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?