Ed Hammond argues that changes to the existing Freedom of Information regime could fatally flaw the openness and transparency of public authorities in the UK.
The House of Commons Justice Select Committee’s post-legislative scrutiny of the Freedom of Information Act has seen a number of witnesses and members of the Committee positing some possibilities for the future of Freedom of Information (FOI) that many will find troubling. This includes the risk that charges for requests might be introduced, or that requests from different kinds of requesters could be dealt with in different ways. There are also suggestions arising from the contention that a “chilling effect” might exist whereby civil servants might be unwilling to provide ministers with full and frank advice if they know that this advice might be subject to a successful FOI request at some point in the future.
These three suggestions in particular have caused some substantial worry amongst many campaigners, and when the Centre for Public Scrutiny gave oral evidence to the Justice Committee on 14 May we tried to tackle two of them. In this post I’ll explain why all three suggestions lack basis in fact – and why accepting any of them would fatally flaw both the FOI regime, and the future cause of openness and transparency in this country.
Charging is an emotive issue. Proponents claim that FOI requests cost money – that they constitute a burden on resources in public authorities, and that because they are free, journalists in particular embark on speculative “fishing expedition” (particularly to local authorities) to try to get hold of information that might prove to be useful or interesting to their work. It is true that requests cost money to process. However, putting in place a nugatory charge would fatally flaw one of the most fundamental principles of the Act: the enshrinement of the public’s right to know, the right to access information about decisions made in their name, and money spent on their behalf. Furthermore we, and other witnesses – those involved in servicing FOI requests in local authorities – felt that a charging regime would cost a substantial amount to administer, rendering such an approach of minimal positive financial impact.
Motive and requester blindness is another fundamental principle sitting behind the FOI regime. Public authorities must treat all requesters the same, and must not ask the reason why they are seeking the information. The motive of an individual should, we consider, be irrelevant to whether the information should be public or not. The focus of any disagreement on release should be on the data itself, not a subjective view of the mindset of the person asking for it.
This seems an obvious point, difficult to counter, but it has raised its head in the context of public authorities (again, including many local authorities) receiving requests from commercial providers for commercially sensitive information. This may include the content of rival bids, where the requester has been unsuccessful in gaining a contract. The feeling could be that it would harm the level playing field of procurement processes.
This is a valid concern, but it would be difficult to see how getting rid of requester and motive blindness would resolve it. Employees of companies could well get hold of this information as private citizens. Journalists could also circumvent any attempts to treat them differently through similar means. Removing the blindness principle was also seen as a way of dealing with “vexatious requesters”. But for us, the idea of moving the test of vexatiousness from the substance of the request to the personality of the requester is a dangerous one that takes no account of the need to look at individual cases separately and on their own merits.
Finally, the charge of the “chilling effect” is arguably one of the more pernicious that has been lain at the door of the Freedom of Information Act in recent years. Sir Gus O’Donnell and Jack Straw gave robust evidence to the committee that civil servants, in particular, would be less inclined to provide accurate advice to ministers if they felt that this advice could be published and presumably cause embarrassment to ministers. It was suggested that this could drive such advice-giving into more informal settings. Firstly, this suggests that civil servants consider short-term political embarrassment for ministers as being an overriding factor, more important than their duty to provide accurate and impartial advice.
Secondly, it suggests that, rather than tackle the mindset of secrecy that this suggests exists, we should design our democratic systems to be complicit with the idea that there is a wide swathe of official information that the public should not see purely because it might provide political capital to the opponents of governing parties. There is already a more than adequate and robust means to make these judgments in individual cases through the public interest test in the Act, and in extremis the government has the right to use the ministerial veto which is a step that should be subject to public debate and scrutiny.
Freedom of information being difficult, or inconvenient, expensive, or all three, is not a reason to seek to limit or curtail its role. It speaks of a culture where FOI is seen as a compliance issue, rather than as an issue about the fundamental principles both of democracy and good governance. We are sure campaigners will eagerly await the findings of the Committee in the hope that they will not provide cover for the government to roll back the progress on transparency that has been made in the seven years since the Act came into force.
Note: This article gives the views of the author, and not the position of the British Politics and Policy blog, nor of the London School of Economics. Please read our comments policy before posting.
Ed Hammond is the Research and Information Manager for the Centre for Public Scrutiny. His recent work includes research on community budgets, performance management, police and crime panels, work programming and the production and content of O&S annual reports.
We received the below reply from FSA regarding our FOI request which of course was declined BUT below the FSA makes some shocking statements.
Freedom of Information firstname.lastname@example.org
Oct 25. 2012
Our ref: FOI2723
Dear Mr Rea & Mr de Caluwe Hemelrijk
Freedom of Information: Right to know request
Thank you for your request under the Freedom of Information Act 2000 (the Act) for the following information..
“Copies of all complaints filed against RBS and or RBS employees from 2010 – 2012.”
For your information, the FSA as an organisation does not deal with consumer complaints and any such enquirer that expresses dissatisfaction is referred to the Financial Ombudsman Service. You may find it helpful to visit the FOS website (http://www.financial-ombudsman.org.uk/) for more information. It is therefore possible that we may hold a record of such enquiries.
Your request has now been considered. I am sorry to inform you that we estimate that to comply with your request in full would exceed the 18 hour time limit. This is because the information requested is likely to be spread across a number of files and the information is not indexed in such a way to identify whether it is a complaint or an enquiry about the firm and we would need to review and assess all of the files that we hold to extract the information relevant to your request, and therefore the following exemption applies.
Section 12 (Costs of compliance exceeds appropriate limit)
In order to extract the information we would need to consider and review all the records that we hold in our Contact Centre for Royal Bank of Scotland (“RBS”) for the period quoted (2010 to 8 October 2012 – the date of receipt of your request) to establish whether they are complaints. This is because we are not able to readily identify those items that may be a complaint or an enquiry without reviewing the individual correspondence. .
You should also note that under the document retention policy for the Contact Centre copies of electronic documents are held for 7 years and hard copy documents for twelve months. We would also need to contact other areas of the FSA that may hold information relevant to your request.
For the period from 1 January 2010 to 8 October 2012 (the date of receipt of your request) we hold approximately 4,000 electronic and papers records in our Contact Centre in relation to RBS. We would need to review each of these records to establish whether or not they fall within the scope of your request. In this context, we conservatively estimate that it would take well in excess of 18 hours to undertake this exercise and exceed the £450 limit. Since our policy is not to divert our resources from our regulatory functions in order to meet requests under the Act in excess of the cost limit, we will not be able to carry out this exercise.
In reaching the conclusion that your request exceeds the appropriate cost limit we have not considered whether any other exemptions apply. However, you should be aware that any information that the FSA has received from or about a firm is likely to be prohibited from disclosure under section 348 of the Financial Services and Markets Act 2000 as it would be confidential information received for the purposes of carrying out our regulatory functions and supervision of those firms and individuals. Such information is therefore likely to be exempt from the Act by virtue of section 44 (prohibitions on disclosure) of the Act. Other exemptions under the Act may also apply to that material.
When we refuse a request because the appropriate limit has been exceeded, it is our general policy to provide advice and assistance to the applicant to indicate how the request could be refined or limited to come within the cost limit. In this case, as explained above, due to the volume of information that we hold across the FSA, we are unable to assist you with providing a way in which to refine your request in order to obtain the information you are interested in. Any refinement that we suggest is likely to exceed the statutory time limit.
If you have any queries or are unhappy with the decision made in relation to your request you have the right to request an internal review. If you wish to exercise this right, you should contact us within three months of the date of this letter.
If you are not content with the outcome of the internal review, you also have a right of appeal to the Information Commissioner at:
Information Commissioner’s Office
Telephone: 01625 545 700
Sandra Collins | Associate – Information Access Team | Finance and Operations Division
Financial Services Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS
Tel: 020 7066 7120
Yes, I meant it in the sense of “gave evidence robustly” – as I say, I don’t think there is an iota of truth behind the “chilling effect” argument.
I think the statement that “O’Donnell and Jack Straw gave robust evidence to the committee” needs revision. They blustered robustly, but the evidence does not support their assertions. See the supplementary evidence provided to the Justice Select Committee by the Campaign for Freedom of Information, which thoroughly debunks O’Donnell and Straw’s claims: