A long-time friend of the Unit, Prof Patrick Birkinshaw, and Dr Mike Varney have just published the fourth edition of their book, Government and Information: the law relating to access, disclosure and their regulation. It is designed to be a guide for legal practitioners who work with information laws, and also covers reforms involving the web, protection of privacy, the role of grievance procedures and judicial review in assisting openness, and the role of the courts in obtaining information.
Tag Archives: Freedom of information
Should We Give Them Some Space? FOI and Cabinet decisions
The retiring Cabinet Secretary Gus O’ Donnell spoke in an interview today about the need to amend FOI to protect decision-making. He was concerned that the possibility of release led to officials ‘fudging’ the minutes.
“I want the minutes to accurately to reflect what people have said. I want good governance…I want them to have an open space. I want us not to be fudging the issue by saying there was a little discussion.”
He also spoke of the nervousness over lack of certainty in the law over Cabinet discussions.
‘He said he wanted more certainty that Cabinet minutes would be protected than offered by the current law, suggesting amendments to the Freedom of Information Act. “If we could draft it in a way that would really enhance openness and transparency whilst allowing some safe space, that would be good for all of us”.
What Gus O’ Donnell is referring to is a variant of the so-called Chilling Effect. We have concluded that FOI can have this effect but it doesn’t do so systemically and it is almost impossible to disentangle the effect of FOI from lots of other concerns (see page 16-18 in our local government report). However, these conclusions come with qualifications.
1. Finding evidence is very tough. FOI does cause nervousness but whether it then leads to changes is more difficult to prove. Gus also said in his interview ‘ he had not “fudged” any minutes, but was “nervous”. It would be interesting to see firm evidence and if the fudging refers to particular incidents or a general ‘shift’ in minute taking approaches. We found one or two clear cut cases but they were rare and unusual. Proving a negative and asking officials to admit unprofessional conduct is tricky.
2. Is it FOI to blame? Gus said that “Can I guarantee that this is going to stay private? No, I can’t.” But inhibitions (or lack thereof) over discussions are down to many things. Leaks were, are and always will be a huge issue- who said or did not say what and when was central to many recent controversies issues from the War in Iraq to the EU veto. A well timed leak can hinder many enemies foreign and domestic. Even US Cabinet discussion about the impact of Wikileaks was leaked.
3. Many politicians and officials told us that the ‘politics’ of decision is often ‘off paper’. How and why minutes are recorded how they is due to many things from style to resources. It plays into wider styles of ‘doing’ decisions. Do you do unminuted ‘sofa government’ or are you more formal?
4. Interestingly, overall there were some paradoxical views held. Officials at other levels were more concerned about the consequences of not having a record rather than having one.
5. Very few requests are actually made for Cabinet documents. Only one release of Cabinet Minutes has taken place over Thatcher’s controversial ‘Westland’ affair. Some countries, such as Canada, actually completely exclude all Cabinet material from FOI.
However, nervousness abounds among officials especially at senior level. This may also be heighted due to how they come into contact with FOI. Senior officials will only be copied into particularly sensitive or problematic requests. Unless they are particularly curious they will only see one in every hundred or thousand and the ‘worst’ one at that. In Ireland, such concern did help lead to a change in the law as it related to Cabinet documents.
Finally, Gus also spoke about the use of the ‘veto’ (called in the article the ‘nuclear weapon’) which can be deployed to overturn appeal decisions. This protection, then, is available but it has only been deployed twice in the UK. This compares with 48 times in the same early years of FOI in Australia. This seems to point to a perverse incentive-unlike a nuclear weapon or an EU veto – the more it is used the less attention it gets.
Town Hall Transparency?
Our new report on FOI and local government concludes that the FOI Act has made councils more open and transparent. Each year more and more questions have been asked with request numbers rising from around 60,000 a year in 2005 to nearly 200,000 in 2010.
Underneath the media headlines about senior officials’ salaries, investments and the cost of dying, FOI is being used more quietly, day-to-day, by the public to find out about things that matter to them; allotments, parking, speed bumps etc., as you can see in these records of requests here and here (this one also lists requesters by type). Businesses are using it to keep one step ahead of the competition and national and local pressure groups are making FOI requests on all sorts of topics from zoo licences to libraries. It may even have helped to uncover a murder.
Some councils are more open and more at ease with FOI than others. A few have resisted and played games. Many are concerned it’s being ‘abused’ by businesses and journalists. Most of all officials are worried about how they will cope with rising request numbers with fewer resources.
Since January 2011 councils have published all their spending over £500 on their websites (see here). The government hopes this will give transparency an extra push and also motivate ‘armchair auditors’ to check where and how councils are spending and misspending our money. The response has been mixed. Some councils have had no interest in their data, while elsewhere local newspapers have exposed controversial spending on string quartets or libraries , as have a few national newspapers . One official said the benefits are internal, as it has allowed councillors to understand their own budgets.
FOI and Open Data are working more and more closely with new online innovations, that allow data to be ‘mashed’ and sifted, and hyper local sites that serve as a platform for residents to talk about local issues. However, it remains to be seen if new technology and further local government reform helps or FOI or if it will be undermined by dwindling resources’.
Departing O’Donnell: FOI damages discussions
Cabinet Secretary Sir Gus O’Donnell, set to step down after six years as the country’s top civil servant, told the Public Administration Select Committee the Freedom of Information Act has had a “very negative impact on the freedom of policy discussions.” The Guardian reports that Sir Gus, echoing former PM Tony Blair, said that “If asked to give advice, I’d say I can’t guarantee they [ministers] can say without fear or favour if they disagree with something, and that information will remain private. Because there could be an FoI request.”
Measuring the ‘chilling effect’ is difficult as anecdote is easier to come by than hard evidence, as a previous post of ours discusses.
FOI and local government in 2010: The experience of local authorities in England
The Constitution Unit has just published its report on English local authorities’ experiences complying with the Freedom of Information Act 2000 and the Environmental Information Regulations (EIRs) throughout 2010. The report aimed to gain an understanding of the numbers and types of requests local authorities received throughout 2010, the problems they encountered with compliance and their thoughts about different aspects of FOI. The study used a web-based survey of local authorities’ FOI practitioners. Of the 353 local authorities in England, practitioners from 104 (or 29%) gave substantive responses to the survey. Key findings include:
- Based on answers given by the 104 participating practitioners, the total estimated number of FOI/EIR requests received by local authorities in 2010 is 197,737. This is 33,229 (or 20%) more requests than we estimate were made in 2009.
- A total cost of £31.6 million (an average of £159.80 per request) was estimated based on multiplying the average number of hours spent on a request, the total number of requests and the £25 per hour standard rate in dealing with an FOI request. Cost has therefore steadily fallen since 2008, showing an increase in efficiency in dealing with requests. It should however be noted that it is relatively difficult to generate an accurate estimate considering both the comparatively small sample and wide spread around the average time spent on a request. Interestingly, some local authorities (such as Rotherham Borough Council) have taken to including the cost of handling a particular request upon supplying the information to the requester.
- All council types improved their performance with regard to answering requests within the 20 day limit, despite the fact that requests are increasing in number.
- With regard to amount of information disclosed following a request, slightly more were answered in full in 2010 (79.1%) compared to 2009 (78%). However there are wide differences amongst council types. In line with this, the number of requests where no information has been released has decreased, though again, there are wide differences across council types.
- Opinion was divided over the impact of the £500 spending publication rule introduced by the coalition government.
“Extra work and virtually no benefits – for residents, businesses or the Council!”
“It’s a springboard to further regular disclosures, with a bit of luck.”
- Financial information continues to be the most frequently requested, as has been the case since 2008.
- According to respondents, the general public generate most requests, contradicting Tony Blair’s publicised regret that FOI is used not by “the people”, but predominantly by journalists. However, it is difficult to be certain of exactly who is making use of FOI as most councils fail to record this.
- Respondents identified a few main problems with compliance: requests, requesters, lack of resources, and the cooperation of management or service departments. This is a similar list to that of the 2009 report.
“Increased number of requests with less resources available to deal with them”
“Receiving information from holders and communication of requests from departments”
- When asked about positive effects of the Act, the most frequently given answers were: the development of more open, transparent, and accountable authority, improvements to records management, and general improvements to the organisation.
You can read the full report here.