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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1849-i
House of COMMONS
TAKEN BEFORE the
Post-legislative scrutiny of the
Freedom of Information Act 2000
Tuesday 21 February 2012
Maurice Frankel, Alexandra Runswick and Alex Skene
Professor Robert Hazell, Dr Ben Worthy and Jim Amos
Evidence heard in Public Questions 1 - 92
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Taken before the Justice Committee
on Tuesday 21 February 2012
Sir Alan Beith (Chair)
Mr Robert Buckland
Nick de Bois
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: Maurice Frankel, Director, Campaign for Freedom of Information, Alexandra Runswick, Deputy Director, Unlock Democracy, and Alex Skene, Volunteer, WhatDoTheyKnow, gave evidence.
Chair: A very warm welcome to you, Mr Frankel, Ms Runswick and Mr Skene. Mr Frankel, you and I have been exchanging evidence across tables on this issue for a very long time-virtually from the beginning-and we are very glad to see you again today as we begin our review of how the Freedom of Information Act 2000 has worked, partly in the light of the Government’s own post-legislative assessment. It is obviously our task to see not only whether it has worked but whether the Government are right in their assessment. I ask Mr Brine to open our questions.
Q1 Steve Brine: Good morning. Thank you for coming here today. I start with Mr Frankel, but by all means others may answer.
Mr Frankel, your organisation was set up in 1984, so you have been campaigning for this for a long time; it is some 20 years since its implementation, and you must have been very pleased when it happened. In your view, were the objectives of the Freedom of Information Act realistic, and to what extent have they been met?
Maurice Frankel: They were realistic, and we are on the way to meeting them. Even though we have been here for five years, these are still relatively early days. We have got to the point at which public authorities know that they can no longer refuse at whim, simply because it is inconvenient for them, to release the information and disclose what they want to. They know that they have to go through particular tests. The public interest test in the Act, which bites on about two thirds of the exemptions, actually works in quite an effective way, but it is slow. The slowness and the time lag is a problem, but the Act has been very helpful. It has provided a lot of important information to people who would not have had that information before.
Q2 Steve Brine: It is a key question to start off with, so could I ask the other two witnesses to comment?
Alexandra Runswick: I broadly agree with Maurice that the Government are certainly considerably more open and transparent than they were before the Freedom of Information Act. As he said, it has released important information.
Chair: May I say that it is necessary to speak up quite a lot in this room because of the acoustics?
Alexandra Runswick: There are still challenges in implementing the culture of freedom of information rather than only the Freedom of Information Act. It is something that will take a considerable time. It is about changing the mindset from it being something where information should be kept "private unless" to a culture where it should be made "public unless". It is a difficult journey, and we have not yet completed it, but it is one with which other countries that have had freedom of information regimes for considerably longer are also struggling.
Alex Skene: I would agree with what everyone has said so far.
Q3 Steve Brine: To bring you back to what the Home Secretary said in the House when introducing the Bill at Second Reading, he said: "It is possible to make parts of a freedom of information regime self-defeating. We want to ensure that that does not happen here…I think that my hon. Friend the Member for Blyth Valley", to whom he referred at the time, "said that when he went to Australia he was told rather cynically by officials there that they had two devices for getting round what they thought was over-elaborate freedom of information legislation. One was to put documents on a trolley and wheel it into the Cabinet room…as though they had been sprinkled with holy water. The second device was to make extensive use of post-it notes. That is a way of undermining the accountability of Ministers and I do not want it repeated here."
Has it been repeated here or would we know?
Maurice Frankel: I think that Jack Straw was being more sophisticated in his analysis of how the Act could be circumvented than was necessary. It is much easier than that to cause requesters unnecessary problems. It is much easier to cite exemptions that do not stand up-and that the authorities’ own FOI practitioners tell the authorities do not stand up-in the knowledge that it will be months or perhaps years before they are finally overturned if people persist.
It is not necessary to go down the post-it note route. We have our own version of post-it notes. Whitehall introduced a policy of destroying e-mails after three months unless they have been specifically selected for permanent preservation. That was introduced a few months before the FOI Act came into force, and it is Whitehall’s more sophisticated version of a post-it note policy. Jack Straw was possibly looking at the pre-electronic version of those techniques.
Q4 Steve Brine: There has been a lot of talk about the start of this inquiry, about which there is understandable public interest. Tomorrow, for instance, there will be a debate in Parliament on risk registers, which is very relevant. There is a lot of talk about whether this has led to sensible, good government or not.
I shall give another quote, which I cannot resist, from Tony Blair’s autobiography. He was the Prime Minister who ultimately put this Act through Parliament. He wrote: "Freedom of Information. Three harmless words. I look at those words as I write them, and feel like shaking my head till it drops off my shoulders. You idiot. You naive, foolish, irresponsible nincompoop." Hansard will enjoy that one. He continued: "There is really no description of stupidity, no matter how vivid, that is adequate. I quake at the imbecility of it."
This is the Prime Minister who put that piece of legislation on the statute book. Honestly, as someone who campaigned for it, what did you think when you read that?
Maurice Frankel: I was dismayed; I was utterly dismayed at that comment, but there is a history to Tony Blair’s lack of enthusiasm for freedom of information. He was extremely enthusiastic before he became Prime Minister. He gave a very impressive talk on the subject at our annual awards, and he impressed everybody.
There are three sections in his memoirs on freedom of information. Two of them appear to describe his realisation of the practical impact of freedom of information and appear to have been written in the light of experience, but one was written before the Act came into force. In that, he said that he regrets attacking the Conservatives for what he calls Tory sleaze before the election; little did he realise, he said, that Labour would have its own skeletons in the cupboard and that they would be just as "repulsive"-his word. He then went on to say what the skeletons were. One of them was the Ecclestone affair in which it was alleged that Labour had talked to Bernie Ecclestone about accepting another donation in return for exempting Formula 1 motor racing from the tobacco ban. What happened is that the late introduction of FOI meant that the papers on that did not come out until after Tony Blair had left office, but it is clear from that passage in his memoirs that he was anticipating the effect of FOI in making it more difficult for him or perhaps any Government to conceal things when they went wrong or when they had their own skeletons in the cupboard. That conditions what he says about reproaching himself for introducing the Act.
Q5 Steve Brine: Finally, do the other witnesses think that the Act has improved the quality of public debate?
Alexandra Runswick: It depends what you mean by that. I would say that it has improved the quality on the basis that the public have more access to information and therefore can debate things more equally and more meaningfully. However, that does not mean that it does not make things difficult for the public authority concerned; of course it does. Freedom of information is difficult for public authorities, because some information that they would rather was kept private cannot be. I know from my own experience in the area of London where I live that a lot has come out about the local authority as a result of FOI requests, and there are public debates that we would not have had if it had not been for FOI. So I would say, yes, it has improved the quality of public debate.
Alex Skene: FOI is about getting facts out of public authorities. If you have the facts, you can have evidence-based policy making rather than politics-based policy making. Having the facts to hand means that you can also challenge the public authorities about why they have gone down a certain route. The Act is very effective in allowing the local populus to have a say and to influence local government in the areas in which they live, and also central Government.
Q6 Chair: To clarify things, is it the role of your organisation to provide a facility for people who want to use freedom of information to pursue a specific issue-perhaps a local one or one that affects a particular group of people? Is that right?
Alex Skene: Yes, that is right. WhatDoTheyKnow allows people to make FOI requests easily. It has almost turbocharged the Act. The Act was pretty much restricted to journalists who used it in its first days. Research done by the UCL Constitution Unit shows that members of the public are now more aware of it. They come to our website because we make it easy for them to find the public authority that is applicable to where they live, or central Government, and we help them to phrase the questions in an easy way so that they can get the information that they are after.
Q7 Mr Llwyd: Good morning. Do you believe that the appropriate limits on time and costs spent on an FOI request are too long, too short or somewhere near the right level?
Maurice Frankel: It is a compromise. The UK has an unusual arrangement, which other countries generally do not have. They generally have a provision that allows authorities to refuse if it would result in an unreasonable diversion of their resources, and you have to work that out each time. We have an absolute limit of £600 or £450, which cannot be exceeded even when there is a substantial public interest in gaining access to the information. It is a compromise, with a requirement that people moderate their requests to keep within that limit, and on the whole they do not pay for the information. It gives people a reasonably good chance, but you also see that very large numbers of requests are refused because they exceed the cost limit. It is quite a tricky matter for people to bring a request within the cost limit if they do not get good advice from the public authority on how to do it and what information they hold.
Q8 Mr Llwyd: We have a similar example in Westminster. Members of Parliament are sometimes told that they will not get a response because it would be at a disproportionate cost. Would your expert advice, in terms of keeping it short and simple, be to put in two or three requests rather than one? I guess that is probably the way forward, is it not?
Maurice Frankel: The requester has, in a sense, to try to understand how the records are kept and in what form, and how easy it is for the authority to obtain the information they have asked for. It is quite easy to make what you think is a very simple request, but if it involves a lot of people in different offices going through different files, some of which are not indexed, it will mean that you will not get any information at all; but there is no way for you to know that before you make your request. Unless the authority is helpful in responding and guiding you through the problems, you may come up against one obstacle after another.
Q9 Mr Llwyd: There are not many local authorities who are willing to guide requesters, are there?
Maurice Frankel: They are under a statutory obligation to provide advice and assistance, but too often they just say, "If you narrow your request, you might have a better chance." The statutory code of practice says that they should suggest what information would be available within the cost limit or suggest how they might go about narrowing the request so that they get at least part of what they are asking for.
Q10 Mr Llwyd: Do your colleagues have anything to add?
Alex Skene: The cost limits are broadly about right, because, although many of them tend to go over the limit, those requests are very much on the lines of, "Give me everything you’ve got on this subject." Much of that kind of cost could be defrayed if the documents were proactively published on the website to begin with rather than keeping them locked in a cupboard. That is especially so for those authorities that have really good document management systems and good websites. The more they publish, the less they have to spend on responding to FOI requests, and the less likely people are to hit the £450 or £600 limit.
Q11 Mr Llwyd: On the other side of the coin are specious or vexatious requests. Leeds city council told us that it has received a number of requests about ghost sightings and paranormal activity in its buildings. Should that kind of thing be dealt with so that authorities are not wasting their time?
Maurice Frankel: I have no problem with trying to prevent such requests being made. The people asking those questions are idiotic, really. I hesitate to say that they are made by idiots, but they are idiotic requests.
Q12 Chair: There is not a category of idiotic.
Maurice Frankel: There is no such category. The problem is that, once you create such a category, lots of people who are not idiots may be considered to be idiots by the public authorities, and it is the same with frivolous requests. That is the reason for my hesitation. At the end of the day, although I regret it each time that I see such requests being made, it is not those requests that are causing the authorities a problem. As for requests about zombies and ghosts-
Q13 Mr Llwyd: Alien sightings and so on.
Maurice Frankel: Yes. On the whole, I doubt that it is taking public authorities any time at all to answer those requests. They are silly requests, but I doubt whether they are time-consuming.
Mr Llwyd: That does not surprise me.
Q14 Chair: Are they not rather easy to answer? "There are no documents on this matter."
Maurice Frankel: Exactly. If you want, you may first send an e-mail just to the ghost investigation officer, if you have one, but the whole process will take only a couple of minutes, I would have thought.
Q15 Mr Llwyd: I do not know, but I presume that the people who make such requests are serial requesters on nonsense subjects. Should they be identified so that people can then say, "Here we go again. We’ve got AB asking a silly question again"? You will know that in court there is such a thing as a vexatious litigant, and after so many attempts at wasting court time he or she will effectively be outlawed from coming to court without the leave of the court to do so. I am considering something of that sort, by analogy.
Maurice Frankel: At the moment, the authority can refuse a vexatious request but not a vexatious requester. I believe that that is the right approach, because you sometimes find that someone goes off on a very time-consuming repeated tangent but then makes an entirely different request, sometimes about something that directly affects them and that has validity. You will then see the Information Commissioner saying about those requests, "I uphold the authority in finding most of them vexatious, but this request is entirely different. The person has a serious purpose, and it is not going to take up a massive amount of time, so you should deal with it." I am not at all sure that the people who make requests about ghosts are making hundreds of requests; they may be entertaining themselves at public expense once, and not being persistent.
Alex Skene: The ghost story came from Haunted magazine. It was made up by members of the press.
Q16 Chair: Does that add to its validity in any way?
Alex Skene: Maybe not, but there are cases where such requests have exposed public spending. For instance, the MOD spent a lot of time collecting information about UFOs. It could be very hard to draw the line on what is frivolous and what is not. Some local authorities have even paid for exorcisms. You could say, "Do you want to"-
Q17 Chair: To use taxpayers’ money on it.
Alex Skene: It is something like that. You could almost extend it to things like homeopathy, which is believed by many people to work. You could also ask whether that is a valuable use of public money. I agree that vexatious requests-the ones that cause most problems-are made by people who are trying to pursue a complaint or a vendetta with a particular council that has not been resolved through other means. It is those requests that should be ignored and they are allowed to be ignored under section 14 if they are vexatious. I think authorities should ignore more of those types of requests.
Alexandra Runswick: I, too, would be very wary about creating a new category of frivolous requests. What may seem frivolous could be part of a genuine research project. For example, the Local Government Association recently published a list of what it considered to be unusual FOI requests, one of which was to Scarborough borough council about the number of cheques that it had received and issued. I can see that that could be a difficult question for the authority to answer, but, at the same time when banks are talking about stopping issuing cheques, I can also see that it would be a legitimate question for a variety of campaigning organisations. We need to be wary of creating new categories of exemptions, yet we should obviously be supporting the existing ones for vexatious requests.
Q18 Mr Llwyd: I know that my next question probably will not affect the authoritative tone of seekers after truth such as Haunted, but what would be the effect of routine fee charging on this issue?
Alex Skene: I think it would be devastating. It will prevent a lot of FOI requests from being made at all. You will have to rely on people such as the regular scrutineers of public bodies to ensure that money is being spent in the right way. There may be less transparency. Wirral borough council said today that it does not want charges because it will not stop cover-ups but will stop them being made public; when something has gone wrong, the council will be able to stop the local populace finding out what is going on.
Q19 Nick de Bois: Do you know what the total cost of FOI requests is for typical boroughs or Government Departments? Do you think that it might change the public’s opinion if they knew what the taxpayer was funding?
Alex Skene: There has not been that much research on that.
Q20 Nick de Bois: Do we need an FOI request to find out?
Alex Skene: You would have to ask, yes. There have been various estimates. For instance, NHS foundation trusts say that FOI requests cost them £40 million a year. At the same time, the budget is about £700 billion a year, so it is about 0.1% of the total spend.
Q21 Nick de Bois: Mr Frankel, is there a danger that it could change the public’s perception?
Maurice Frankel: It might, but you would also need to factor in the savings of FOI requests in deterring authorities from spending of the kind that they used to undertake previously. One of the early freedom of information requests in Scotland revealed that councillors in a particular authority were flying all over the world to go to flower shows-spending £6,000 a trip to go to Tokyo for a flower show. That stopped the moment FOI exposed it. There is a lot of that happening. Indeed, the Government are encouraging the use of freedom of information precisely for that purpose. If you simply count the cost of answering requests and not the savings that result from them and from the anticipation of requests, you will miscalculate their overall impact.
Q22 Nick de Bois: In fairness to boroughs, they now have to publish-regardless-expenditure of more than £500, which I think is an excellent move that encourages that as well.
Maurice Frankel: I agree, but, if you look at the way some of them publish them, it is incomprehensible without making an FOI request to find out what the money is being spent on.
Nick de Bois: It is tricky; I agree. That is a fair point.
Q23 Mr Buckland: I return to the point made by Mr Skene about proactive publication; in fact it develops what Maurice Frankel said about the impenetrability of some of these documents. Some of them emerge in tiny type and are very difficult to read, even for people without spectacles. What needs to be done, if anything, to improve proactive publication? Does there need to be regulation, do we need more intervention, or should there be a growth of good practice?
Alex Skene: There has to be the right culture. Some of the written responses, such as those from the NHS Business Services Authority, say they do not have a problem with it; they like it and think that proactive publication is the way forward as it saves them money. They do not have to spend money on responding to FOI requests; they can say, "Look on our website and use the tools to download the data that you want." This culture is built into those public authorities. It needs to be extended to other public authorities to ensure that the transparency agenda is embedded in their culture, but I do not know how that can be done.
Q24 Mr Buckland: Do you think that the Government’s transparency agenda is helping this process?
Alex Skene: I think that it is setting it on its way and lots of good data has been released, which is starting to create economic benefit for those who are using it and making people aware of such things as spending. That is a start; it will need to be pushed out to everybody else, but it is setting a good example.
Q25 Mr Buckland: Can I turn to the practicalities of the 20-day limit? Looking at the 2010 figures issued by the Government, it seems that, although the guidelines suggest that that limit should be exceeded only if there are exceptionally complex cases, 17% of all requests were extended beyond that limit, and for 5% of those no reason was given. Do you think that the 20-day limit is appropriate? Do you think that more needs to be done on enforceability about the time taken for internal reviews and the reviews that are required, which are often given as the reason for further delay?
Maurice Frankel: There should be statutory time limits. We should not have open-ended extensions for public interest, and we need a statutory time limit for internal review. Perhaps we need more emphatic intervention by the Information Commissioner on people who are being deliberately obstructive. Only yesterday I was sent a response that somebody received from the Royal Borough of Kingston upon Thames. A request had been made on 5 October and it was answered on 16 February. The answer was, "We cannot provide this information because it would exceed the cost limit." That took four months to refuse on cost grounds. That seems to me to be obstructive. You can say things like that only if you believe that you face no repercussions for doing so. We need more active intervention to deal with that type of inappropriate response.
Alex Skene: On this subject, one of the biggest complaints that we get from users of our website is about delays to requests. We do not get it from people in Scotland, as they have statutory limits in their legislation for internal reviews, and they do not have the public interest test extension. The time limits seem to work okay in Scotland, and there seems to be a good culture there for responding to FOI requests.
Q26 Mr Buckland: Is it the same 20-day limit there?
Alex Skene: They have a 20-day limit, but they cannot extend it for the public interest test, and internal reviews have to be done within a set limit.
Q27 Chair: The range of bodies that they deal with is more limited, is it not?
Alex Skene: Yes, in terms of the functions carried out in Scotland, apart from the central Government ones carried out here and things like local authorities, they do not have the same issue with delays in responses.
Q28 Mr Buckland: Is there a mechanism for any further extension in Scotland? We know about the public interest one, but in an exceptionally complex case-we understand that there will be such cases-should there not be some discretion for public authorities, so long as they explain why they are extending?
Maurice Frankel: There is no extension at all under the Freedom of Information (Scotland) Act 2002; it is a straightforward 20-working day time limit.
Q29 Mr Buckland: Is that right? Should there not be some leeway, so long as the public authority explains clearly why?
Maurice Frankel: I see a case for permitting extensions where the request is voluminous and complex, and in particular where the authority has to consult a third party outside-not another public authority but an individual or business that has provided the information-in order to know whether an exemption applies. From the start, the public interest extension was misguided. We said so to the Government at the time. I remember an official saying to me, "We have had such a job getting agreement from the Cabinet Committee that we don’t dare go back, however good the case for changing anything, because the whole thing will be unstitched. Every agreement we have will be unstitched." That is how it was put in place, and that is how the final Act took its form.
Q30 Ben Gummer: May I turn to the question of enforcement? I have some personal experience of this-not against me, I hasten to add. Before the election, as a candidate, I used FOI quite effectively for campaigning. One of the ways that I did so was trying to find a consultant’s spend from my local PCT. I happen to know that the PCT had spent a large amount of money with a well-known American consultant, so I popped in an FOI request asking how much money it had spent generically on consultants. Back came the answer but without the name of the consultant. I knew from a mole that it had used him, so I put back another FOI asking how much it had spent with this particular consultant. There was a hurried reply, admitting that it had spent £450,000. It said that that had not been revealed in the first answer because the money had been accounted for incorrectly-an interesting answer in itself. Had I not known that, I would not have known that it had committed an offence under section 77.
This is a long way of asking whether there has there been any academic research, by blind testing, on the number of instances where concealment has not been prosecuted under section 77.
Maurice Frankel: As far as I know, nothing has been prosecuted under section 77.
Ben Gummer: Really?
Maurice Frankel: I am not aware of any such case. That is partly because of the six-month time limit that exists for prosecutions. In other words, if the alleged offence comes to light more than six months after it has been committed, there is nothing that the Information Commissioner can do about it anyway because no proceedings can then be brought. We believe that that time limit should be extended to two or three years, as it has been in many other pieces of legislation, to allow that to happen. It is a difficult provision to apply anyway, because you have to prove deliberate intent to conceal rather than simply saying that the papers went missing or that somebody did not make an adequate search through oversight.
Q31 Ben Gummer: Do you have an anecdotal feel for how much concealment there has been?
Alex Skene: We do get complaints. We see complaints going through saying, "Well, I know this." Later, an apology comes back to say, "I’m sorry; yes, we have the information." The end result is that they have got the information that they were after, but you have to have someone on the inside. That is why there has been a lack of increase in whistleblowing and things like that, which has led to fewer revelations due to FOI requests being refused. Coming back to section 77, only the Information Commissioner can start the investigation, but for him to be in a position to do that you will already be at least several months down the line, especially with the public interest test extension and the internal review time which is unlimited. It could be at least a year before you get to the Information Commissioner, by which time there will be no chance of anything happening under section 77.
Maurice Frankel: One has to look also at the terms of section 77. It is not just the time limit. Its terms are not as effective in dealing with the kind of problem that you have just described as they might be, because you would have to show that the authority had deliberately destroyed, concealed, altered or amended the record. In the case that you describe, you would have to show that it had concealed the record. When an authority knows that it has the record, and if there is no physical act of concealment-in other words, somebody has taken it home so that the people putting the package together to respond just cannot find it-it is not entirely clear to me that an offence will have been committed because of the precise terms of section 77. There may be a case for looking at the terms of section 77 itself.
Q32 Ben Gummer: Revealing only a partial truth is not an offence under section 77.
Maurice Frankel: No, absolutely not. Nor is deliberately making an exemption claim that you know has no foundation whatever. Had the authority said, "We have this information about the spend on this contractor, but it is prejudicial to their commercial interests", even if it was a completely fabricated excuse, it probably would not be an offence. It is quite a tricky area, and one has to look at the boundaries between a genuine ill-judged use of an exemption and a deliberate use of an exemption to suppress information.
Q33 Ben Gummer: What would be the impact of changing the terms and duration of that section?
Maurice Frankel: The objective should be to deal with deliberate obstruction. That might need something slightly more fine-tuned than section 77 as presently drafted.
Chair: Mr Turner, you have a supplementary question.
Q34 Karl Turner: The question may have been answered, Sir Alan. Under section 77, the time limit is six months, but with judicial review proceedings the statutory time limit is three months. I was a little surprised, Mr Frankel, to hear you say that it should be extended, but under further examination by my friend Mr Gummer you have probably explained the point. It is more about the terms than the actual time limit. Is that the position? Are the terms of section 77 more of a difficulty than the time limit?
Maurice Frankel: No; I would say they are both issues. The six-month limit rules out a lot of cases, even if there has been a deliberate interference with the record in order to prevent its disclosure. However much you refine the terms, if you still have to bring a prosecution within six months, section 77 will be ineffective.
Q35 Karl Turner: It seems very extreme that you should advocate extending the time limit to two years. It is a long time.
Maurice Frankel: We regularly have requests which take more than six months before the authority provides the initial response. We also have requests that take more than six months before they complete an internal review. If you put those together, you have more than a year before the applicant is in a position to go to the Information Commissioner. If you have a six-month limit on bringing a prosecution, that authority is guaranteed safe from prosecution.
Q36 Chair: When does the clock start?
Maurice Frankel: It starts when the offence is committed. If the offence is committed on the day the request is received and they then sit on that request for six months, they are safe. That is why the period should be extended. I say that it should be within six months of the offence coming to light but within two or three years of it being committed. It should still be within a period of the offence coming to light so that it cannot be used in an oppressive way to come back and surprise somebody. The purpose of the six-month period initially is to stop authorities pursuing individuals years after the offence.
Q37 Mr Buckland: The reason why section 77 has a six-month time limit is that it is a summary-only offence. All magistrates court offences have this time limit, and there is a strong public interest in that. Would it not be simpler to change the law so that it became an either-way offence? That would avoid the problem of having differing time limits for different types of summary offence. Would you support such a change in the law?
Maurice Frankel: I would support that. However, I observe that in our written evidence we provided about a dozen examples of where the Government have changed the six-month limit-in relation to the building regulations and all kinds of other regulations-specifically because they accept that it is difficult to obtain evidence of the offence within the period.
Q38 Ben Gummer: I have a final question on enforcement. On the matter of the commissioner publishing the names of public authorities that regularly miss the 20-day limit, has it had a noticeable impact upon the celerity with which authorities answer questions?
Alex Skene: We have seen it work for a short period. It can work and improve consistently, but we have seen them issue directions but with no improvement-for example, the Cabinet Office-and there are still persistent delays with some requests.
Q39 Ben Gummer: Would greater transparency aid how quickly authorities answer questions? Is there anything else that you would want from public authorities, in the sense of transparency about their own FOI handling?
Alex Skene: Yes. In our written evidence, we say that, rather than just central Government publishing their statistics, it should be extended more to local authorities, perhaps through the code of practice under section 45, which is on how people should operate the way in which they implement the Act in practice. Publishing statistics will help because it will at least highlight to their peers-other public authorities-where they are doing well and where they are not doing so well. We frequently get requests from public authorities. For example, on our website you can classify results, saying, for instance, if you have received information and whether it was successful or not. We do get requests where they think that overdue status has been unfairly placed on the requests, and we are happy to change that for them because the requester got it wrong. However, there are public authorities that are very keen on wanting to meet the deadlines, and they want that to be more visible.
Q40 Ben Gummer: On the international context, which was touched upon by Mr Buckland, where are we now in comparison with other comparable democracies in our freedom of information regime?
Maurice Frankel: An international survey was published in November last year that just looked at the statutory provisions and not how they were implemented, which rated the UK 27th out of 95 countries with FOI laws. So we are doing reasonably well; we are certainly ahead of Australia, Canada, the United States and Sweden in terms of statutory provision. Some of the more recent Acts and statutory provisions were more highly rated, but that did not take account of how well they work in practice.
Q41 Ben Gummer: Earlier, you described our journey in terms of the culture of freedom of information. Is our ranking a function of that journey and how long countries have been on it or of the wording of the Freedom of Information Act itself?
Maurice Frankel: That ranking is to do with the wording of the Act and not with how well it operates in practice.
Q42 Ben Gummer: What would your assessment be of the practicalities compared with our international peers?
Maurice Frankel: It does quite well in practice as well. I thought that the methodology of that research was not as sensitive as it might have been to what the user’s experience would be as opposed to what the Act said. You sometimes get laws that are extremely good on paper that are not implemented or enforced properly.
Alex Skene: The software that underlies the website is being internationalised. There is a huge demand for it in other countries. It is now in five new countries, and it will be extended to 10 more. People see that the model in the UK works pretty well because people can submit FOI requests and get information back by e-mail, whereas in a lot of countries, such as the US, the responses tend to be on paper. That makes it hard for that information to be reused and available for others to see. With each of our requests, about 20 people read it, so it is quite good value for money in terms of how we present the information and how people use FOI. It gets embedded in the public culture.
Maurice Frankel: On the use made of the Act, you will hear from the Constitution Unit later, and its research talks about there being little impact on public understanding or trust. I believe that the Act is more effective than that study suggests, but one has to look at it in the context of the methodology that has been used. The methodology gives great weight to the content of newspaper reports of FOI disclosures but not to the impact of an FOI disclosure on the requester, who might find that a matter on which they urgently needed to learn something had been substantially clarified, or that other people may read about it without it happening via the press-that is, through the requester’s website, a commentator or an advice body, which is in a much better position to advise people on the use of the Act.
I note from the evidence that you have received a submission from a John Campbell, an academic, about the use that he made of the Act to throw light on the Home Office or immigration service use of language assessment to test whether an asylum seeker comes from the country that he claims to come from. It was a very impressive piece of research and has shown the weaknesses and failure of the Home Office to comply with the proper procedures for using that technique of analysis. However, that has not been reported in the press. For everybody working in the immigration field-and I am sure that it will be on the agenda of the Home Affairs Select Committee at some time-it will throw great light on how the Government take and reach decisions. It is not in the press and not in that survey that has been done, but it is another mechanism whereby the public’s understanding is improved. There are real effects and real benefits that are not being caught by some pieces of research.
Q43 Nick de Bois: I am conscious of the time constraints, Sir Alan, so I shall try to stick to one question. May I start with you, Mr Frankel? With more public services contracting out, and more social enterprises and private enterprises coming in, from health services to local authorities, how can the Government ensure that the public do not lose their right to receive information because of the current exclusions on commercial sensitivity and so forth? I would look for ways to encourage more transparency.
Maurice Frankel: The solution is either to designate the contractor as a public authority in its own right where it undertakes substantial work, which the Act permits, or, in effect-I would make this an amendment to the Freedom of Information Act itself-to say that, where an authority has a contract with a contractor, the information that the contractor holds in relation to that contract is deemed to be held on behalf of the authority. That makes it accessible via the authority.
Q44 Nick de Bois: May I clarify this? Although I agree in principle with what you are trying to achieve, if a contract comes up for a rebid, that provider could put himself at a commercial disadvantage through that information being accessible in the public domain for competitors. How easy will it be to contain that to some degree?
Maurice Frankel: The Act already has an exemption for prejudice to commercial interests and trade secrets, which is intended to prevent that happening unless it is in the public interest. One relies on that to prevent the contractor being unfairly disadvantaged. However, you should also bear in mind that the sitting contractor has a fantastic advantage over someone who is trying to get into that market, because it knows exactly what the authority wants. That is an obstacle to new entrants. I do not see any problem in putting that in place.
Alexandra Runswick: May I add to what Maurice has said? There are real democratic accountability problems with services being contracted out, and freedom of information is really important in that respect, so we would want to ensure-what Maurice suggests would be a good way of doing it-that private contractors carrying out public functions were still covered by the Freedom of Information Act.
Q45 Nick de Bois: We have had some submissions from universities, with concerns over the application of the FOI for pre-publication of research material, understandably. Are the current protections inadequate in your experience, and, if so, is the additional exemption in this area justified? Do they have a point?
Maurice Frankel: In part they are comparing the UK Act with the Scottish Act, which has an exemption for research interests, but one reason why the Scottish Act has it is this. It has an exemption for information intended for future publication, and a 12-week cap on how long that information can be withheld, but the UK Act has an exemption with no cap on information that is intended to be published in future. When the 12-week limit was put into the Scottish Bill, the universities said that it would leave them very exposed and they would need an additional exemption for research, which was not the case in the UK. One has to look carefully at the circumstances that they are positing and whether the exemption for personal information will protect them, and whether the exemptions for information supplied in confidence and information intended for future publication will not supply it. It may be that that package of exemptions deals with those situations.
Q46 Nick de Bois: Given that more and more emphasis is being placed on less public funding of universities and more private funding, should they have the same onus put on them for FOI periods as public bodies that are fully publicly funded? There is one university that has as little as 14.5% of its funding coming from the state.
Maurice Frankel: I would be reluctant to interfere with the definitions of universities. However, to the extent that they are regarded as being in the public sector, and one that gets 14% of its funding from the state is in the public sector, I think they should be subject to-
Q47 Nick de Bois: I believe that a European definition suggests that it should be 50% of the funding to qualify as a public sector body.
Maurice Frankel: As far as I know, that is not the current criterion here, and it was not the criterion used when deciding what was in the public sector when the schedule to the Act was put together.
Q48 Nick de Bois: To get clarity, even though it is at the low level of 14.5%, which is an extreme, I grant you, are you saying that it is still fair to make it subject to FOI?
Maurice Frankel: Yes.
Q49 Nick de Bois: Mr Skene, do you agree with that?
Alex Skene: Universities control access to professions because they are degree- awarding bodies, and I know that the Government are looking to extend it to even more private providers. As for the way in which they can operate in other countries, they are covered as well in the legislation under their FOI Acts. I think the definition of whether a university is a public authority or not is the right one at the moment. If there was an intention to cover only information relating to degrees or something like that, that would be another approach but not one that we would particularly recommend.
Q50 Chair: There are a couple of related points. One area of concern among universities is research involving animal testing because of the security issues for staff working in that field, given the nature of some of the attacks that have taken place. Are you satisfied that the legislation in its present form can properly be used to protect staff in those situations-names and addresses, details of institutions, buildings and locations and so on?
Maurice Frankel: Yes. Whenever you see a request involving animal testing going to the commissioner, you see very clearly that the identities of the researchers are protected under the exemption for personal information and also under section 38, which deals with danger to the health and safety of an individual. In addition, the staff have protection under a statutory secrecy provision in the legislation on animal testing; if anything, that provides more protection than is necessary because it protects anonymised information as well as identifiable information.
Q51 Yasmin Qureshi: On animal testing, would information such as how many dogs were killed or experimented upon be the kind of information that could be requested, or is that not permissible?
Maurice Frankel: My understanding is that such information would normally be available in the published study anyway. In other words, if you do some research to test something, the number of animals that you tested it on would be a critical piece of information; you could not publish the results without saying how many animals you had done it on because other scientists would not be able to evaluate it. The animal welfare organisations are after the conditions in which they are kept-not the numbers of animals that might be killed-and the nature of the particular procedure carried out on them and the extent to which they are protected from unnecessary suffering.
Q52 Yasmin Qureshi: I asked it very quickly, but that is what I was talking about. Is that the kind of information for which they ask on suffering and how they are kept? That is what you say they are asking for. That is given, is it?
Maurice Frankel: At the moment, that is a battleground. In fact, it is often withheld because there is a statutory protection in the Animal (Scientific Procedures) Act 1986 that prohibits the disclosure of information supplied to the Home Office by the body doing the research. In cases where the information has been requested in anonymised form, it would not identify where the research had been done or who had done it, but you would at least have some insight into whether proper procedures had been followed. I know that the British Union for the Abolition of Vivisection has submitted evidence to the Committee; I have read the cases that it mentions and I have a lot of sympathy for the argument that it makes. That organisation is entirely lawful in the way it goes about things; it does not get involved in attacks on scientists.
Q53 Chair: The context for this battle was direct physical attack and intimidation of people working in this field. That resulted in another piece of legislation, which interacts with the FOI legislation.
Another thing that Parliament probably did not have in mind when passing the legislation was the ease that new technology would bring to access under freedom of information. We were probably all thinking of writing a letter to a public body demanding release of information rather than a company being able, almost automatically, to submit e-mails to every relevant authority in the land asking for datasets of information-or, indeed, the facility that Mr Skene’s organisation provides. I think particularly of the former, which is a business activity. A company is getting for free public datasets and research. Is that a problem or not?
Alex Skene: Media companies are private companies and they use FOI for private gain in selling newspapers. The transparency agenda is also about creating economic benefit from information that has been released. They want to encourage people to use this information. It has already been paid for once at the time it is created; it is paid for out of our public taxes, because we fund the public bodies that are generating and collecting the information. There is a lot to be gained by having that wealth of information out in the public domain so that people can use it and create economic benefit for the general public. If, for example, the datasets are not being released voluntarily under the provisions of the Protection of Freedoms Bill, you have to resort to the Freedom of Information Act to ask for particular datasets.
Q54 Chair: Does anyone else have any thoughts on that?
Maurice Frankel: The Government took a deliberate decision not to distinguish between commercial requesters and other requesters when the Act was introduced. There is that kind of distinction with charges in the United States and in some other countries, where commercial users pay more than the press or public interest organisations or ordinary requesters. I do not have an objection to that, but you have to look carefully at who will be classed as a commercial requester. In the United States there have been constant battles, on the lines suggested by Alex, in which newspapers and authors are classed as commercial requesters, and voluntary organisations that ask a membership fee and put information in a newsletter that they send to members become commercial requesters. So you have to be very careful about those sorts of decisions following on.
Q55 Steve Brine: Surely anyone could become an individual requester. You get around it, do you not?
Maurice Frankel: Yes, exactly. That is another reason why it is very easy to circumvent that type of provision. There was sense in the Government’s decision to say that they do not care who is making the request but will treat everybody in the same way.
Q56 Steve Brine: Was it just realism in their decision? They recognised the limitations on it.
Maurice Frankel: Yes.
Alexandra Runswick: On the technology point, it is very positive that technology means that it is now very easy for individuals to ask for information from public authorities. I also think that public authorities can make better use of technology to respond to FOI requests more cheaply and cost-effectively than they do, both in the proactive publication of data and in how they reply to requests or provide data that is in a more searchable and user-friendly manner.
Chair: Thank you very much, Ms Runswick, Mr Frankel and Mr Skene. We are very grateful to you for your help. We now have some more witnesses to talk with this morning.
Examination of Witnesses
Witnesses: Professor Robert Hazell CBE, Director, UCL Constitution Unit, Dr Ben Worthy, Senior Researcher, UCL Constitution Unit, and Jim Amos, Honorary Senior Research Associate, UCL Constitution Unit, gave evidence.
Chair: Professor Hazell, Mr Amos and Dr Worthy, I welcome you. We have already received evidence from you, for which we are very grateful, and we have seen your earlier work on the subject. Indeed, Mr Hazell and I have exchanged evidence on it over many years as it has developed. We are grateful for your help this morning. Mr Brine will start the questions.
Q57 Steve Brine: Welcome, gentlemen, and thank you very much for your time. I shall start with Dr Worthy and Mr Amos, if I may. It will become clear why. By all means set out what you understand them to have been, but to what extent were the objectives of the Act realistic, and have they been met?
Dr Worthy: To what extent were they realistic and have they been met? I think there were some very wide aims for freedom of information. We calculated that there were six key aims. The two core aims were to increase the transparency of Government and to increase accountability. Flowing from them were another four secondary objectives, which were to increase public understanding, to improve the quality of decision making, to improve public participation and to improve public trust.
We concluded that, at both local and central Government level, freedom of information has met its core aims. It has made local and central Government more transparent and more accountable-transparent not only in terms of the information provided but in fostering a more open culture and it has improved accountability. On the other aims, things are a little more complex, partly because decision making, participation and trust are influenced by so many factors other than freedom of information that in some senses it is very difficult to isolate them.
Professor Hazell: We identified the six objectives that Dr Worthy has referred to by looking at ministerial speeches, Green and White Papers and the debates during the passage of the Bill through Parliament, so we are pretty confident that those were the main objectives of the Government at the time that FOI was introduced 10 years ago. As Dr Worthy said, we could find no strong evidence that any of the four secondary objectives have been met. I do not think that that was a failure of FOI, because it did succeed strongly in its two primary objectives. It has increased transparency and openness, and it has increased Government accountability. The fact that it failed in the more ambitious secondary objectives, as your question perhaps implies, now tells us that FOI was oversold at the time.
Q58 Steve Brine: We shall come back to that. Mr Amos, what is your view?
Jim Amos: There is not a lot that I can add, except to say that there is a distinction between the objectives for the Act set by Parliament and Ministers and the objectives that were perceived by the people who operate it. You may want to come back to that.
Q59 Steve Brine: Yes, we certainly will. Professor Hazell, you are a professor of British politics and government. You rightly assume that I was getting at something else-whether it was oversold. In your opinion, were the objectives of the Act ever political?
Professor Hazell: Not in a party political sense.
Q60 Steve Brine: You will have read the comments that the former Prime Minister made in his autobiography, saying what he now feels about the Act. He refers to it several times in the book. He talks about its desirable impact in exposing the "Tory sleaze", saying that it was quite helpful for him as a new Government to expose. I wonder whether, in your reading of the Act, there were ever political objectives to it, and did it serve those purposes?
Professor Hazell: No, I see no such political incentive, either at the time or with hindsight. The objectives of the Act were genuinely believed by the politicians involved at the time; remember that there were several, including Lord Irvine, Jack Straw and David Clark, the latter being Chancellor of the Duchy of Lancaster for the first year of the new Government. Don’t forget that the Labour party had had a commitment to introduce a freedom of information Act in every manifesto going back to 1974.
Steve Brine: Good point.
Professor Hazell: So this was a very long-standing political commitment.
Q61 Steve Brine: Mr Blair also said in his autobiography that he would often say to civil servants, "Where was Sir Humphrey when I needed him? We had legislated in the first throes of power. How could you, knowing what you know, have allowed us to do such a thing so utterly undermining of sensible government?"
What did you think when you read that? Did you think that the Act undermined sensible government? Mr Blair clearly does now.
Professor Hazell: We are coming to what, in shorthand, we might call the chilling effect. I am looking to you, Chairman, and asking whether you want us to go into this. Forgive me, but if we do so, it will need exploring in a bit of detail.
Chair: We intend to come back to it; perhaps we can park the chilling effect until later.
Q62 Steve Brine: There is a lot of talk about risk registers in this Parliament in regard to tomorrow’s debate specifically. Sir Gus O’Donnell has expressed opinions about the Act. When asked whether the FOI Act was preventing proper discussion between Ministers and civil servants, he referred to risk registers and gave as an example some of the contingency planning that may be going on within Government at the moment in the case of a nuclear Iran. He said that it would not be desirable for that to be out in the public domain because of the impact that it might have on the politics of the region. I wonder whether the witnesses might comment on FOI and risk registers.
Chair: We are now into the chilling effect. We have started, so we shall finish.
Professor Hazell: Forgive me, but would you like us to deal with it properly?
Professor Hazell: One has to have a sense of proportion about the chilling effect. We looked very hard for evidence of the chilling effect in all the interviews that we conducted, in a big two-year research project looking at the impact of FOI on Whitehall and in a related project commissioned by the Information Commissioner. We interviewed, in total, about 100 Ministers and middle and senior-ranking officials. What they told us, in sum, was that, yes, there has been a deterioration in the quality of record keeping in Whitehall, but that, no, on the whole FOI has not been the cause of that.
What have been the causes? In Whitehall Departments, departmental registries barely exist now and the record-keeping function has been greatly downgraded because of successive staff and resourcing cuts. There have also been huge changes in how government works. When I was a civil servant in Whitehall 25 years ago, most work was done on paper; I had a departmental file, and minutes and drafts were put on the file in chronological order; it was properly indexed, and it went to the registry. That was the record. You will all know that, in the modern office world, a huge amount is now done by e-mail, and it has been very difficult for electronic record keeping to catch up and maintain a departmental record in the same effective way as when we had paper files.
A third factor is the sheer pressure of business in modern government. Whereas when I worked as a civil servant I got a response from the Minister in a minute from his private office, that response may now come in the form of a phone call or even a text. Those are all much more important reasons why the quality of record keeping has declined.
We asked every person we interviewed whether FOI had contributed to a chilling effect, and the majority said that it had not. We then pressed those who thought that it might have done, asking, "Has it changed the way that you work? Has it changed the way that your colleagues work?" We found very little direct evidence that FOI has contributed to a diminution of the record.
I turn to the Cabinet and Cabinet discussions. The relatively few Cabinet Ministers that were interviewed were genuinely apprehensive that they risked losing the safe space in which Ministers could discuss and argue in private, without the risk of those discussions being made public. But, again, we must be very careful to distinguish what is a fear of FOI and what is a fear of leaks, because the two are often conflated when they are completely different.
It is well known that in the Government led by John Major there was a group of Cabinet colleagues who, on the question of Europe, were not wholly loyal. My understanding is that, in that Cabinet, it was extremely difficult, if not impossible, to have any discussion about Europe because of the fear of leaks. There was no FOI Act in force then, but, in effect, that Cabinet did not have a safe space in which it could discuss a very important set of policy issues.
Q63 Chair: If we can go a little further with that, when you were questioning civil servants and Cabinet Ministers, to what extent were they describing the situation as it was, bearing in mind that it is a fluid situation in which the grasp or reach of freedom of information gets extended-in many cases in a welcome way? For example, on the risk register point raised by Mr Brine, one of the consequences of discussions this week could be that risk registers will, in practice, become exempted from freedom of information. Were people talking about the situation as it was or the situation as it was developing?
Professor Hazell: From memory, we did this project and the interviews in 2008-09.
Dr Worthy: One of the difficulties is that it was just after the attempt to access the Iraq Cabinet minutes. That may have been a problem in that it was at the forefront of a lot of people’s minds when they were discussing the matter.
Q64 Chair: Risk registers is an interesting example that we will need to consider in the course of our inquiry of a type of activity within Government. I have heard it described as testing policies to destruction in the analysis of them, but Ministers might argue that it would be done differently, on paper at least, if it were known that it was going to be published.
Professor Hazell: Yes. I can only say that almost all of the officials whom we quizzed very hard about this-I shall turn to Dr Worthy in a moment, because he conducted the interviews-said that it had not changed their behaviour in any significant way, and it certainly had not affected the quality of the advice that they put to Ministers in submissions or the way that they couched their submissions. We should remember that in Whitehall, every evening, hundreds of submissions go up to Ministers, and the statistical likelihood of any one of them being the subject of an FOI request is probably a fraction of 1%. Most of the time, it is not anywhere near the forefront of an official’s mind.
Q65 Chair: Would that change if freedom of information got further into the system?
Professor Hazell: Because of the exemption provisions, most of which are subject to a public interest test, almost all information and advice could be the subject of an FOI request. I am simply saying that, for the vast majority of the time, it is not; most of the officials know that it is most unlikely to be requested. When they are working on something that is very sensitive and they are politically astute, they might think that somebody might ask to see it under FOI. However, coming to our written submission, one of our iron laws is that the Government still hold most of the cards. If they do not want to disclose, they can play things long. They can refuse a request, contest the matter with the Information Commissioner and appeal to the Information Tribunal; typically, months and in some cases years may elapse before the information is forced out of the Government if they do not want to disclose and are determined to play it long.
Q66 Chair: They still have section 53 at their disposal.
Professor Hazell: Yes, indeed.
Dr Worthy: May I add a few reflections on the chilling effect? It is still a very powerful myth, and there is a great deal of anecdote about it. The interview with Gus O’Donnell was very interesting in that, when the interviewer pressed him on whether he ever indulged in what is called fudging, he said, "No."
Q67 Mr Llwyd: He would, wouldn’t he?
Dr Worthy: Another important point about this discussion on the chilling effect is that it presupposes that the politics of decisions are actually on paper. You will know far better than I do that, for much of the time, the politics are never on paper. That was something that came out very strongly at local government level as well. At both local and central Government level, we found that officials were much more likely to be concerned about the consequences of not having a record if their boss or somebody external to them audited them than they were about having to alter a record in some way. It was the fear of not having a record that they thought would get them into much more trouble. They felt that an audit trail was a protection for them rather than something that could be potentially damaging.
Q68 Mr Llwyd: May I ask about the practical operation of the Act? Do you believe that the appropriate limits for cost and time spent on requests are about right, too long or too short? What would you say to that?
Dr Worthy: One of the difficulties when we spoke to local government-Jim can help me out with this-is that, when we asked whether they abided by the appropriate limit, most authorities said that they would process anything that was not "manifestly unreasonable". In a study by the Scottish Executive, in which they calculated a sample of requests, it found that lots of the requests that authorities processed went far beyond the limits anyway. The difficulty with having a limit is whether authorities and public bodies actually go along with it or not. As I say, most local authorities are happy to process anything that is not unreasonable or huge.
Jim Amos: I was given a very interesting example by a senior financial officer. The local authority had a request for expenditure on taxis. It was a terribly difficult job, and he said that they could have refused it because it was far over the limit because there was no separate recording of taxis; someone had to go through all the expense claims to separate out taxis. Anyhow, they did it-they did not turn it down-and then they thought, "Actually, it would be quite useful for us to know that." They therefore introduced an accounting code to separate out taxi expenditure, and they can now find that out very quickly, and the authority can know as well.
Q69 Mr Llwyd: With regard to what can be regarded as vexatious applications, I know that at least two of you were sitting in on the last session when there was mention of paranormal activity, alien sightings, and this, that and the other. Dr Worthy referred just now to things that may be "manifestly unreasonable". Should there be some form of amendment in practice to allow authorities to say that a request is manifestly unreasonable, vexatious or ridiculous and therefore they do not need to spend a lot of time or money on it? Do you think that that would be appropriate?
Jim Amos: That is a very difficult area, but authorities are typically very wary of claiming it. They have had reasonable reason to be wary of claiming it, but much more robustness in response to awkward, difficult or vexatious requests earlier on would have helped enormously. No one wants to be part of a test case, so everyone waits for someone else to do it. Meanwhile, the problem multiplies.
Dr Worthy: To clarify the matter, "manifestly unreasonable" generally refers to the size of the request. I agree with what Maurice said earlier about the difficulty of vexatiousness. As Alex said, one of the problems is that it is difficult to draw a line and say, "This is unreasonable or silly, and that is not." Sometimes, the value of the request is very much in the eye of the beholder, the requester, and what consequences it may have. It would be extremely difficult in practice to draw an objective, non-political line between types of requests that you may think are frivolous or silly and those that are not.
Q70 Mr Llwyd: I take it that there is no evidence available to show that some individuals routinely go around asking somewhat unreasonable or silly questions.
Jim Amos: Almost everyone that I have met in local authorities would say that one or two individuals use FOI as another tool to beat them with, having exhausted every other possibility. The concern that comes up is that staff are mostly very helpful; they are trained for it and expect to be helpful and reasonable to people who are unreasonable. I did a study some years ago for the Health and Safety Executive, and we found a case of someone having been an hour on the phone trying to be helpful and reasonable to someone who was being extremely difficult. My advice to people in that situation is that they should immediately tell the person to transfer the call to a more senior person, who would deal with it professionally and robustly by saying, "Please put this in writing. This is the address. If you want advice and assistance, this is what you do." The staff should not go on, because it can be so damaging to their morale to be reasonable and helpful to people who are not.
Q71 Mr Llwyd: In effect, with regard to the notion of trying to weed these people out-for example, by charging fees-there is no need for any of that, is there?
Jim Amos: I think that robust professionalism should deal with it in a few minutes.
Q72 Chair: Are not some of the more absurd requests answerable by saying that the local authority has no records or documents relating to the matter?
Jim Amos: That is then very easy to answer. You just say that. Sometimes, it needs to go to a more experienced person, more confident of the law and more confident of their support within management, who will deal with it professionally, be happy to stand by it and keep a record of what they have done.
Q73 Mr Llwyd: I think what Sir Alan is saying is that, with regard to alien sightings, for example, it is not going to take a lot of time to deal with such a request.
Jim Amos: Quite.
Professor Hazell: In part, your question is what the burden is of FOI on public authorities. It is quite important, in terms of the big picture, to look at the statistics. They show that in the first seven years of FOI the volume of requests to central Government has almost doubled and to local government it has gone up much faster; it has more than trebled. There has been a significant increase in demand. One way of curbing that demand, if the Government were ever minded to do so, would be to introduce an application fee. You probably know that that was done in Ireland, and the effect on the level of demand in the immediately subsequent years was quite marked. Demand in Ireland has subsequently come back to the pre-fees level, so it does not grant public authorities lasting relief. However, as you asked whether fees should be charged, I believe that the Government and this Committee should both recognise that charging fees is one way of managing overall demand.
Dr Worthy: We do not agree 100% on this. I began some work in Ireland, and we found after only a few interviews that one of the difficulties with fees in any FOI system, as Maurice pointed out earlier, is that there are ways round it. A number of Irish FOI officials to whom I spoke found that when fees were introduced they would get 10 questions in one request, so the statistics may not tell the whole story. However, the officials seemed to believe that fees had an effect on two particular groups-the media and businesses. Businesses are quite a strong cause for concern at local level.
Q74 Chair: It is almost counter-intuitive, is it not? You would have expected it to have more effect on the general public than on commercial organisations.
Dr Worthy: If the secret plan with fees is to stop requesters that are politically uncomfortable, then Ireland is perhaps a good example of why it would not work. They have had their very own expenses crisis, having exposed collusion between former Prime Ministers and bankers. If it is a secret wish, it does not work.
Q75 Mr Llwyd: As a matter of interest, what level of fees are they charging in Ireland?
Professor Hazell: I think it is €15.
Jim Amos: If I remember rightly, in Canada there was a report some years ago-they then charged fees-and if you paid a fee it was formally an FOI request. However, many said, "Look, if you really want this as a formal process, give us the fee; otherwise just ask us and we will give it to you informally", because there was so much administrative work to handle the payment. There is another way. If the issue is the burden rather than the number of requests, the question of how efficiently and effectively authorities handle requests is a big factor. In local government, we have seen the average cost coming down markedly, but there is a big gap between those who handle requests effectively, taking between one and six hours each, and those who handle them much less effectively, who take more than 10 hours. If the knowledge of the better performing ones was spread more widely, it would make an enormous difference to the burden.
Dr Worthy: One study of transparency policies in the US coined a really nice phrase about the costs. The difficulty is that people, particularly those at the top of organisations, see transparency as something with concentrated costs and dispersed benefits. As Maurice pointed out, one of the difficulties is seeing the benefits in concrete terms in the same way that you can easily and quickly see the financial costs and, in some cases, the political costs of openness. There may be a bias in the discussion about how much FOI costs, and of course the large attempt to cost FOI in 2006-07 came in for a lot of criticism for the way it went about doing it.
Q76 Mr Llwyd: In a way, it would also be a cost-benefit analysis, would it not?
Dr Worthy: Yes.
Q77 Mr Llwyd: This may be too broad a question, but I shall put it anyway, and you can decide whether or not to respond. Putting aside the question of fees, what is the driver for the rather dramatic increase in FOI applications? Will there be a plateau effect at some point, and, if so, when do you anticipate it happening?
Professor Hazell: All countries see an increase in the volume of requests in the early years of FOI. I first started studying FOI over 25 years ago, when I was a civil servant. I had a travelling fellowship for a year, and I went to Australia, Canada and New Zealand about three or four years after they had first introduced FOI. In Australia and Canada, where they kept statistics, they saw quite dramatic increases in the first three years or so. The UK is no exception. People gradually learn about the existence of the Act and read about it through the media, and so it builds up in that way. I must look to see whether I can find the statistics on when it plateaus, asking Dr Worthy to speak while I do so.
Dr Worthy: We asked that specific question of local government by conducting interviews across 16 local authorities. I clarify that by saying that when you are studying FOI it is frustratingly difficult to get access to requesters and to speak to them about their motivation, partly because of the way in which the Act is designed. However, we concluded that, as Robert said, there was a growing general awareness of its existence, just as there was with data protection in the late 1980s. Of course, media stories such as MPs’ expenses really put FOI on the map, but at the local level there was some very interesting use of FOI that was quite high profile in people’s local regional press.
One of the interesting things that many officers told us was that FOI requests come in waves. They cluster around particular issues. For example, when it snows there will be a spate of requests about gritting or holes in the road; there will be a spate of requests about RIPA and surveillance legislation when those stories come up. It is not one group making requests. Lots of people are quite interested in these subjects.
I shall make Maurice very happy now, because I support something that he said towards the end of his evidence. He said that a lot of requests are for things that are important to the person asking rather than being about wider political matters, and this may be one reason why FOI is increasing so quickly at local level. People find it a useful tool to help in their everyday lives. I am talking here about allotments, parking and the quality of roads-things that sometimes go under the radar. It is not necessarily how politicians saw FOI working, but this is where the Act is having an impact on people’s lives. All politics is local in a sense, and a lot of FOI requests are local and about micro-politics.
Q78 Mr Llwyd: Professor Hazell, did you want to add anything about the plateau?
Professor Hazell: Forgive me, but there is not a clear pattern. I have the figures only for Australia and Canada. In Australia, in the first year, there were about 19,000 requests in total; 12 years later, in 1994-95, the number had doubled to 37,000. In the first year in Canada, they had only about 1,500 requests, but in year 12 the number had multiplied by eight. Australia introduced fees after three or four years, and that is possibly one reason why the level of demand did not climb so steeply.
Mr Llwyd: I am grateful.
Q79 Karl Turner: I am conscious of the time, Sir Alan, so I shall be as quick as I can. How does freedom of information in England and Wales compare with similar jurisdictions? Why do you think it might be that we dragged our feet in introducing the statutory right to access information?
Professor Hazell: In terms of the history, we were marching in step with Australia, Canada and New Zealand, our close Westminster cousins, until the very end of the 1970s. Under the Labour Government led by Jim Callaghan, during the years of the Lib-Lab pact, which you, Sir Alan, will remember well, a private Member’s Bill was introduced by a Liberal Member. That Bill, which was officially supported by the Government under the pact, would have introduced FOI. When the Callaghan Government fell in 1979, that Bill fell with it. We know there was a change of Government. The new Government were led by Mrs Thatcher, and she was resolutely against FOI, and it went into cold storage for the whole of her Administration. It began to surface more strongly in the early 1990s under the Government led by John Major, in particular with the code of practice on access to Government information, which, in effect, was a non-statutory freedom of information code.
Q80 Karl Turner: How do we compare with similar jurisdictions?
Professor Hazell: We compare very well. I have written an article, which I can submit to the Committee, in which I took just one issue-namely, access to policy advice and the internal deliberations of Government. In it, I made quite a detailed comparison with the situation in Australia and Canada. The application of the exemption provisions and how they have been interpreted by the Information Commissioner led me to conclude that we have a rather more generous regime than those two countries.
Q81 Karl Turner: We have heard something about the Irish model and fee charging. What lessons should be learned from that, if any?
Professor Hazell: As I have indicated, one pretty basic lesson, if the Government were ever minded to try to limit the overall volume of FOI requests, is to look at what happened in Ireland after they introduced fees. From memory, the total number of requests reduced by almost half.
Dr Worthy: I point to evidence given to you by the Centre for Public Scrutiny. When talking about the evolution of FOI, you should remember that at the local level there has been all sorts of legislation that has allowed access to information, documents and meetings since the 1960s, if not before.
Q82 Chair: That includes a private Member’s Bill by Mrs Thatcher, if one goes back far enough.
Dr Worthy: There has been a build-up there. In terms of comparison, Maurice cited a league table of how FOI performs. Professor Hazell and I wrote an article that took a look at a few of the other Westminster countries and compared them, and we are happy to send you a copy. One of the difficulties with comparing laws and statistics is that it does not get to the cultural differences.
One of the things that came out from local and central Government was the importance of leadership. We can discuss parts of the laws and how they work, and whether they can be amended, but one of the crucial drivers for whether FOI works is senior buy-in in public authorities and also nationally. Two Prime Ministers have been very supportive of FOI, and officers at local level told us that that makes a difference, particularly having somebody senior in your local authority who is prepared to act. For example, one even chased up people who were not co-operating on the telephone. Leadership is absolutely crucial to making freedom of information work. The second factor is probably the use of technology and the merger between open data and FOI that will be extremely important.
Q83 Yasmin Qureshi: We have received evidence that some organisations, such as public authorities or hospitals and so on, quite often receive FOI requests for information, but, if the person had done their research and homework about the company or organisation, they would have found the information, and they are just being lazy. From your analysis, is there any truth in that argument?
Jim Amos: There are complaints about that, but, if someone is asking for information that is on our website and they want us to sort it out for them, they have a very simple answer to that. "Here you are. This is the link. Help yourself." If the person does not have those skills, they might direct them to a local library, for example. They complain about something that they do not have to do. I have referred before to officials going to great pains to be more helpful than they need to be. In a way it is very good to be that helpful, but, if you are being helpful and then you complain about the work that you do, the balance is not quite right.
Q84 Chair: It sounds like the experience of Members of Parliament as well.
Dr Worthy: Paul Gibbons, FOI Man, who submitted evidence to you, is a blogger who has a 10-point piece of guidance for requesters. That is an extraordinarily good starting point for helping requesters to understand how to go about things. Ultimately, one of the reasons why publication schemes have not taken off in the way that many had hoped is that it has been superseded by the internet search engine and the fact that people can find a way of asking a question rather than looking for the information. I do that myself in all sorts of circumstances, and I am not sure that much can be done about it except to ask people to flag up the information.
Q85 Nick de Bois: Mr Amos, do you think that the public may lose out in their search for freedom of information as more and more public services are contracted out by local authorities, or even by the Department of Health, where we may have more providers in the health service? Do you think that they will lose out in having access to freedom of information that otherwise, exclusively under the public sector, they would have been able to get?
Jim Amos: I certainly think that they will. It is a big risk, and I heard the matter being discussed a little with Maurice earlier. I would not claim expertise in this area or be able to give you a considered answer, so I will ask my colleagues to help.
Dr Worthy: The matter was often discussed in my interviews at local government level. One of the concerns is that they could write into contracts a provision to comply with FOI. When we asked the question, two responses were given about private companies on requests that covered things done by private companies rather than the authority. The first thing that a lot of people said is that most companies are very co-operative, particularly the public-facing ones. It was only in a small percentage of cases that they caused trouble, but I got the sense that, when they did cause trouble, they caused real trouble.
Q86 Nick de Bois: As I understand it-I am happy to be corrected-if public money has been spent with an organisation, there seems to be no obligation presently for it to divulge information. Is that correct, or would we have to change the Act to effect that, as wider provision goes out? Let us not forget that is not only private companies; it includes social enterprises, who may not have the resources.
Dr Worthy: It is all about who holds the information. The local authorities were telling us that, from now on, they wish to do this; the matter was raised in the point about what will happen in future with lots of authorities contracting out. The concern is that, even if they put it into the contract and the contract was huge, and the company was only not playing ball on this one issue, they would not necessarily imperil it. That was the question about the future. Of course, Scotland went into this in great detail, and they first raised the possibility of extending FOI coverage by changing the Act to cover private companies.
Q87 Nick de Bois: They have not done so, have they?
Dr Worthy: No.
Q88 Nick de Bois: Would you like to add anything, Professor Hazell?
Professor Hazell: Only that it is quite a laborious process, involving extensive consultation, before the Act can be extended to new bodies. I do not know the reasons why Scotland has not extended it, but that may be one factor.
Q89 Mr Buckland: The use of e-mail makes it very easy for a requester to make an application. I wonder what your thoughts are on whether the current framework builds in enough consideration for the ease with which someone can make a request as opposed to the difficulty that authorities sometimes have in responding.
Professor Hazell: Implicitly, we are coming back to the whole issue of fees. My hunch is that most requesters have little or no idea what burden an FOI request places on public authorities. We know that it is very difficult properly to estimate the costs, but from the little work that has been done we have a guesstimate that FOI requests, on average, might take some six or seven hours each, so that is a day’s work. If anything, my guess is that that is an underestimate, because the comparative figures from the two other countries that I have mentioned-Australia and Canada-are much higher than that.
In Australia, after 12 years of operation-we must remember this includes the equivalent of our Data Protection Act requests, which are much simpler to respond to-they reckon that the average time spent per request is 12 hours. In Canada, under their Access to Information Act, they reckon that the average time per request is about 50 hours.
However one tries to calculate the cost, and knowing that the answer is not in any way precise, FOI requests carry a burden. Under the present system-and I think my colleagues can help me here-very few authorities at the bottom of a response letter say to the requester either, "It has taken us x hours to process your request", or, "In our authority in the last year it has taken us, on average, x hours per request." There is almost no public education of requesters to explain to them that FOI requests carry a cost.
Dr Worthy: The unit has put together a short piece looking at some of the different ways in which costs are calculated. If you want to find out how much an FOI request costs, you can make an FOI request to Rotherham metropolitan borough council, because it now tells you how much each request has cost it. One of the difficulties is the variability of the estimates, as Robert pointed out. We had a few converted into sterling; in England it was calculated at £293; in Australia it was calculated as an average of £748 per request-some interesting calculations there; and in Scotland, where they recently did an exercise, it was £189. It is very difficult to pin it down, and they all use different methods to calculate it, but we are happy to pass it on to the Committee.
Q90 Mr Buckland: It may help. You may have heard some of the previous answers about proactive publication and the fact that it could yield a cost saving. What are your thoughts on that, and do you have any data to assist us?
Jim Amos: We probably have differences of view on that. I would want to defend our estimates as being reasonable around the six-hour level when compared to other countries. There are reasons why they are very expensive, for instance, in Canada. If you build a big bureaucratic process around it, it becomes expensive.
Early on in our annual surveys of local government, one of the first responses that we got showed somebody with an average of two hours and someone with an average of 50 hours. I thought that was ridiculous, so I rang the FOI officer in both cases. I can comprehend why the two hours was only two hours; it was an experienced person who obviously had the confidence of the senior people, who would look at the request, go and see the appropriate senior officer and, yes or no, decide quickly. The other was in a very large council, with a junior person dealing with it, who would have to send it with an advice note to someone above; it would have to go up two levels before it could go across to another organisation, and I could well understand how that would be 50 hours. Bureaucracy and the cost-effectiveness with which the exercise is managed matters a tremendous amount.
Q91 Mr Buckland: I have read the paper that you submitted to the Committee; you have done some research into the identity of requesters. I know that you are doing your best, having asked various authorities and then come up with estimates, and I accept that it will be difficult, but your central Government percentages, for example, come to about 78% of the total. I know why that is; that is difficult. Why is it important that more work should be done on identifying the type of requester? How will that assist in improving policy in this area?
Dr Worthy: Lots of FOI officers say over and over again that, the more they know about why somebody wants the information, in many cases the better they can process it. When we have used FOI as a research tool, we cram the e-mail full of information to make it as easy as possible. From our point of view, we would love to know more about the requester, because they are the key group. They are the key to the impact of all of these objectives, whether it is transparency, trust or helping them to engage in their political process, and we would love to know much more about what they think and why they use it.
We have touched on it only lightly, but we are finding that there is a huge variety of motivations for using FOI. It is much wider than the idea that it is a political tool; it is used for everything from hobbies to research for a book, and even academics are using it. One of the things that has come out-this is, again, based on the qualification that we do not know very much-is that the public are the largest group using FOI, and it is not only the usual suspects. A small group are the usual suspects, who are always engaged and who always turn up to the local authority meetings, but a wider group use it for personal interest and benefit, and it is often to do with everyday micro-politics.
Professor Hazell: May I add something in response to your very first question? From memory, you asked whether it would help reduce the volume of FOI requests if public authorities proactively published more information. That is intuitively plausible, but I think it is unlikely to help significantly to reduce the burden because, as Dr Worthy said, the extraordinary variety of FOI requests and the variety of motives make it terribly difficult for authorities to guess the sort of things that requesters might want. The most that they can do, and some of them do this, is to publish on their websites what are called disclosure logs. They publish lists of all previous requests, and you can click on them and find out what the request was and what information was disclosed; it is, as it were, a back record of things that people have asked us.
Dr Worthy can tell you about an exercise that he tried with his students, getting them to predict what kinds of things public authorities ought to publish in order to cover the requests that people make. What was the result?
Dr Worthy: The students were very surprised when looking at the disclosure logs at the sheer focus of some of the requests. They are often very technical or focused on a particular issue. When you read the requests, you often see that the requester has a great deal of expert knowledge in that area-sometimes to such an extent that I cannot understand it as it is so focused on one issue. My students were absolutely astounded because they expected it all to be about the big political issues, but it is being used as a precision tool.
One important thing to add about FOI, particularly at the local level, is that it is not often used on its own but is often used as part of wider campaigns. For instance, about a planning application, the FOI is just one tool they will employ, along with contacting the local MP, writing to the press and finding information through other routes. One of the reasons it is difficult to assess the impact of FOI is that it is often caught up in lots of other mechanisms. It is more like a good spade than a sword.
Q92 Mr Buckland: Hitting on the point that you made earlier about the difficulty of getting information-and we have talked about datalogs-do you think that, if we had a more systematic mechanism to collect the types of requests being made, it would help enlighten public bodies as to what could be proactively published, or are you saying that there are too many focused applications to make it plausible?
Professor Hazell: Public bodies are sensible about this. Dr Worthy can correct me if I have got this wrong, but the Ministry of Defence was surprised at the number of requests that it received about UFOs-unidentified flying objects. I believe that, as a result, it now publishes the information proactively. If you see that you are getting a pattern of requests, it makes sense, but those patterns are the exception. What Dr Worthy has been saying, I think, is that it is very difficult to discern much of a pattern in most requests, so for public authorities to guess what people might want to know would be a waste of time.
Jim Amos: I give the example of a local authority that knew it was going to engage in a major construction project that would disrupt traffic. It knew that, so it decided to put up on its website all the information that it had on the work, and that turned out to be a very good thing to do. In that rather specialised situation, it is possible to predict things that are going to cause concern, and, rather than face lots of difficult questions, everything can be put on the website.
Chair: Thank you very much, Professor Hazell, Dr Worthy and Mr Amos; we are really grateful for your very helpful evidence this morning. This is going to be a most interesting inquiry. Thank you.