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.

Patience and Time? FOI and Trust

The issue of FOI and trust looks simple but isn’t. Politicians and others point out, quite rightly, that the more open you are the more you will be trusted.  This is true but it depends entirely on what information you are being open about.

The issue of if, why and how the public trust government is hotly debated. Trust may be based on experiences, emotions, gut instinct or all three. There is a question over whether trust is actually declining in the developed world. Many believe it has been falling since the mid-1960s blaming politicians, television, a more complex society, a lack of deference, the Vietnam War, the Beatles and Lyndon Johnson. Others have pointed out that, from what little we know, government has only ever been trusted by a few of the people a little of the time. Politics, they say, is not an occupation for the trustworthy.

So where does FOI fit? It is hoped that the more open you are the more the public will trust you. This is because they will understand more about what you do and also because, quite simply, you will be less secretive.

Our projects have all looked into this. Our central government project concluded that FOI did not increase trust. This was because most people find out about FOI through stories which rightly (see MPs’ expenses said journalists) or wrongly (just open a newspaper said politicians) are about government failure. But it isn’t fair to blame FOI. This never ending battle is much bigger than FOI, which just gets caught up in it. The government spins, the media attacks. The more interesting point is that both requesters and officials felt their own requests were in some senses ‘motivated by mistrust’. But again this isn’t FOI’s fault.

Our local project has found different results. Local government is, generally more trusted than central government anyway. Here it can be very variable. In some areas the local press use FOI often, in others never. It is also used to find out about lots of non-local government issues that don’t necessarily reflect on the council such as violence in public libraries (more than you think in answer to your unspoken question) and dirty restaurants. Requesters are also divided-some say it has increased their trust, others say it has not. Local politicians have pointed out that they can do things that central government can’t to build ‘local trust’. They can improve their services (taking bins out, repairing roads) and try to be more ‘visible’ in the community. Opening fetes and judging vegetables may have more effect than any FOI.

This last point highlights the difficulty. How you measure trust depends, as ever, on what you ask and how you ask it. Some recent studies about E-government point to the fact that people trust more if they see their actions make a difference. It also may dependent on what attitudes and ideas they bring with them (here some members of the public were disappointed by the messiness of how politics really worked).

There is probably no definitive way of answering this. The real answer to ‘does FOI improve trust?’ is ‘it depends’.  It is unrealistic and naïve to hope FOI on its own, caught between a spinning government and a hostile press, could improve things. It may also be early days. For openness to make a difference it could take time, a whole lot of precious time, patience and time, the two things politicians don’t have.

University funding and access to information: does FOI have a corrosive effect on trust?

The funding of universities is all over the press at the minute, but while the fee rise may be taking the headlines, a furore over donations from dubious sources is almost certainly brewing.

Howard Davies, the former director of the LSE, resigned amid the controversy over Libyan donations to the School, and stories are starting to emerge as part of a campaign to uncover links between British universities and dictatorial regimes. Conservative MP, Robert Halfon, has made requests to 100 top-rated universities aimed at making their financing public knowledge. Durham University was among the first to have their laundry aired last month, when it was revealed that the University had received £700,000 in research grants from Middle-East sources, including £11,000 from the Iranian government[1].

The morality involved in this funding is a minefield in itself, but the implications for FOI are also of interest. On a superficial level, university funding is likely to be the next big story to emerge through the use of FOI. As Mr Halfon gets more responses to his requests it seems likely that funding for higher education will come from a variety of morally suspect sources, and so as a use of FOI to scrutinise public bodies, the subject is of interest. But there is a problem that is developing alongside such stories.

While scrutiny may be flourishing with FOI, as another scandal develops through its use, university funding points to an emerging difficulty: the potentially corrosive impact of transparency on trust. One of the key aims that pro-FOI campaigners argued for while the Act was being drafted was that decreasing secrecy would lead to greater trust in public bodies, but the reality might be the exact opposite.

It is the nature of the press that the stories that will make the biggest impact, and generate the biggest sales, are scandalous: If the results of requests for details of MPs expense claims had proved parliamentarians to be wholly honest then there would have been no story. Paradoxically, while greater levels of scrutiny and a higher chance of journalists uncovering misdeeds may increase trustworthiness, it may do so at the expense of trust[2].

So what can be done? The answer is probably not very much. The more successfully FOI uncovers the wrongdoings of public employees, and the greater the number of their misdeeds that are identified, the less likely people are to trust them. It seems that the more effective a system of FOI is, the more likely it is to damage public trust. Perhaps in the long run, when all the skeletons are uncovered, trust will be improved, but as the investigation into universities has demonstrated, there are still plenty more to find.

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[1] The Institute for Middle Eastern and Islamic studies at Durham University is a highly regarded centre for study of the middle east (http://www.dur.ac.uk/sgia/imeis/).

[2] It’s worth noting that press is only one indicator of public trust, and it may be very difficult to measure trust more widely, but nevertheless the media important in this regard. The Ministry of Justice and the ICO have published more detailed research into trust and FOI: