Office to incorporate our guidance. Using your Gmail account is a bloody silly thing to do – it’s not secure – but it won’t allow you to escape FOI any more.

Martin: In some cases ICO monitoring has improved FOI performance – including the BBC. But there’s no evidence that the Cabinet Office has responded in the same way. They should be setting a good example, and they’re setting the worst possible example.

Chris: To be fair to them, they have to decide how to deal with the papers of the previous administration in power, and have to go to Tony Blair and Gordon Brown. It’s not a surprise the most senior bodies take longer – they’re dealing with the knottiest issues.

Tom: I’m not sure I agree. They’ve had ten years to absorb some sense of responsibility. Government often claims that they have terrible decisions to make, and we’d understand if only we saw – but they won’t tell us what they are. It’s time for the Cabinet Office to start treating the public with respect.

Governments pushing back against FOI

Chris: You can’t accuse this government of not being in favour of open data. They’ve published a lot of it. But there are arguments for and against publication to be discussed – and it’s the tricky ones that take time and come to the Information Commissioner. We’re hearing about how wonderful Ireland is – but you have to pay there. We don’t have fees, and you do have them in other countries. Around the world governments are getting fed up with this, and pushing back. In Australia, they’ve just snatched back FOI in a coup.

Roy: You get away with it in Australia, because it’s not a mass interest concern. It’s only journalists…

Heather: I believe it’s campaigners, actually.

Tom: Journalists are only 1 in 10 of the requests – but they’re the difficult ones that people don’t want to answer.

Should data protection and FOI be seperated?

Chris: It’s very useful to have one office to make both decisions: very often there’s a data protection angle of FOI. If you split them, one decisions becomes tow, and you’ll end up in the courts to resolve them.

Roy: Ironically, one of the biggest users of data protection are newspaper publishers.

Chris: The one thing everyone “knows” about data protection – that you can’t tell anything – is wrong.

Best uses of FOI?

• Heather’s work on the MP’s expense scandal
• Access to inspection results on old people’s homes
• Tom’s revelation of Bertie Ahern’s expenditure on make-up
• Failure rates of models of cars at MOT
• The FOI Directory account and website are worth tracking
• David Higgerson blogs about FOI successes

But Chris is keen to see the end of the “having a laugh” sort of FOI request from journalists – like contingency plans for dragon attacks – because every single one of them builds the case that authorities will make to stop doing FOI requests – or to do away with it entirely.

Tom suggests that “commercial sensitivity” is being over-used as a reason for redactions of disclosures. Martin adds that redaction is just a form of partial refusal and can be appealed through the system. Chris points out that there are genuine reasons for reductions – including protecting the identity or personal information of uninvolved people which are in the documents.

Heather has always been annoyed that politicians get to decide what is a worthy request and hat isn’t. It’s becoming an anti-FOI witch hunt. The solution is just to routinely publish more non-sensitive information. It’s odd that bodies claim that they don’t have time to answer FOI requests but they spew out information no-one wants all the time. The ration of Thames Valley Police press officers to FOI officers was 27 to 1…