Justice Committee FOI Evidence: A Quick Guide

The Justice Committee has received 112 submissions providing evidence on which to base their post-legislative scrutiny of the FOI Act. Twenty-five per cent of these are from universities, or bodies representing them, making HE by far the most vocal sector.

A number of common themes have emerged. One point, made by the Information Commissioner, among others, was that public authorities should be allowed to reject requests on the grounds that they are “frivolous” as well as that they are “vexatious”. This would allow them to bin queries which, while not calculated to harass or annoy the Council, are simply very silly. Bad news for the “Concerned Citizen” who caught Leicester City Council napping when he asked what planned to do to fight the zombie menace.

Many public authorities complained about the cost of dealing with FOI requests, and more generally, the costs that currently ‘don’t count’. Requests are cost-barred if the price of answering them would be more than £600 for central government and £450 for everyone else . Staff time is valued at £25 per hour. Time spent considering exemptions or redacting certain information does not count towards the total.  Leeds Council said  that this results in underestimating of the real cost of FOI, not least because an hour of staff time costs them more than £25.

The Ministry of Justice, and the NHS Foundation Trust Network, are two among a number of public authorities who worry about who benefits from FOI. In some cases, they say, commercial organisations use the Act to gain a competitive advantage. This means that the FOI Act is effectively subsidising certain businesses- which they claim was not Parliament’s intention when passing the Act 12 years ago.

Oral evidence by journalists the following week- Martin Rosenbaum, Doug Wills, David Higgerson and David Henke – raised a number of points relating to their experience as requesters. Although the Act had caused a “sea change” in access to information, it has not created a culture of openness among public authorities. Despite apparent commitment to FOI, every so often, Martin Rosenbaum said, “the mask slips” and the true face of government emerges. The Home Office have even accidentally sent him an email discussing the department’s desire to keep certain documents secret, because they show that there is a lack of evidence to support Home Office drugs policy.

The four said Act has altered journalistic practice. It has encouraged whistle blowers, because they now do not need to hand over documents to journalists. Instead, they can simply recommend a FOI request. Additionally, some stories now begin with a request made by a member of the public. This means that more voices are heard in the public debate. But it doesn’t always improve the quality of that debate. On the contrary, sometimes it “improves the quality of people’s prejudices”, by allowing them to feed their hunger for information only on their personal favourite titbits.  They also noted the hypocrisy of organisations that complain about request volume, and also complain about requests from journalists.  Journalistic use of FOI, they said, is efficient:  the information extracted is published and the media’s entire audience, instead of just one person, can be informed.

We submitted oral, as well as written, evidence to the Justice Committee based on our different research projects over the years. We reiterated our conclusions that the Freedom of Information Act has succeeded in its core objectives of promoting the transparency and accountability of public bodies. However, the Act was also sold as a mechanism that would increase public trust and participation, improve the quality of decision making and improve public understanding of the political process. It is almost impossible to measure whether or not it has delivered on these promises and moreover, these policy goals are somewhat out of FOI’s reach (see our previous post on the problem of measuring, let alone increasing public trust, for instance).  We also stressed the problems of measuring ‘concentrated costs’ of FOI against ‘dispersed ‘benefits’, which inherently skews the discussion. You can see this reflected in the submissions themselves, few of which attempt to quantify FOI’s benefits in monetary terms, but are quick to try calculate its costs.

Jim Amos, drawing on his experience in researching and also training FOI, also asked FOI officers to help themselves, adding a pragmatic note to the review’s proceedings. The way to make sure the Act works well is not necessarily amendments and fees, but “robust professionalism”. Public authorities should make use of the exemptions and the cost limits available to them. What they should not do is work very hard to fulfil unreasonable requests, and then complain about the burden involved in doing so. Whatever the results of this post-legislative scrutiny, this advice ought to be heeded.

Holy see?

As  noted in our Monthly Update, an English priest has recently
suggested that the Vatican should consider implementing a Freedom of Information (FOI) law.

Father Alexander Lucie-Smith raises an intriguing, but sadly fanciful prospect. FOI is fundamentally a tool for citizens to hold their democratically-elected officials to account. Setting aside the obvious problems with that sentence vis-à-vis the Vatican, in practical terms the core issue would be one of administration.

Lucie-Smith writes that FOI legislation would help dispel the myths and conspiracy theories surrounding the Catholic Church and make it “harder to claim that the Vatican was addicted to cover-up.” As those making these claims are from outside of the Vatican state, our hypothetical “VFOI” would need to be similar to the UK law and allow non-citizens to make requests. Yet while the rest of the world doesn’t care enough about Britain to inundate our public servants with FOI requests, the Catholic Church has a somewhat larger ‘fan base’ with an estimated 1.181 billion Catholics worldwide.

The Constitution Unit estimates that local government in England received approximately 196,000 FOI requests last year. Obviously many of those came from the same source, but as a very (very) crude calculation, that is equivalent to 0.4% of the population of England each sending a request. If 0.4% of Catholics were to contact the Vatican, that would amount to 4,724,000 information requests a year!  Of course, that’s not including groups such as HIV/AIDS awareness campaigners, human rights activists, in addition to the contingent of conspiracy theorists, militant atheists, and countless others who would no doubt flood their inbox with questions, legitimate and vexatious. In short, due to the sheer scale, “VFOI” would be a massive cost sink and a bureaucratic nightmare.

The Vatican state is the smallest in the world, with a grand total of 832 citizens, all of which are in the employ of the state in one manner or another. Consequently, the only citizens to hold officials to account are other officials, and so any sort of “domestic” public disclosure would amount to “whistleblowing”, such as the current – most likely politically motivated – “Vatileaks” scandal. It could be that what the Vatican needs is not Freedom of Information, but something closer to the Public Interest Disclosure Act which affords protection to whistleblowers from their employers, subject to a public interest test. However, in a state without a public, what is the public interest?

FOI: university challenged

Running alongside our current project looking at FOI and universities, is the Justice Committee’s own review into the impact of FOI on the UK. This has presented us with some good opportunities – firstly to showcase our research into FOI over the last 6 years, and secondly, giving us the chance to see what public bodies think of FOI via their submissions to the committee.

The Higher Education sector is well-represented in the 112 submissions the committee received. Well, over represented if anything. Almost 200,000 FOI requests a year are received by local government (according to our estimates), and yet only three councils (Leeds, Birmingham and Kent) made submissions. Universities, or their representative bodies, make up a quarter of all submissions to the committee, but receive vastly fewer requests, looking at the latest data.

While most public authorities responding to the call for evidence – including universities – focussed on common themes (vexatious requests; fees and charging; commercial/media use), some universities were unique in calling for them to be taken out of FOI altogether (Durham, Essex, Reading), or at least have specific exemptions applied to some of its activities (colloquially known as the ‘BBC-style’). The latter has been attempted through an amendment to the current Protection of Freedoms Bill. Universities UK pushed for an exemption within section 22 of the Act, to protect research findings from ‘premature’ publication through FOI. (The amendment was based on a similar clause in the Scottish FOI Act 2002). The amendment failed to attract government support.

Our project, through speaking to academics, university managers and officials, FOI officers, bloggers, requesters, media and open-data enthusiasts, has uncovered some interesting ideas about what it means to conduct research in the public domain and the pressure on universities to remain ‘competitive’. We’re also uncovering what requesters want from universities and academics, and how this might inform the place of universities within the ‘public sector’.

Looking in more detail at the submissions made by the Higher Education sector to the committee, their changing funding arrangements appear crucial to the way they view FOI.

FOI applies to all information ‘held’ by the University, irrespective of the source of funding for its activities, whether those be research programmes, teaching, or innovation. Universities make the argument that this can cause tension in their relationship with private funders when negotiating contracts and during the course of the research itself. They fear that this could lead to a “…reduction in the amount of private funding received at a time when the amount of public money being allocated to higher education has been reduced dramatically.”(University of Bristol submission)

Further, some Universities outlined the falling percentage of their funding or turnover that is derived from public sources and linked this to the appropriateness of being covered by FOI. The 1994 Group noted that public funds for teaching this year would only contribute 22 per cent to overall teaching income: “Given this, it may be more appropriate in future for some areas of higher education activity such as teaching to be exempted from FOIA legislation.”

Private providers in the HE market also constitute a problem – in receipt of public funds through student loans, yet not covered by FOI.

Competition can only be fair and effective if all institutions are operating on a level playing field, subject to the same regulations. The question of how the FOIA should be applied to a more diverse set of higher education providers needs resolving as a matter of urgency.” (UUK submission)

Where the Justice Committee will go on FOI is anyone’s guess. But the HE sector was successful in gaining an opportunity to give oral evidence to the Committee, taking one of the coveted four slots.

The sector’s hopes to change the way they’re covered by FOI (in some way) is running concurrently to the many open-data initiatives of academic disciplines and research councils. The other main area of concern for universities regarding FOI – access to research data – is something we’re continuing to investigate. In the meantime, you can read summaries of some other notable submissions to the Justice Committee, and watch Ben Worthy, Robert Hazell and Jim Amos give their evidence to the Committee on our website.

Constitution Unit gives evidence to Justice Committee scrutinising FOIA

Robert Hazell and Ben Worthy both appeared before the House of Commons Justice Committee today. They gave expert evidence as part of the post-legislative scrutiny of the Freedom of Information Act (2000).

The Constitution Unit has led a number of groundbreaking research projects on the impact of the FOI Act on central and local government, and conducted surveys into the requester and provider experience.

Further Information

 

NHS Reform Under the X-Ray

“The person I trust most for my health, number one, is my GP. And I’ve always seen him or her as a kind of a gateway to any other services. And it’s his judgment, ultimately, or her judgment, that I would back.”  That’s what Eric Pickles told The Telegraph last Saturday. There’s something bucolic about the government’s attempt to put commissioning power into the hands of local GPs, and take it away from “faceless bureaucrats”  in the Primary Care Trusts; it comes from the England of Cameron’s mother, the Berkshire Magistrate, from John Major’s England of “cricket grounds, warm beer, green suburbs, dog lovers, and old maids cycling to holy communion”.  But, the government are also, as Hague once put it, “Thatcher’s children”. Andrew Lansley wants to empower patients, and by empower them, he means increase their choices, and by increase their choices, he means create a market, and by create a market, he means promote efficiency and cut NHS costs, and by cut NHS costs he means offset the effect of the £20 billion of savings required by 2015. 

The leaked account of the Strategic Risk Register, which lists the potential pitfalls of the reforms, suggests it challenges both horns of the government’s approach. GPs, it is alleged to say, may lack the experience and skills to manage funds efficiently. Equally, the introduction of a market may lead to private companies failing to do more with less, and simply siphoning away public funds in profit. Consequently, the NHS could eventually prove “unaffordable”.If this is an accurate report of the contents of the Strategic Risk Register – if it seriously moots the possibility of the reforms rendering the National Health Service prohibitively expensive – then it is not surprising that Andrew Lansley does not want to publish the report until after the Health and Social Care Bill is enacted.

The government is appealing an Information Commission order that they should release the full document. The Department of Health has pointed out that Risk Registers express the dangers of policies in “worst case” scenario terms and so can be open to misinterpretation if read out of context. It suggests that Risk Registers in their current form could not be produced if they were subject to FOI requests, for fear of giving the public the wrong impression.This is a version of the chilling effect argument, which Blair put like this:

“Governments, like any other organisations, need to be able to debate, discuss and decide issues with a reasonable level of confidentiality. This is not mildly important. It is of essence. Without the confidentiality, people are inhibited and the consideration of options is limited in a way that isn’t conducive to good decision-making. In every system that goes down this path [FOI] what happens is that people watch what they put in writing and talk without committing to paper…’ 

The Information Commissioner recognises the danger of FOI causing a chilling effect.  However, in this case it emphasised the fact that, whatever information is released vis-a-vis health reform, officials will still be required to be fully frank when they produce Risk Registers. The Commissioner felt that publishing information about NHS reform might make officials less forthright on that particular subject during the current process, but that there would not be a chilling effect on the record of risk across the policy spectrum.   

The appeal will be heard by the Information Tribunal on 5 and 6 March, which may or may not be before the third reading of the Health Bill in the House of Lords – the last chance to substantially amend it. However, Labour propose to discuss the publication of the Risk Register  in an opposition day debate on 22 February. It is possible that this move will prove more effective than the Freedom of Information Act in getting the Strategic Risk Register into the public domain.

FOI and Accountability?

Does freedom of Information increase accountability? Officials think that it does not, according to a survey by the Ministry of Justice recently mentioned in the Guardian.  The key word here is think. They think it doesn’t because they don’t directly see its effects.

Officials don’t notice FOI because often it works with other accountability mechanisms, especially the  media or NGOs (see Voices for Libraries on going campaign).  FOI rarely hunts alone and its use is lost amid lots of other questions, communications and research. A long running parliamentary investigation into extraordinary rendition , for example, used FOI in the UK and the US alongside Parliamentary Questions to show that a little more was known about the mysterious flights than was admitted at the time.

Officials also don’t notice it because it is not always high profile or immediate. For every MPs’ expenses  scandal or list of visitors to Chequers there is the patient, often slow, digging up and fitting together of pieces of a jigsaw. Chris Ames has spent many years exposing bit-by-bit the inner workings of government as it prepared for the War in Iraq. His work has raised many questions about the defences made by the politicians involved.  At local level there are many groups using it to pursue all sorts of important issues that may escape officials’ radars, allotments being a good example.

FOI does make government more accountability but not everyone sees it.  Sometimes it is not the kind of accountability politicians or officials want. Often it is for unexpected things. But that doesn’t mean it isn’t happening.

Why won’t expenses go away?

The point of transparency, according to the theorists, is two-fold:  You’ll be judged for what’s exposed and – only when effective sanctions or accountability mechanisms exist for bad behaviour – you won’t want to continue to act badly. Sounds easy, right?

The problem, in the real world at least, is the definitions in the concept above. Who constitutes the ‘judge’ of what’s exposed? Who decides what sanctions are appropriate? What’s riskier for an actor – attempting to hide behaviour or taking the punishment a ’judge’ hands out?

Looking at some news stories over the last few weeks, the FOI ‘expenses’ fad is more than a fad after all  – FOI requests for expenses continue to be made, and in tandem with proactive publication, hundreds of column inches  continue to be filled by stories about expenses.

And the reason this is still happening is that it continues to be unclear (and therefore newsworthy) about what any expenses system is ‘supposed’ to look like. The goal posts keep shifting – what was acceptable before the banking (or indeed the MPs’ expenses crises) isn’t necessarily ok now, though of course, it could one day be again. Where the real accountability lies is often not with the headlines in the media, but by the structures already in place in the system. Transparency’s two benefits are by no means a given.

In the context of increasing student fees and a decrease in the teaching budget, the expenses of university vice-chancellors this week, investigated by the Independent on Sunday, makes the perfect story. The expenses “cover worldwide travel and lavish entertaining” according to the paper, while the universities argue that “the expenses were largely run up on official business” and they insisted they had “robust mechanisms to weed out frivolous claims.”

Comments on the expenses by union and student leaders did not call for the resignation of any vice-chancellors. Usman Ali, vice president of the National Union of Students, argued “Universities must listen to students’ unions and make their expenses and pay structures transparent to stop abuses.” But without stronger sanctions, and keeping in mind the theory above, what can listening and more transparency do to actually instigate the kind of behaviour change students and unions want? In reality, the buck stops for many vice chancellors at their respective university councils.

Universities argue their expenses regimes are fit for purpose and by being exposed they are acting responsibly. A Housing Association has taken it upon itself to begin publishing details of their expenses. Being threatened with FOI-inclusion by Minister Grant Shapps, they have embraced the push towards transparency and opened themselves up to the scrutiny of others.

Is that a safe move, PR-wise? Even when efficiencies are made overall, exposure of expenses doesn’t always inspire trust: the total claims made by MPs’ are down by a fifth this year, but that hasn’t stopped the Daily Mail focussing on first class travel. Context is everything: “[MPs’ expenses claims] highlight the extent to which the system cossets MPs from the crippling rises in the cost of living that are squeezing the incomes of ordinary families.” Ouch.

The issue remains a touchstone across the public sector: this week examples come from the police, the British Council, the BBC, former MPs like Tony Blair (and less recently, Thatcher,) and even popping up in the Leveson Inquiry.

The most interesting piece of expenses news this week however, might be a small survey by YouGov, carried out for Concur, a firm which specialises in expenses software. 18 per cent of respondents said they would exaggerate expenses claims if they believed they were otherwise underpaid. Who’s fit to judge now?