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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 1849-ii
House of COMMONS
TAKEN BEFORE the
post-legislative scrutiny of
the freedom of information act 2000
tuesday 28 February 2012
Professor Ian Diamond, Dr rodney Eastwood and Professor trevor j McMillan
Martin Rosenbaum, Doug Wills, David Higgerson and David Henke
Evidence heard in Public Questions 93 - 197
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Taken before the Justice Committee
on Tuesday 28 February 2012
Sir Alan Beith (Chair)
Mr Robert Buckland
Nick de Bois
Mr Elfyn Llwyd
Examination of Witnesses
Witnesses: Professor Ian Diamond, Vice-Chancellor of University of Aberdeen, Chair of Research Policy Network, Universities UK, Dr Rodney Eastwood, Registrar of Imperial College London (on behalf of the Russell Group), and Professor Trevor J McMillan, Pro-Vice-Chancellor for Research, Lancaster University, Chair of the 1994 Group Research and Enterprise Policy Group, gave evidence.
Chair: I welcome Professor Diamond, Dr Eastwood and Professor McMillan. We are very glad to have you with us to give evidence in our work on the Freedom of Information Act 2000.
I declare an interest because it could arise in relation to one matter. I am a member of the court of Newcastle university. Does anyone else have an interest to declare? As no one does, I call on Mr de Bois.
Q93 Nick de Bois: Good morning, gentlemen. I start with a general question to all three of you. Perhaps, Professor Diamond, you would like to answer first. To what extent do you think the Freedom of Information Act has made universities more accountable and more transparent? As a preamble to that, do you think that universities previously had a culture of secrecy?
Professor Diamond: May I say that that is entirely the right question to start with? I have to say, very clearly, that universities do not-I repeat, they do not-have a culture of secrecy, and they never did. Indeed, over the last few years universities have been driving forward an open access agenda to make the results of published work, for example, freely available to anyone who is interested. It would be quite impossible to delineate the difference between changing culture with regard to transparency and the Freedom of Information Act; the Act, in itself, has not had an impact on the overall culture of transparency that universities had and which was developing over the last few years. I would add that universities have taken the Freedom of Information Act incredibly seriously, and I am sure that we will discuss that as we move forward this morning.
Dr Eastwood: I concur with Professor Diamond. The whole point of universities is to publish their findings and results, and education. It was never the case, and is not the case, that there is any cultural super-sleuth involved. FOI has just formalised the process by which the information is made available.
Q94 Nick de Bois: Thank you. Is there anything that you would like to add, Professor McMillan?
Professor McMillan: Only that the FOI has to be seen in the context of quite a big jigsaw of approaches to transparency within universities. We are publishing data all the time, through HESA and, increasingly, things like the national student survey, and we will be doing more for students coming up this summer. There are lots of things developing around the culture.
Q95 Nick de Bois: I do not want to draw any conclusions from what you say to my next question, Professor Diamond, but, given that you say you have a culture of openness and transparency, has the Act had no effect on decision making within universities? If you think it has had an effect, would you characterise it as positive-that is, building on what you were doing-or has it been a negative effect?
Professor Diamond: I shall be absolutely honest and say that there has been a positive effect, particularly with regard to record keeping.
Q96 Nick de Bois: It has improved.
Professor Diamond: Record keeping and record management have improved; we have been very much helped by the Joint Information Systems Committee, which works for all universities in enabling that to happen. On the other hand, most universities would say that there has sometimes been a negative impact in the way that complex and difficult decisions are minuted in meetings, because of the expectation of freedom of information requests potentially coming later.
Q97 Nick de Bois: Would you like to add anything, Dr Eastwood?
Dr Eastwood: I have nothing further to say.
Chair: Do not feel obliged, if you do not have anything, to add to what has been said.
Q98 Nick de Bois: Just to explore that, would you say that there is any concern that some people have perhaps recorded less information in anticipation of it, or is everything in the garden rosy? Dr Eastwood, perhaps you would answer that question.
Dr Eastwood: We are probably more careful about how we minute meetings and therefore more guarded, because things might be disclosed later. The decision itself, of course, is minuted properly and fully, but, just as policy might be developed by central Government Departments as it would be in a university, there are concerns about releasing it prematurely.
Q99 Nick de Bois: Following up on that on a more general point, do you think that the media’s quite extensive use of the Act has impacted upon the success of the Act’s objectives, which were about transparency and accountability? The media’s use of the Act puts it completely in the public domain at a new level. Dr Eastwood, do you have any comments on that?
Dr Eastwood: Most of the media inquiries that we have are fishing expeditions, with the media just looking to see whether there are stories there. Most of the time nothing happens afterwards as there is no story or no story concerning us, and we have not done anything differently because the media have asked questions. It takes us time to answer, but it is for them to decide what to make of it. As many as 20% of inquiries are journalists’ inquiries.
Professor McMillan: That is right. It is that broad fishing that is the problem, because there are often no problems at all with legitimate inquiries from the media. The problem is that, once you get into that fishing agenda, it creates a nervousness in the organisations.
Q100 Nick de Bois: How does that materialise? Is there a complaints process from within universities, saying, "Look, this is getting too much", or is it just a nervousness but people get on with it and do it?
Professor McMillan: I think that we do. I cannot think of any great blocks of information that are intentionally held back. Ian is right that it is an increase in the carefulness with which things are recorded.
Q101 Nick de Bois: Professor Diamond, is there anything that you wish to add?
Professor Diamond: Simply this. With regard to the media, the problem people have is that a lot of the data require to be put in context, and one knows that things will potentially be reported out of context. One then has to spend time explaining the context. That is the problem.
Nick de Bois: I cannot possibly think what you are suggesting. Thank you very much.
Chair: We all have to deal with that.
Q102 Elizabeth Truss: Given the nature of the information that journalists and others are seeking, can you see a better way of doing this than using the request process-that is, more open sourcing and those kinds of things? A lot of data are now stored electronically. Is there not a better way of doing this than having people spending time answering complex requests?
Professor Diamond: There has been an increase in making things available, and I give the example of my own institution. Senior management expenses are all routinely placed on the web and are just available. That enables a pretty easy response to the question when it comes. Other than an increase in charging for media inquiries, it seems to me that one simply has to get on with it.
Dr Eastwood: Most institutions have press relations officers. Their job is to keep relations between the media and the institution on a good footing, and they usually do. In some senses FOI requests cut across that relationship, as they could be perceived to undermine the trust that has been built up.
Q103 Jeremy Corbyn: Has the Freedom of Information Act helped universities to make more public any commercial research contracts that they may get and the nature of the research that they are undertaking because of the confidence?
Professor McMillan: It will depend on the nature of those contracts and the stage in the relationship with the commercial organisations. It is fair to say that universities are very keen to advertise the work that they do with the commercial sector, and the Wilson review, which was published this morning, will be another way in which that can be reinforced. As long as the project allows for it, then we will be as keen as anyone to put it out there-and we are.
Q104 Chair: That brings us to section 22-the provision under which research that is due to be published can be exempted. The Russell Group said in its written evidence to us that the exemption was insufficient in many cases and expectations from the Information Commissioner’s Office on how quickly research is published can be overly-optimistic. That compares with the Scottish protection for research, which is much broader. Would you like to amplify that point?
Dr Eastwood: The original exemption was designed to enable specific documents, intended for publication in draft form, not to be published until they were finalised-committee minutes and that nature of document. That is fine. Unfortunately, in England you cannot really use that exemption to protect research that is still going on. Raw data, hypotheses, other people’s views and so on about the research work cannot be defined as a document that may eventually be published. Indeed, it probably will not be published; raw data may not form part of the final research publication. To release it prematurely runs a high risk of the recipient getting the wrong end of the stick-drawing the wrong conclusion-because they do not know the context. They are not the researcher, and possibly not scientists, so it is quite risky in some ways to release that information, or, if you do release it, you have to spend a lot of time explaining it, qualifying it and contextualising it.
The current exemption does not work in the way that it is intended to work for documents such as drafts and minutes and so on; it does not work for research, which is a complex activity that involves a lot of people, a lot of data and information and many inputs. The university will clearly publish the research-the whole point of a university is to publish its research and to make it available-but only after all that has been done and it has been peer-reviewed. Publishing bits of it prematurely runs the big risk of the recipient, the public, drawing the wrong conclusions.
Professor Diamond: It is also worth saying that research follows a course, and one’s ideas about the final results can change over time as one does the analysis and one looks at different variables in different ways and with different experiments. Some projects can take years, and saying that, if you have some data, they must therefore be made public and your conclusions must be ready in six months does not allow for the proper conduct of research and could lead, in my opinion, to poor results being propagated.
Increasingly, some of the most profound research in epidemiology and in many of the social sciences comes from what we call longitudinal data, where data are collected on the same individuals over a long period. Indeed, the UK is home to some of the richest national longitudinal data in the world. Those data sit, and one is never quite sure how the data will be used by the different analysts over a period of some decades. The individual data are available and could be misused if they were subject to freedom of information. There are some clear problems with section 22.
Q105 Chair: Would you give us some examples? What comes to my mind are forms of data that would probably be publicly available in any case-for example, longitudinal studies on public health matters such as levels of alcohol-related death or things like that, taken over a long period. It is rather harder to imagine what kind of data would need to be kept confidential over such long periods to enable the research to continue.
Professor Diamond: You simply would not know, for example, what the impact of someone’s educational level or things that happened during their schooling would be later in life until one had the later data. Assumptions based on the data at one time would not be valid at a later time. You could end up with premature results that would have a negative impact on people’s behaviour.
Q106 Chair: I wonder whether you would subsequently reflect on this question, because you still have not given a convincing example. The kind of data that you imply would be about education attainment on an aggregated basis; people might draw the wrong conclusions from it for the reasons that you have given, but that is part of legitimate academic debate, is it not?
Professor Diamond: I completely understand your point, and if you would like a more detailed response I shall be happy to give one.
Q107 Chair: Is this really a question of intellectual property? Not that there is anything wrong in that, but you are actually talking about the fact that somebody else can move in to use the data that have been selected and obtained, thereby profiting from their intellectual effort.
Professor Diamond: I would not say so in the examples that I have given. Under the Economic and Social Research Council, all data collected using public funds-certainly in the social sciences-have to be lodged at the data archive, where the information is available for re-analysis by bona fide researchers from anywhere in the world. That kind of open access exists at the moment, so it is not about IP. It is simply about the development of research and premature findings being available.
Q108 Chair: Is there any evidence at all that the climate of freedom of information provisions in England and Wales has led to research being moved elsewhere-even to Scotland, let alone to elsewhere?
Professor Diamond: I could not possibly comment. I do not think that there is an enormous amount of evidence of that. That is simply because there have not yet been that many freedom of information requests on research and because the Act is in its infancy. We are in immense global competition to undertake research, and it is the top research that is absolutely essential given the competitive nature of the UK over the next few years. We need to ensure that we are able to undertake research absolutely properly, and anything that had that impact should be thought about very carefully.
Q109 Mr Llwyd: Why do you believe that it is disproportionate to apply the same FOI scheme to central Government as is applied to universities?
Professor McMillan: The main thing is the mixed economy that effectively runs in higher education institutions, in terms of the level of public support and their interaction with all kinds of bodies, whether they are private institutions, charities or overseas organisations. Putting a clear demarcation between each of those activities is very difficult indeed, and the type of data and the nature of those relationships are quite different from those in many of the organisations at which the Act was originally directed.
Q110 Mr Llwyd: The Russell Group has told us: "New providers, such as those being encouraged by BIS, might seek teaching materials, which have been developed using public funds, for commercial gain but need not make their own material available." Is there any evidence that FOI is damaging competition between the higher education bodies?
Dr Eastwood: I am not sure that there is currently any evidence because we are at the start of a possible increase in private providers. However, as the Russell Group said, there is a real risk that private providers could, via FOI, legitimately take information that has been developed by publicly funded organisations to use for their private gain.
On the broader aspect of universities and FOI, it would be interesting to see whether the criteria that apply under schedule 1 to the Act would, if they were applied now, qualify universities. As far as I can see, the Act says that to be part of FOI the governing bodies must be appointed by the Crown or a Government Minister, but that is not the case for universities. Section 5 of the Act allows a university to be subject to FOI for its publicly funded work. The proposal that we are suggesting of an independent review of the scope of FOI for universities-because universities are both public and private at the same time; they are hybrid bodies-would keep a level playing field and protect commercially sensitive research that could go on and develop into something else. To have its IP protected would require the information, the data, not to be disclosed prematurely, and before proper protection had been gained.
Universities are not central public bodies and are not fully funded by any means. In fact, less than half of our income at Imperial college is funded from public sources. It will generally be the case, as private tuition fees come in, that less than half of a university’s income will be from public sources. It is important that the scope of the Act is reviewed.
Professor McMillan: On the first part of your question, my understanding is that one university has already been obliged by a decision to release some of its teaching materials. If I remember rightly, it was the university of Central Lancashire. So the first part has happened. What then happens to the information, and where it is passed to, is clearly something that we do not know. Increasingly, as FOI requests come in-for example, through websites rather than personal contact and so forth-identifying what might happen to the information will become increasingly difficult for us.
Q111 Mr Llwyd: Following on from what Dr Eastwood said, you make the point that universities are frequently less than 50% publicly funded. In fact, figures for the university of London show that it is 14.6% overall. I thought it a rather strange figure, but that is what the university says. How should universities go about determining what is subject to FOI and what is not?
Dr Eastwood: Their entire activities are subject to FOI at the moment, so we do not have to apply that criterion. Should it in future be related to activity that is funded from the public purse, whether by a public or a private organisation, it is clearly much more difficult to apply. Everything that we do is partly privately funded. Some things that we do are entirely privately funded, but everything else is partly privately funded.
Professor Diamond: The grey area of part public, part private, is absolutely enormous.
Q112 Chair: It is not workable, is it?
Professor Diamond: One can imagine walking into a class of 100 students and trying to work out how many were paying fees and how many were on a public grant. It would be almost impossible. Although, in theory, in the case that you give of the university of London one could say that 14% of the requests might be on public funding, it would be almost impossible to work out which were public and which were private. The odd one would be absolutely clear, but the great majority would be in the middle grey area.
Q113 Mr Llwyd: You would not be impressed by the thought that perhaps cases of FOI should be confined to those activities of monitored bodies that were funded by the taxpayer.
Dr Eastwood: Fully funded by the taxpayer?
Mr Llwyd: Yes.
Dr Eastwood: It would make our life easier, but it would not necessarily be beneficial to public confidence in universities.
Professor Diamond: Going back to my original point in answer to Mr de Bois, universities are completely committed to transparency and openness. If it were the case that one wanted simply to have those institutions totally publicly funded, then universities would continue to be completely committed to transparency and openness and, let me be honest, to working with the media to make sure that that happened. As I said right at the beginning, there is no culture of secrecy and there would not be a culture of secrecy. I believe that over the last few years there has been a greater increase in transparency in public life generally, and universities want to be and are part of that.
Q114 Chair: I turn to an area of university research that excites controversy. It is procedures involving experiments with animals. Some universities believe that the Animals (Scientific Procedures) Act 1986 is not sufficient by itself and that the Freedom of Information Act needs more exemptions in this area. Would any of you like to speak on that?
Dr Eastwood: There has been a recent case, Sir Alan, to which you alluded in your declaration of interest, where there was a conflict between two Acts-one relating to the holding of certificates for animal use and one to FOI. Animal experimentation in universities is highly regulated, and a lot of data about it will be published through the Home Office. It is not secret and we do not want it to be secret; the information is available. However, there are people in the world who object strongly to animal experiments, and they will use any means available to get more information about the experiments and the people who are undertaking some of that experimentation. That is what causes the problem.
The Home Office requires information about licences to be kept confidential. In this recent case it came into conflict and, in the end, Newcastle university published some information. However, the Home Office declined to prosecute it for doing so, but, on the basis that if any future case came up it would have to be directed by a tribunal to find in favour of the university, the universities are now in the position that, in order to follow the case, they may have to undergo expenditure of a substantial amount in legal fees to go through the tribunal process each time in order to prove to the Home Office that the information was properly released. The conflict between the two is quite difficult to resolve.
Professor Diamond: It is my understanding that the UK already provides more information on animal research than many other countries. In my view, what we really need is a clear relationship between the ASPA and the FOI Act, because at the moment they seem to be somewhat in conflict.
Q115 Chair: Can we be clear? Are we talking about security-related issues for members of staff rather than the other kinds of protection for research that we were talking about earlier?
Professor Diamond: In that particular case, yes. All the same issues to do with the publication of early research results hold; it is a special case of something that we have already been talking about.
Q116 Chair: What is your view of what should be done, if anything?
Dr Eastwood: The current arrangements under ASPA are fine, but the Freedom of Information Act needs to recognise that some privileged information protects members of staff in their work.
Q117 Yasmin Qureshi: Good morning, gentlemen. I want to discuss with you the question of the appropriate limit and the requirement under section 12 that if carrying out a piece of FOI will take more than 18 hours you can apply for an exemption. We understand that, in 2010 and 2011, 28% of FOIs from universities were declined on the basis that they would take more than 18 hours. In your opinion, is the 18-hour time limit appropriate, too long or too short? Generally, what is your view on the limit?
Professor McMillan: The critical thing is not so much whether the time is right but what is allowed to be claimed as part of the time, especially when we move to things such as research data, for example, going through the process of redacting information-we go back to medical studies again-if there was personal information that needed to be taken out, Currently that time is not allowed to be included, and it can be an enormous work load. It is the aspect of what is in there rather than the limit itself. I suspect that the limit is probably not too far out; it is long enough to give a sensible reply to most reasonable requests, while putting in a sensible limit for things that go over the top. It is what is in there that is critical.
Q118 Yasmin Qureshi: Apart from redacting the information, which you say could take time, do you think that other things should be included in the 18-hour time limit or, perhaps, should not be included? For example, some people suggest that reading the request might be time-consuming and that it should therefore be part of the 18 hours.
Professor McMillan: Again, it is the reading, the assessment, the collecting together of information. Going back to the research agenda, I know that that is not the only thing on the table, but it is one of the things that makes it different from many other organisations. A lot of research is collaborative, and it might be pulling in data from different places; it is collection, reading and interpretation. Some of the universities in the 1994 Group have raised the issue of having more time and, if possible, to have a dialogue with the person making the request in order to focus and reply better to the specific needs of the requester. A number of things could go in there.
Q119 Yasmin Qureshi: A point made to us by someone from the Constitution Unit is that sometimes the reason for delay in FOI requests being processed by local authorities, for example, and perhaps universities also, is that the appropriate level of person is not dealing with it. Normally, it is passed on to junior staff, who probably do not have the confidence of senior management and probably have to go through the hoops of going to senior management, whereas, if the request was processed by someone in senior management or someone in a senior position, it may be facilitated a lot more quickly. What do you say to that?
Professor Diamond: I cannot see that happening in any of the universities of Universities UK of which I have any knowledge. It is something that is taken very seriously. In my own institution, the person in charge is a member of the senior management team. At the institution where I was before, which was a non-departmental public body, the person in charge was again a member of the senior management team. FOI is taken very seriously, and all the issues around it are absolutely part of senior leadership.
Dr Eastwood: I absolutely concur.
Q120 Yasmin Qureshi: That leads me to my final question. Would you support routine fee-charging for FOI requests?
Professor Diamond: I am absolutely against routine fee-charging. I believe that we should be in a position where bona fide members of the public, who have proper requests on FOI, should not be in any way discouraged by cost. On the other hand, as I indicated earlier, I can see a case, with the media or someone who is going to make commercial gain from FOI requests, for a charge being made.
Professor McMillan: That is true. If it was a potential mechanism of stopping blanket FOI requests-for example, in our case, across the whole sector of 240 universities-then anything that would help would be useful. However, I agree with Ian that we do not want to put people off who have legitimate causes.
Q121 Elizabeth Truss: This may have been covered in your preliminary information, but do you know the total cost of FOI to universities? Could you make an estimate?
Professor Diamond: I would not like to do so, but I will happily reply in writing.
Q122 Elizabeth Truss: Would you like to see a regime where people, particularly those who frequently make FOI requests, are obliged to contribute to the cost?
Professor Diamond: I have some sympathy with that, so long as one has a way of ensuring that bona fide requesters are not discouraged from making fair requests by cost. However, as Professor McMillan noted, when one is getting the same request on a fishing trip across 140 institutions, that seems to me not to be a bona fide request to an individual institution. Then a cost could be put forward.
Q123 Elizabeth Truss: Is it not the case that individuals may sometimes be able to look up the information themselves and having a cost would make it more likely that they would undertake the work themselves by looking at the publicly available information from the university rather than getting someone else to do that research work for them?
Dr Eastwood: Possibly, although the level of charge likely to be incurred is so small that it would cost the university more to collect it than would be gained. It is probably counterproductive.
Q124 Elizabeth Truss: It may, however, dampen the level of requests.
Dr Eastwood: It may, yes.
Professor McMillan: Something came to mind as you were talking slightly earlier. I do not know the answer, but it would be interesting to know how many FOI requests are for information that is already readily available. In many respects, things like the publication scheme have been slightly bypassed by search engines on the web. It is probably easier to put a request into a search engine than it is to go through formal documents. Again, it might be an interesting piece of research for someone.
Q125 Elizabeth Truss: I wonder whether you would be able to provide an estimate of that for the Committee.
Professor McMillan: I suspect we can try.
Professor Diamond: We will ask our colleagues at Universities UK, who will, I am sure, do their best.
Q126 Elizabeth Truss: That would be helpful. It strikes me that a lot of what universities do, or at least some of it, is paid-for research, sponsored by research councils, businesses or other institutions. You mention the cost of collecting money for FOI requests, but could that not be incorporated into the wider research activity?
Dr Eastwood: Yes, it could. We are not ruling it out, but, as Ian says, we do not want to discourage bona fide requesters. It is the serial requesters that are the problem.
Q127 Elizabeth Truss: How can these serial requesters be identified? Do you have any way of identifying them? Could it be introduced into the process?
Dr Eastwood: At the moment, it can be anonymous. There is no requirement for anyone to declare their true name.
Q128 Elizabeth Truss: Would you like to see that anonymity removed?
Dr Eastwood: Certainly for some. If we get on to vexatious requests, if someone is making multiple requests designed to be slightly different so that they do not come under the current definition of vexatious requests, then yes. I suggest that we need to find a way to deter them from doing that.
Q129 Elizabeth Truss: Is there any value in the anonymity?
Dr Eastwood: There may be, but we often get multiple requests from campaign groups. They are targeting someone-usually an individual at the university who is doing some work of which they do not approve. That individual is known. Their name is out there, but the campaigner’s name may be hidden behind a website.
Q130 Elizabeth Truss: I am thinking of the post office’s post-code finder, where you have five requests for free and then you have to pay. Could you see a system like that working for FOI? My other question is about the whole process of FOI and whether it could be modernised or improved and made a lot simpler for those dealing with it. Is it unnecessarily bureaucratic at present?
Dr Eastwood: I have not thought about that; I do not necessarily want to answer now, but I am happy to answer in writing.
Q131 Elizabeth Truss: Professor McMillan, would you like to comment?
Professor McMillan: The process perhaps not, but elements of it certainly, such as the example of vexatious claims. The reports that we receive from universities are that the system of proving that something is a vexatious claim is almost more arduous than responding to it in the first place. There are elements that need modernising and looking at, and clarification is the key. That, I guess, is one of the points of this sort of review, once it has been in place for a few years.
Professor Diamond: One reason why it was very good to have a review is that it is very difficult for the Information Commissioner’s office to take a view until it has some case law. Often, one is trying to prevent such case law in the first place. A review of the issues around the bureaucracy would be incredibly helpful.
Q132 Chair: Do you accept the principle that freedom of information is applicant-blind and that, regardless of who has requested the information, it can end up in the public domain-assuming that the applicant chooses to make it more widely available? The question of who the applicant is, apart from giving circumstantial evidence that a request might be vexatious or frivolous, is not particularly helpful to you, is it?
Dr Eastwood: Only if the applicant is part of a campaign that is targeting an individual, which does happen. It is quite frustrating not to know who is on the other side of the campaign-as in many walks of life.
Q133 Chair: We are obviously aware of the East Anglia case, but are there cases in your experience where, for example, you could say a particular academic or department has been deliberately and disruptively targeted with serial requests, whose purpose might be to make it impossible or difficult for the department to carry on with its work?
Dr Eastwood: That is certainly true. I do not want to give away personal details, but there was a particular line of research on a disease from which many people sadly suffer, and some work was done in the States that seemed to indicate that the cause of the illness had been found. Somebody in our institution repeated the work but could not find this cause and published a negative result. Immediately it came out, there was a series of FOI requests to this individual, asking about their work, their families and so on, each one being slightly different. The requests themselves could not be called vexatious, because the definition is about the request and not the requester. In the end, the work that we did was corroborated at other institutions, and the original work in the States has now been withdrawn.
Our negative finding was proved, in the end, to be the correct one, but the person involved had to go through quite a lot of harassment from FOI requests on her work-to the extent that at one stage the person declined to accept membership of a US peer review group that was being set up by the US Government to look at funding for this work because they did not want to be exposed to even more harassment. It was not only FOI, but FOI was an element.
Q134 Chair: Were you able to use any of the procedures of the Act to abate this?
Dr Eastwood: No, it quite difficult to do so, and especially with the vexatious one, because each request was different, but it was reasonably clear that they were from the same source or campaign; it was not necessarily the same individual.
Q135 Chair: Is there any way that one could adapt the legislation to prevent it being used in what might be called deliberately intimidatory manners?
Dr Eastwood: One way would be for people to have to declare their true identity. That is a barrier in itself, because if you can hide behind anonymity it is always easier to do this sort of thing.
Chair: Thank you very much. We are very grateful to you for your evidence. We now have some further witnesses.
Examination of Witnesses
Witnesses: Martin Rosenbaum, BBC News, Doug Wills, Group Managing Editor of Evening Standard Ltd and Independent Print Ltd, David Higgerson, Digital Publishing Director of Trinity Mirror Regionals (on behalf of the Newspaper Society), and David Henke, Senior Investigative Journalist for ExaroNews (on behalf of the National Union of Journalists, gave evidence.
Q136 Chair: Mr Hencke is a well-known journalist who makes use of the legislation, who is also here on behalf of the National Union of Journalists today. Mr Higgerson is from Trinity Mirror Regionals and is here on behalf of the Newspaper Society. Mr Wills is managing editor of the Evening Standard, The Independent and The Independent on Sunday. Mr Rosenbaum, from the BBC, is speaking not so much on behalf of the BBC but as a journalist.
Martin Rosenbaum: Absolutely in my capacity as a journalist, yes.
Chair: Welcome to you all. Mr Hencke and I go back quite a long way. Long before the days of freedom of information, he and I were jointly engaged in trying to prove-successfully in the end, thanks to his work-that the Government really did have a plan under which they were closing colleges, and it was not happening accidentally in a lot of different places. It would be interesting to speculate how freedom of information might have helped us had it been available then.
Q137 Yasmin Qureshi: Good morning, gentlemen. As you know, when the Bill was having its Second Reading in 1999, Jack Straw, then Home Secretary, said-and I am not going to go through the whole speech-that unnecessary secrecy in Government and public services undermines good governance and public administration. He also said that the legislation would help to deliver more accountable public services and that things would be much more open and proactive. The London Evening Standard said that the FOI Act has improved transparency, accountability and good governance in British public life. The Society of Editors has said similar things, and the National Union of Journalists has said that the Act has made public bodies more accountable. My question to you all is this. To what extent have the objectives of the Act in improving public debate, transparency and accountability been achieved? Were they realistic objectives? Generally, what are your views about that?
David Henke: I sat on the advisory committee-it was then called the Lord Chancellor’s advisory committee-that dealt with implementing the Freedom of Information Act. I would say that there has been a complete sea change between about 2001 and now. When I was on The Guardian, I remember that we used John Major’s code, if you remember; it was the sort of thing that you could use to ask for information. We got into the most extraordinary tussles, which eventually involved the parliamentary ombudsman in this case over stuff that is now totally routine. I shall give one example.
For some reason, Tony Blair did not want the public to know about all the gifts that he had received. Under the US Freedom of Information Act, we found that President Clinton routinely published all the gifts that he received. In fact, he received so many gifts in London, as we found from our FOI request, that they had to send them back by boat because Air Force One could not take off from wherever it was as it was too heavy. We had this battle with No. 10, saying that, if everyone knew that Tony Blair had all those guitars, it would ruin British diplomatic relations, but it was complete nonsense. That sort of information is now published routinely. So is the cost of Ministers’ trips. Again, we had a battle with them over that. The great news is that, with the first series, the taxpayer was sometimes paying for 60 or 70 people to go abroad with a Minister, and we suddenly noticed that next year it had come down to 10. That is because it was public.
Q138 Chair: Someone had probably told journalists that there were free seats on the plane.
David Henke: Probably, but I think that they charge for them now. I would say that there has been a big sea change, and it has gone a long way to opening up public life. Things that were secret at the beginning of the 21st century are now routine and available for the public to find out. I think that this is a really good thing.
David Higgerson: I would agree with much of what has been said, certainly in terms of making those working for public authorities more accountable and the organisations more transparent. We have taken a huge leap forward through the Freedom of Information Act. I think that the Act still provides too many loopholes, whereby if an organisation does not want to release information it can probably find a way not to do so. We certainly see that with some local councils, although in the main we have seen a big improvement in terms of what we can get access to.
Looking back to 1999, when Jack Straw was making those speeches, and if we use local councils as an example, we still had a system where the default position was that we had debate and discussion and a lot of committee meetings. The arrival of the Local Government Act 2000 enabled councils to go for the cabinet-style structure, and we quickly saw those authorities becoming very secretive organisations, with decisions involving hundreds of thousands of pounds being taken behind closed doors and with no public scrutiny. The Freedom of Information Act has helped to counterbalance a lot of other things that have gone on in the meantime. Compared to where we were, say, seven or eight year ago, the Act has helped to make public bodies more accountable, but in many ways it has replaced or mitigated against the impact of other legislation that has enabled authorities to become more secretive.
Martin Rosenbaum: There has been an enormous change, and David has described some of it. We certainly see information now being published routinely that was not published prior to that. The culture is taking longer to catch up with some of the routine publication of information. There has been a change in culture, but I think that that change is still partial and inconsistent and has a long way to go. That is something that will inevitably take longer to have an impact than the legislation itself.
Doug Wills: I totally endorse what has been said, particularly by David Higgerson and David Hencke. We have found over recent years that, by putting forward specific questions in specific areas, we are getting exact answers. Earlier, there was some mention of press officers always being available. Yes, but press officers will put things forward from a particular point of view. The Freedom of Information Act allows precision, and often it is precision that is required. There are still attempts to kick the matter into the long grass, and that is the area where there could still be greater attention.
Q139 Yasmin Qureshi: From what you all say, it seems that the Act has been good in some respects, particularly in getting information, but one of the aims was that the quality of public debate would hopefully become better. Do you think that that has happened? If not, why might that be the case?
Martin Rosenbaum: That has happened to a lesser extent than some of the changes that the Act has brought about. Characterising the sort of information that the Act now enables us to obtain on a very crude level, you will now find that it is much easier to get facts and figures-how much was spent on this, statistics about the performance of public services and so on. The sorts of things that were harder to get previously now tend to be very easy to get, but what it has not produced, and the civil service is certainly very resistant to this, is internal discussion, documents, policy discussion, minutes of meetings and so on. That sort of information is sometimes made available, but much more often it is held back for various reasons. There may be reasons why the civil service want to hold it back, but that information, if it came out, would play a much bigger role in informing public debate, making the public better informed and helping people to participate in decision making.
Perhaps I can give one example from last year. One of the things that I requested under FOI was the submission that the Treasury made to the Migration Advisory Committee, which advises the Home Office on migration policy. It was about the economic impact of immigration. At first the Treasury turned me down, but I eventually got it after an internal review. It seems to me that having that kind of information in the public domain-it was quite a complex 20-page paper about what the Treasury thought was the economic impact of migration-enables a better debate to take place on such issues than if the information is held back. However, the Treasury did not want to release it initially, and I got it only after an internal review. We still find that that kind of information is not being released.
Doug Wills: I believe that the answers that come as a result of FOI requests are the catalysts for debate; they are obviously not the debate itself, but, unquestionably, the information that can come out of specific questions will lead to debate. One of the FOIs done by the Evening Standard was on the number and areas of arrest and prosecution. Debates followed, including the search policies, and the statistics that went with stop and search, arrest and prosecution. It led to a public debate about it once the information was available.
David Higgerson: More than anything else, the Freedom of Information Act has enabled members of the public to decide what should be debated in the way that in the past the local authority may have set the terms of reference for the things that it thought most important to be discussed. The Act enables people to get the information on the things that matter to them. Websites such as WhatDoTheyKnow are being used increasingly frequently by members of the public, and more and more newspaper articles now begin life with members of the public seeking information rather than journalists. Whether that has improved the quality of debate overall I do not know, but it has resulted in a more diverse debate and has empowered people to have the debates that they want to have.
David Henke: Yes, I think it has improved things, but it has probably also improved the quality of people’s prejudices, because they take selective stuff from one thing versus another. However, it does spark debate.
The latest thing that I have been involved in, about the head of the Student Loans Company, has started a debate among contractors and others about tax avoidance. The only way that I could get that information accurately and correctly-and the story has not been challenged at all-was through a freedom of information request. I was more or less tipped off about it by concerned people in Whitehall; it was only Whitehall gossip at that stage, but people had heard something and they were not very happy. By putting this into the public domain, it started a debate about what was going on.
The Student Loans Company is to be congratulated on giving such a comprehensive answer to a freedom of information request, which is more than can be said for Revenue and Customs, which refused to tell me the extent of this because I could not work out whether it was an old case. To my total amazement, once we had all the papers, it sparked a debate. There is now a debate on my own blog about the people who employ interim management consultants, if someone is brought into Government whether they are a genuine contractor and where they come from, and is it a fiddle.
The general feeling is that the Lester case, frankly, was a complete fiddle. It was the only known case of someone getting paid holidays and a pension who was actually a company; he was running the Student Loans Company and appearing before Parliament. Those sorts of things are really important, because this issue was not even being discussed; no one knew that it was happening, and to my shock it seems to have passed the Chief Secretary to the Treasury by when it went up to his office.
Q140 Chair: There are counter examples of what I call the tea and biscuits phenomenon where newspapers might find it more attractive to run a campaign about the cost of tea and biscuits than the £2 billion expenditure, which really ought to have been questioned.
Doug Wills: I wonder whether the olive trees come under tea and biscuits.
Q141 Chair: They are rather more expensive than the tea and biscuits.
Doug Wills: Absolutely. I say that because the tea and biscuits can sometimes be indicative of a policy rather than being the actual point of an article-perhaps.
Mr Llwyd: They are fig trees.
Chair: My colleague points out that they are fig trees.
Q142 Yasmin Qureshi: Moving away from the issue about the opening up of debate, one of the other aims of the Act was to improve trust in Government and Parliament. May I suggest that the Act has not achieved that or done enough? What is your view? Do you think that those elements of what the Act is trying to do about trust in Government and Parliament have or have not been achieved and, if not, why not?
Martin Rosenbaum: It has not done much to increase trust, but it was not a reasonable expectation that the Act would necessarily do that. The Act enables people to know more, and what they discover as a result may or may not increase their trust. There are obvious reasons why it has not increased their trust in Parliament. There are very clear reasons for that. It is not the fault of the Act that there has been a failure to increase trust. The point of the Act is to give people more information. Whether it improves their trust levels or not is not something to hold at the door of the Act.
Doug Wills: The opposite would be the case, of course. If the information was not available, then there would be distrust. That is positive in itself.
David Henke: I would say that it does increase trust, but Parliament did not do itself any favours over the expenses business when, in the preamble to it, someone put up a private Member’s Bill that was trying to exempt Parliament from freedom of information, which I regarded as an absolute outrage. Basically, you could not get a more democratically elected body that was saying, "We do not want to tell you anything about what we are doing and spending." I agree that it caused you a lot of angst and certainly a lot of trouble over the leaks that followed, which were not to do with FOI. You are not guaranteed an improvement in trust, but you are guaranteed that, over time, people will have a greater understanding of how Government works and what they expect. It will not be entirely just a prejudicial view, with people saying, "Oh, we can’t trust any of them."
Q143 Yasmin Qureshi: My final question is this. We have received information that the Act has been more successful in local and central Government, but other public bodies such as the universities or the Audit Commission have not been as effective. Do you have a view on that?
Martin Rosenbaum: One of the strengths of the Act is that it applies not only to central Government, and not even in fact only to local government, but to police forces, ambulance trusts and the fire service. A lot of the stories that the BBC gets from freedom of information relate directly to those public services that directly influence people’s lives. In my view, the fact that the Act should extend to those is a very important principle within it.
Doug Wills: Absolutely. There is some suggestion that, because universities are part- funded, they should not be included, but I was encouraged by their openness and willingness to embrace transparency. Certainly, the part-funded should be included; if anything, it is absolutely right an institution that is part-funded by the taxpayer should be included within the FOI embrace.
Chair: There are a number of supplementary points. There is one from Liz Truss.
Elizabeth Truss: I completely support the move to more openness and transparency; it has had a very positive effect on political culture. However, I am concerned that public bodies are spending a lot of public money answering these requests, including institutions such as universities. I realise that the newspaper business is in some difficulty, but is it right that research is essentially being carried out extensively when the information is sometimes otherwise available? Could you see an improvement to the regime, where journalists and others seeking FOI at least have to pay the cost of having that information dug out?
Chair: There are questions about that later on the agenda, which will be opened by Mr de Bois. It might be helpful to park that question until then, but by all means I will come back to it.
Q144 Mr Llwyd: I have a short question. Going back to what you said, Mr Rosenbaum, about the Treasury denying you access to certain figures until it had had an internal review, did it give you a reason why it was not prepared to do so initially?
Martin Rosenbaum: Yes, it was initially rejected under section 35, to do with the formulation of Government policy and that it would affect the free and frank discussion of Government policy if the information was released. That was the reason for it being held back initially. I then argued that it was in the public interest because it would help to inform the debate better if the information was released, and it then went along with it at the later stage.
Q145 Steve Brine: Listening to all this, one wonders how good investigative journalism ever happened before the Freedom of Information Act. We are talking about trust in politics, but I wonder whether you could comment about trust in the media. The stories from the Leveson inquiry have not exactly covered your profession in glory. Mr Higgerson, you said on your blog a little while ago-I read it regularly-that you believe that we have a lot to fear from this review. Would you expand on that?
David Higgerson: Absolutely. Looking at it from a local regional newspaper point of view, where we deal primarily with local authorities and PCT, I feel, and have felt for a while, as I have said in my blog before now, that there is a growing momentum, particularly at local organisation level, to talk about the cost of servicing the Freedom of Information Act. We often see the illusion painted that the vast majority of FOI requests come from the media, but from FOI officers to whom I have spoken that is not the case. The danger, I felt, was that, if the cost argument carried sway at a time when the public sector was under a lot of strain, we would end up with a Freedom of Information Act that was massively watered down, whether through trying to impose costs at point of entry, reducing the hours available per request or the loading up of duties that could fall within those hours. Basically, we are saying that the cost argument feels a bit like a Trojan horse for authorities that do not like members of the public being able to ask the questions that they want to ask.
Q146 Steve Brine: Does anyone else think that there is anything to fear from this inquiry?
Doug Wills: Yes, obviously. There always is. It is rather like putting an FOI. You put in questions, but, from here, how far will the questions of cost and exemptions go? Cost absolutely. One of my hats as managing editor is to make sure that the editorial budget is kept to, and we now do not do certain things because we cannot afford them. That is at the Evening Standard and The Independent. A local paper would not even think of being able to do that.
Chair: We are getting on to costs, and I did promise that we could come back to them. We started with a more general question about how journalism operates in the context of freedom of information. At this point, we move to Mr Gummer.
Q147 Ben Gummer: Is FOI a standard part of the instruction and training of journalists?
Doug Wills: It is certainly embraced within that training. It is part of the public administration.
Q148 Ben Gummer: I take it that most journalists that use FOI know that they can submit requests anonymously or under aliases.
David Higgerson: It does not take much for them to work it out. I can only speak for the company that I work for, but we do not advise our journalists to do that. We advise them to be up front and open about who they are and who they represent, and to make sure that they try and build good working relationships with FOI officers. Certainly there is no part of any training that I have ever seen for journalists that encourages, advises or even highlights the fact that requests can be submitted anonymously. We would encourage our journalists not to do that.
Q149 Ben Gummer: It seems to be a common refrain in your written submissions to the Committee that there is a differential treatment of journalistic requests and those from members of the public. That is not surprising, is it?
David Higgerson: Given that the Freedom of Information Act is supposedly applicant- blind, it is a little disappointing when we find out that press officers are signing off freedom of information requests sent in by members of the media, yet they only do that for the FOI requests that go back out to members of the media. They do not do that for all FOI requests that are going out. While it may not be surprising, it is disappointing.
Q150 Ben Gummer: How would you advise that that were not the case? How would you suggest that that would change?
David Higgerson: I would suggest that the function in, say, a council or a primary care trust, of dealing with the media through the press office is one thing, but there is a separate function for the freedom of information officer. It makes absolute sense for the press office to be aware of what the media are asking for, but it crosses a line when the press office is effectively approving the wording, or, as one authority said, signing off its freedom of information requests before they go back out to members of the media.
Q151 Ben Gummer: If it does not change the veracity of the response, why does it matter?
David Higgerson: How do we know that it is not changing its veracity? I give the example of Kirklees council in west Yorkshire. Its council leader regularly signs off freedom of information requests that are received. Indeed, the Huddersfield Daily Examiner, one of the papers that I work with, using information not obtained under the Freedom of Information Act but good old sources, was able to prove that the council leader was requesting changes and blocking some freedom of information requests from going out that had been deemed fit to go out by the freedom of information officer. It makes a very big difference in terms of the pureness of the Freedom of Information Act.
Q152 Ben Gummer: I see what you are driving at.
Martin Rosenbaum: May add something? As well as veracity, there is also the delay issue, which is very important. Journalists’ requests going through extra hoops and being referred to the press office or more senior people or whatever inevitably results in delay. Journalists’ requests therefore tend to be delayed, which in our business is a very big problem. Some research was done a fair way back by a Canadian academic and an international specialist on FOI, who was looking at how long the MOD took to respond to different categories of request. He found that very long delays were much more likely to happen to journalists’ requests, and also, it has to be said, to requests from MPs. They were much more likely to be subject to very long delays than requests from ordinary members of the public and the various other categories that he was looking at. It is also about delay as well as veracity.
Q153 Ben Gummer: I turn to Mr Hencke’s interesting point about having a tip-off from someone inside an organisation, which is then followed up with an FOI request. I imagine that this is pretty standard.
David Henke: It has probably developed since FOI, funnily enough. Frankly, before this, and going right back to Alan Beith’s time-
Q154 Ben Gummer: It still is his time.
David Henke: Apologies, Chairman. Going back to the days when we were looking at teacher training colleges, a lot of information came from tip-offs from Whitehall. This was perfectly respectable; it was nothing to do with us phone hacking.
Q155 Ben Gummer: I am certainly not impugning your activities because I think this is a fantastic use of it. You receive a tip-off from someone, normally in a whistleblowing capacity, and you can then follow it up with an FOI request. How often do you find that that request meets an obstruction or returns an answer in the first instance that is inconsistent with the tip-off but then, after further investigation, reveals that there is a truth behind it?
David Henke: It is quite interesting to watch what is happening. I followed up the FOI on the Student Loans Company with one to the Revenue and Customs. I decided to ask a suitable question of how many people in Whitehall might be on this type of contract. The answer came back that it was far too expensive to tell me. They were not going to tell me because it was outside the limit, so I then cut it back. I did not ask for any names, but I asked for the numbers, and I picked one agency that I had spotted from another FOI that seemed to have a rather large number. It was the Insolvency Service, and I was rather puzzled as to why it seemed to have 100 people on this consultancy contract when it had only 500 staff.
I also asked specifically about its revenue, and what came back is that it was more or less prohibited information, because, even though we were not naming anybody, it was getting near to the tax affairs of people. It said, "We cannot tell you that either because you have been too specific," even though it would be within the cost. Frankly, I have found Revenue and Customs to be considerably obstructive. I am delighted that at least Danny Alexander did not tell them to release this information, because they were not making it available and were blocking it at every opportunity.
Q156 Ben Gummer: It cost, no doubt, far less to reveal that information than the cost to the Exchequer of the tax avoided.
David Henke: Yes, far less. If we take the first case, you have already saved the taxpayer at least £26,000, if not £40,000, on one case; I now see that two other people are being put on PAYE. I almost thought of asking for 10% to fund me as a journalist, but I don’t think that they would agree.
Doug Wills: On your other point about how we managed before FOI and tip-offs, in fact it is now not unusual for a press office to say, "Well, actually that information is not available; you will have to put in an FOI." They are almost acting as the tip-off, because one of the arguments is that it is not published material but that it can be published if there is an FOI. That is rather a bizarre way of going about it. Before FOI, you would just have to find a councillor from the opposition, which was always possible if it was a local authority. The councillor would give you enough information to leak out, but it would not necessarily be 100%. With FOI, one truly hopes and believes that it is 100% accurate.
Q157 Ben Gummer: I am trying to strike at something slightly different. When you know or suspect that something is true, how often is it the case anecdotally that you find you have to keep on digging away with FOI, coming at the problem from different angles in order to elicit that truth?
David Higgerson: It happens increasingly frequently. As Doug was saying, before FOI you would get a tip-off and you would try to find the information from people prepared to talk to you. In my experience, a lot of whistleblowers feel more comfortable with saying, "You might want to explore x under the Freedom of Information Act", because they are not necessarily handing over any material. You would certainly like to think that you can put a freedom of information request in and get the information back, but increasingly we find that you can put a FOI request in and get only part of an answer, being told that you have phrased something slightly incorrectly so that they do not recognise it. Yes, you will get there eventually but it is a lot of hard work to get there, and certainly quite a time can elapse in between.
Q158 Ben Gummer: On the question of exemptions, therefore, would you say that it is now common practice that they are misapplied or is it still exceptional?
Martin Rosenbaum: Often it is difficult to know because you do not end up seeing the information, and you would not know to what extent it was justifiably withheld. Sometimes you do if you later get the information at an internal review stage or from the commissioner or the tribunal. Sometimes, it has to be said, I am shocked when I see the information because I cannot see any justified basis for withholding it whatsoever. Exemptions are certainly being misapplied on occasion.
One example that I recall was in relation to the Home Office. The request did not come from us; it came initially from a campaigning group that was interested in drugs policy, which had asked for a particular report. We then obtained some information from the Home Office about how it dealt with that FOI request. It said, "We don’t want to release the information to this group because it would show that there was a lack of evidence base for our policy, and it would lead to criticism of Government policy." I have to say that that was sent to us inadvertently because it failed to redact some information. We ended up with this information, but, from what it revealed about this case within the Home Office, it seemed to be utterly clear that it had withheld information without any justified basis for doing so under that particular exemption. Occasionally, the mask slips and you can absolutely clearly see that it is the case from time to time; at other times you are in the dark and you do not know.
Q159 Ben Gummer: I know that the next questions will be on enforcement, but I have one final question about consistency across authorities. Mr Hencke, you mentioned two different approaches. How would you suggest better consistency could be achieved across authorities? Should there be widespread publication of response times and quality of responses? How would one achieve that without it becoming a bureaucratic monster?
Doug Wills: The Information Commissioner has a role here. There could certainly be quarterly production, for instance, of repeat offenders if there are delays that go beyond the stipulated period. The commissioner has that role.
Martin Rosenbaum: There is a very important role for the Information Commissioner. He could issue more enforcement notices for authorities that are behaving particularly badly. Also, within Government, there is a role here for the Cabinet Office. It is a real problem, but one of the worst authorities in my experience-this is confirmed by the MoJ statistics-is the Cabinet Office. It has a very bad record in delays, and it has been subject to monitoring; it is one of three authorities that have been picked out by the Information Commissioner for their very bad record, and they are being carefully monitored by the ICO because of their record of delay and sometimes of obstruction. As well as the ICO, there is also the question of what message is coming from the heart of Government. If people do not see the Cabinet Office setting an example, that is a problem for the consistency of response across Government as a whole.
Q160 Ben Gummer: Is that still the case for the Cabinet Office? Has it got better or worse in the last few years?
Martin Rosenbaum: I have detected, I thought occasionally, improvements in the Cabinet Office, but then it seems to get worse again. If one wants to be generous, we might see it as at the beginnings of inconsistent improvement, but I am not 100% sure about that.
Q161 Ben Gummer: There is a fight going on.
David Higgerson: On a practical level on something that authorities could do, it is not uncommon in one of our areas to have six primary care trusts, and, if you FOI all six for data, five will supply it but the sixth will come up with a reason not to. Is an exemption being applied inaccurately by the one when the other five are releasing information? I would probably say yes. Better use of disclosure logs by all authorities would impress upon those authorities to think carefully before applying exemptions; indeed, the proper use of disclosure logs would help deal with the issue of cost, which we will come to.
Q162 Mr Llwyd: Further to these points about enforcement, Maurice Frankel and Professor Robert Hazell told us that, as far as they are concerned or to the best of their knowledge, there have not yet been any prosecutions under section 77. Do you believe that there is occasionally defacing of documents, altering or destroying them, after an FOI request has been made by you?
Doug Wills: I am not aware of it.
David Henke: It would be very difficult to prove; that is the trouble.
Q163 Mr Llwyd: We have already had some suggestions about how enforcement can be improved. What new powers would be useful for the Information Commissioner-for example, to look at section 77 or the 20-day limit on internal reviews, or any other matter that you think might assist in strengthening his arm?
Martin Rosenbaum: It is partly up to him to use the powers that he already has, for example, in issuing enforcement notices. As a background to that is the confidence with which he uses his power. He is very much influenced, I think, by his own record in dealing with complaints. It used to be absolutely terrible; the delays were worse than anything you would experience from a local authority. In one of my cases, the commissioner was considering the matter for more than four years before I got a decision.
That has dramatically improved, but nevertheless it is important that the commissioner has a level of resources that enables him to process the complaints that he receives sufficiently quickly, efficiently and effectively so that he can then turn round with confidence and address the public authorities that have been slow. Previously, a lot of them would have been very dismissive of any complaint from the commissioner, saying, "You are worse than us." As well as the law, there is also the question of the resources that the commissioner has in order to use his powers and to use them with confidence.
Q164 Mr Llwyd: You all know, of course, that the commissioner now monitors public authorities that regularly miss the 20-day limit. Have you experienced any improvement in that yet?
Martin Rosenbaum: This is the Cabinet Office point, because the Cabinet Office is one of those authorities that was monitored. As I said, I noted stirrings of some improvement, but I cannot be entirely sure.
Q165 Mr Llwyd: Green shoots.
Martin Rosenbaum: Exactly, and who knows what the green shoots will grow into. In some of the other cases-this is, I suspect, based on statistics rather than on my own personal experience; I cannot say for sure-there has been an improvement in some of the authorities that the commissioner has decided to monitor. However, with his first monitoring exercise, he concluded after the end of the three-month period that the Cabinet Office, the MOD and Birmingham city council, if I remember correctly, were the three authorities that, despite his monitoring, had not developed a clear and credible plan, which I think was his phrase, for improving their FOI performance. It was not completely working in his terms.
Q166 Mr Llwyd: Mr Higgerson’s earlier example of Kirklees does not fill me with confidence either.
David Higgerson: It depends on the mindset of the authority on how it wants to respond to the Information Commissioner’s monitoring. NHS North West was one of the bodies put under monitoring; it was certainly flagged up as being an authority that was missing targets. In my experience of dealing with it, there was a general culture of not particularly wanting to be open or telling people what it was up to. At the other end of the equation, I believe that Hammersmith and Fulham council at one point was highlighted as an authority that could do better. Using only the yardstick of the number of FOI requests that resulted in news stories, which you can pick up now from Hammersmith and Fulham, they certainly seem to have improved. It depends on how much respect or credibility an organisation places on the commissioner.
Doug Wills: This goes back to the point on trust and whether the FOI has increased trust. It is the response itself, and, if there is a name-and-shame approach, it will either increase trust or lead to action to bring that about.
Q167 Nick de Bois: I am still somewhat impressed that you are in fear of this Select Committee, but perhaps I could turn to you, Mr Higgerson, first of all. What effect would routine charging for the use of the Act have, in your opinion, on both regional and national media?
David Higgerson: Certainly for regional newspapers it would result in the reduced use of the Freedom of Information Act.
Q168 Nick de Bois: Have you ventured an estimate of how much that might be?
David Higgerson: One figure that was floating around was £25 per request. We would have a situation where many of our newsrooms would come to the conclusion that, because we would not be guaranteed a result from FOI requests, they would probably stop using it altogether.
Q169 Nick de Bois: Mr Wills, I think you share that view and are fearful of such a suggestion that may come from us. I do not anticipate it will by saying this, but, in fairness, the reality is that you, as an industry, are using the FOI to support your own commercial ventures to help you publish stories. Would you agree?
Doug Wills: I would not agree with using it to support our commercial ventures.
Q170 Nick de Bois: You sell newspapers and advertising.
Doug Wills: Of course. It is a very broad discussion, but the role of the press is various. Yes, we need readers to read the paper, and advertising comes in as a result of the readership. Equally, the role of the paper is broader than that, and there is a public interest. We have talked about trust and public debate, but without the newspapers carrying the articles that we have been talking about there will not be that public debate.
Q171 Nick de Bois: I accept that. I do not want you to prejudge my views, which I will share with you at any time, but do you accept or do you believe that it is reasonable that taxpayers should be funding this so that you can have dramatic headlines and help to push newspapers, television or whatever it may be?
Doug Wills: I would like to get some dramatic headlines out of some FOI questions. The truth is, however, that many of the FOI requests are not dramatic headlines; they are more like public debate articles.
Q172 Nick de Bois: All right, but that is splitting hairs slightly. You either use them or you do not.
Doug Wills: Of course we use the articles, but they are not dramatic headlines.
Q173 Nick de Bois: Okay, it is content.
Doug Wills: I do not believe that circulation soars as a result of most FOIs. That is not what we are talking about here.
Q174 Nick de Bois: Let me explore this because you have not really answered the question. I do not know what the national figure is, but it will be millions that is put into this. Is it right that the taxpayer should be funding that which you use, whether you like it or not, in your publications, which have a commercial value?
Doug Wills: If the information was available without the need for FOIs, that would be another way of tackling this. I do not believe it can be isolated in the way that you suggest.
Q175 Nick de Bois: Is it not unreasonable, if you follow my premise, which you are resisting and I respect that, that you should make a contribution to it?
Doug Wills: I think it is unreasonable for the reasons that I have given.
Q176 Nick de Bois: Because it would reduce the volume.
Doug Wills: It would reduce the volume of questions, unquestionably, even at the Evening Standard, which is a larger newspaper than the local weekly papers. It would reduce the number of questions that we were putting for budgetary reasons.
Q177 Nick de Bois: The evidence suggests that in Ireland there was a dramatic drop in 2003 when the Act was introduced. We took evidence from Professor Robert Hazell last week, who said that the use of it had gone back up and they are still charging. Is that not something that, to be fair, you should consider is not necessarily going to blight your use over time?
Doug Wills: Perhaps they are not as challenged as we are with our budgets, because local newspapers, particularly, are facing more challenging times than ever before.
David Henke: May I say-
Q178 Nick de Bois: I was going to ask you a specific question, Mr Hencke, but please do go on.
David Henke: I fundamentally disagree with you over this for two reasons.
Nick de Bois: I am asking a question.
David Henke: The point is that newspapers, media and blogs-I am now freelance-basically write stories, but generally the public are interested in the issues about the stories. They have the time and resources. They have already put their own money in a commercial venture to spend the time that probably an ordinary member of the public could not, unless they had nothing else to do with their life, to find out and get to the bottom of this. As well as being a commercial service, they often provide a public service by highlighting issues that have gone wrong.
You speak of the taxpayer funding it, but I would get a bit cross if a charge was to be implemented because I am a taxpayer and I pay for all these services. I cannot opt out as I can when shopping; if I am fed up with Tesco, I can go to Waitrose. I have to pay the tax, yet you want to charge individuals and organisations to find out whether the money that has been taken off them is being used properly and what is going on. I think that is wrong.
I know that it is jumping to another area, but one thing that I would say, with the move to private companies providing public services, to my mind, is one change that could be made to contract law. For instance, if someone is in A4e and earning £180 million, I do not see why it should not be written into the contract that they have to come under FOI because they are using our money and you are charging me twice. You are taking my money for the service and then saying, "If you want to find out anything else, you have got to pay."
Q179 Nick de Bois: We explored that in some of our questions last time because it implied public funding going on it. I have a final question on the regional press, although I know that you are with The Guardian. I have two fantastic local newspapers-the Enfield Independent and the Enfield Advertiser-but there is a lot of information out there published by local councils after the introduction on expenditure of over £500. I know that they are restricted in the amount of time that they have for wading through lots of information, or even too much information, to find what they are looking for. Do you think that that could lead to the FOI being used for fishing exercises, which I hope you might think is not necessary?
David Henke: It should not be necessary if the local authority and the organisation have a good publication scheme. That sort of fishing exercise, trying to find out about 140 authorities on this and that, is normally on public interest matters such as how good the community police are or whatever. If they have a good publication scheme, it is rather like-
Q180 Nick de Bois: Can you think of one?
David Henke: I am trying to do so.
Q181 Nick de Bois: If you do, please let us know, as that was my final question.
David Henke: That would make a difference. It is rather like with Whitehall. I was checking a salary with the Cabinet Office. It just said that it was in the public domain and I did not need an FOI. It saves a lot of money. It points you to the press office. If they provide a good publication scheme, in some ways it reduces the need for FOI.
David Higgerson: May I make a point? You mentioned spending of £500. We sometimes hear from councils that they are being more open than ever with the data that they are putting out. Being brutal, however, the council spending data is next to useless for regional journalists in many respects.
Q182 Nick de Bois: You probably need to follow up with an FOI request.
Doug Wills: If you use Birmingham city council as an example, we could probably go through the press office to ask a question. If you are a member of the public looking through the city council’s spending, it will tell you the name of the vendor and the amount spent, and it will give you the incredibly helpful invoice number, but it will not tell you what it was for. If you wanted to know how much the council was spending on grit, you would have to know who supplied grit out of all the firms across 200 pages on a spreadsheet. In Birmingham city council’s case, it says that, if you want to ask any questions about this data, you have to put in a freedom of information request.
Q183 Ben Gummer: As data controllers, which we all are by law, we have to pay a little fee to be a data controller under the Act. You have to pay a fee if you photocopy so many things so many times. Indeed, if you agglomerate newspaper content and then send it out to clients, you have to pay a fee, and a recent court judgment has just reinforced that. Why should the same principle not apply here, where, according to turnover, commercial organisations should pay a flat fee every year in order to have access to FOI?
David Higgerson: It is because, as taxpayers working for that organisation, we have already paid for the functions of those organisations that we are seeking to hold to account.
Q184 Elizabeth Truss: I was interested in the comment that the newspaper industry is feeling the squeeze. We have a massive squeeze at the moment on public finances, and we need to make sure that we are not spending money on hunting down vexatious FOI requests. It seems to me that in the case that we heard from the universities- and I know that we are moving on to that in the next session-we are talking about it being free to make an FOI request, whereas having to collate all the research yourself means that you would have to pay a researcher to do that.
At the moment there seems to be an imbalance, where the FOI becomes the easy option. Would it not be better to level up the cost so that those requesting an FOI at least pay the cost so that we can get value for money for the taxpayer? With all due respect, you are not ordinary taxpayers. Many people in this country do not make FOI requests at all, but they are paying taxes for these public servants to find out that information. It will be a much more economically efficient system if people pay the true cost of the research work being carried out on their behalf directly, otherwise you will get misallocations between Government Departments, and, indeed, between the public sector and the newspaper industry.
Martin Rosenbaum: Value for money for the taxpayer comes from the fact that information that is in the public interest-that is often the criterion that decides whether or not it is released-is released and available for people to read and discuss and inform their decision making. I would particularly argue that the media’s use of freedom of information is the most cost-effective form there is. We then tell millions or hundreds of thousands of people about it.
Q185 Elizabeth Truss: I do not disagree with that at all.
Doug Wills: A greater cost would be for local authorities-thankfully, many have now stopped doing this-to produce their own newspapers to put the information out instead of the local newspapers doing that job, being selective in the information and also presenting it in such a way that it is actually read. I think that a service element comes into this.
Elizabeth Truss: What about this level element that I am talking about?
Chair: I think we should move on.
Q186 Mr Llwyd: Do you think that FOI should continue to apply to all public authorities in an equal manner, or is it disproportionate to apply the same scheme, for example, to central Government and universities? I know that you were sitting in on the previous session and you might be able to short-circuit an answer, but I should be grateful for your response.
Martin Rosenbaum: There is an issue behind this, which is to do with the private-public division, and the fact that more and more things are being contracted out. In everything from private prisons, housing associations and so on, we see the blurring of the private and public. There are complex questions about applying the FOI regime as it applies purely to public bodies to bodies that are a mix of public and private. I am not sure what the best means is of doing that, but it may be the case that you end up with a system that is in some respects different for bodies that are mixed rather than purely public. That would be my personal opinion.
Q187 Mr Llwyd: In the case of London university, for example, apparently the figures show that only 14.6% is publicly funded. It is not quite the same, but 14% of London university’s activities could be subject to FOI. That would be a perverse result.
Martin Rosenbaum: Yes.
Doug Wills: You would hope that the public-spiritedness of everybody, including the university representatives who were here, meant that they were talking in the way that they were because they wanted to be transparent. Rather than say why should it be, I would say why should it not be?
Mr Llwyd: I take your point.
David Higgerson: We have an example of FOI being applied differently to different authorities already in the form of how the Freedom of Information Act is applied to the BBC. The experience that my colleagues have had with the BBC is that it is very difficult, when you are used to using FOI or dealing with authorities that use FOI in one way, then to have to deal with an authority that has different exemptions in place. That has made it quite tricky to get information out of the BBC, which we would argue is not something that should be covered by what I think is called the artistic and journalism exemption.
Doug Wills: Derogation, as we call it.
David Higgerson: That has made life quite hard. If that was applied to lots of different organisations, it would probably defeat some of the founding principles of the Freedom of Information Act.
Q188 Mr Llwyd: How can we protect the right of the public and the media to continue to obtain information under FOI in circumstances where public services are outsourced to the private sector?
David Henke: It is quite simple: follow the money in the sense that, if the whole public service is outsourced, I am afraid the company or the provider should be subject to the full FOI, because otherwise you will get a two-tier system. If, say, in the NHS Bupa decided to do lots of operations for the NHS as part of getting taxpayers’ money, it would have to provide information on how well their services are doing and everything else.
Q189 Chair: That is the situation now, in that doctors’ general practices are private businesses and are not subject to freedom of information, although they are in receipt of large amounts of public money that pays for almost everything that they do.
David Henke: This would be the very sort of thing that I was going to say.
Q190 Chair: That has been the situation since the beginning.
David Henke: It ought to be changed. I also think that it applies to major rail companies that are receiving large subsidies to run services. Given the scale of a lot of these contracts-they are for hundreds of millions or even billions of pounds-the cost of FOI would be relatively very small compared to the cost of the contract. Frankly, I do not see why they should have the use of our money and be completely unaccountable for what they are doing with it. I think that is wrong, to be honest.
One brilliant thing I would like the Committee to do would be to recommend something that we were supposed to do when I was on the advisory committee. We were supposed to include a select number of private bodies that were funded by the state, but that was delayed because Whitehall kept saying to us, "Oh, no, we can’t; this list is too complicated." It has been doing that since 2001. Now, in 2012, it is about time that it was substantially extended.
Q191 Mr Llwyd: Of course, in 2001, there were far fewer of them, were there not, so the need is presumably far greater now?
David Henke: Absolutely; it is.
David Higgerson: We have cases where Birmingham city council refused to release information relating to things that it had worked on because that work had been outsourced to Capita. Liverpool city council, which has a very poor track record on freedom of information, at times verging on the edge of parody in how it behaves with the Freedom of Information Act, is also very good at saying, "We can’t release that information because it has been outsourced to a public-private partnership." That makes life very difficult for us.
Q192 Karl Turner: There seems to be a marked difference in the media’s use of the Act to obtain information from central Government as opposed to local government. What is the reason for that?
David Henke: Do you mean that central Government do not get as many requests?
Karl Turner: Yes.
David Henke: I think that the reason is quite simple, having worked on a daily paper and now working as a freelance. The other revolution that has happened in the 10 years since FOI is that it is now a 24/7 agenda. Journalists, particularly lobby journalists, are pursuing things. When using freedom of information, we are talking about stories that we are possibly not going to write for six or eight weeks. Indeed, with my story about the Student Loans Company it was a few months because we had to work out exactly what was happening. I actually put in more FOI requests now that I am a freelance working for the investigative news website ExaroNews, which only does investigative stuff. It is a fascinating thing; it was set up by venture capitalists on the ground that the changing media will mean that there will be specialist websites. Journalists are rushing around too much, but the Sunday papers probably do a bit more, and the BBC can do so now, but the main reason is that there is a different culture and change in the way journalists are reporting things.
Martin Rosenbaum: It is also to do with the information that we get. The BBC puts in requests nationally, and many are made at the local and regional level. The latter is for figures and data that are very easy to get, for instance, to do with performance of public services; that is what you get from local government, police forces or ambulance trusts and so on, whereas the sort of things that you might be interested in at the central Government level are not really the sort of information that is easy to get. I am thinking of performance measures and that kind of thing. It is more to do with the data.
Q193 Karl Turner: It seems that only a limited number of journalists use the Act to obtain information. Is there any particular reason in your view?
Martin Rosenbaum: It is the reason that David hinted at, which is that, if you are working with daily journalism, FOI is useless to you because it is for stories that you might end up doing in six weeks or six months or, in one particular case, in five years.
Perhaps some of my colleagues live in fear of this Committee, but I live in hope, and my hope is this. If there is one thing you do, you crack down on delay within the system. I mean delay where public authorities extend the public interest test time after time, for months at a time, and delay at internal review where no limit is laid down in law and which can carry on for months and months. The big problem with the system is delay, and if you can do something about that I would be very happy.
Q194 Karl Turner: If an amendment to the Act required requesters to explain their motivation for the information, do you think that would have any impact?
Doug Wills: Yes, I do. It would have a negative impact. Again, the question is why: for what purposes could the information be required? If the purpose was to exclude certain questions, it would be negative and I see no advantage in that.
David Henke: I concur. Why should anyone want to know why you are asking? FOI officers should be looking at what the law says and say that, if the information is available and in the public interest, it does not matter who gets it. I think that it is the same principle internationally in the sense that I know under the US Freedom of Information Act-incidentally, that too, is free-you can apply as a British citizen, as I have, for information about Britain held by America. It is quite fascinating, because in some ways they are far more liberal. Believe it or not, one example of that is the royal family.
When I was on The Guardian, we put in a request to America. It was following the death of Princess Diana. We asked what information they held and were flabbergasted to get back a description by the American ambassador of Diana’s funeral and how appallingly the royal family had reacted, comparing it with the Government. There was also some fascinating stuff about Diana’s campaign against land mines. We did not know this, but they had sent the American Secretary of State graphic descriptions of British embassy receptions in Angola, including a wonderful one where you saw her in quite a good light, as she insisted on seeing local, ordinary people, but there was this huge row with Rio Tinto Zinc, who though that they could not meet Princess Diana and this was terrible. The Americans recorded all this and released it under FOI. I am sure that the Foreign Office would not have done this.
Q195 Chair: I have one final question. Much of the strength of the case that you have put to us today has been on the basis that you perform an important public role. Would it not be better if you were subject to the Freedom of Information Act? That is a serious question. One person at the table is accustomed to the Freedom of Information Act at the BBC, which is quick to make use of exemptions when it wants to protect the pay levels of various performers.
Martin Rosenbaum: The salary levels are published, but it is absolutely true that the BBC has a derogation, as David said, for journalistic material, and the BBC does use that.
Q196 Chair: Would it not be relevant for someone to be able to inquire, if a story is written by a journalist about, say, the expenses of a local councillor, what expenses regime the journalists themselves were subject to so that any relevant interest could emerge from this? Would it not be relevant to find out on how many occasions a newspaper had obtained information by making payments to public officials? It has taken an internal process in a newspaper group, sparked by chaos and all sorts of things, to bring that about. If it was allowed under the Freedom of Information Act, would not some of you be applying under it to media organisations to find things out?
David Higgerson: If the start point of the Freedom of Information Act is giving people the right to know how organisations that they fund spend that money and do things with that money, then privately-run news organisations would be the same as any other business and would not be covered by the Act. Certainly the growth of the internet and social media has created an environment where news organisations need to be much more transparent, but, unless the news organisation is receiving substantial funding from the public sector or from the public purse to do its job, I would argue that it should not fall under the Act.
David Henke: I would accept your idea if you extended it to all private companies.
Q197 Chair: You have a special public role, do you not? Is that not what you are saying to us in relation to FOI?
David Henke: Yes, although the argument might be that we get advantage from taxpayers’ money being spent on our inquiries, and, also, you would have to draw a very careful line. I am sure that it would be massively interesting to Her Majesty’s Government to find out who tipped me off about the Student Loans Company to put in an FOI. Journalists have a really important role in protecting their sources, and that will be one very mitigating factor in this. We would have to have an exemption.
Doug Wills: An openness has been brought about or re-emphasised in the last 12 months particularly, but also before that, with the Press Complaints Commission, which is obviously now going though Leveson. You may jest and raise a question on that, but there has been a commitment to that. Again, we are talking about local and regional papers, but that is very different from some of the things that we are hearing. There has been an openness about gifts and anything else through local and regional newspapers. They do that now and have done so for years.
Chair: Thank you all very much indeed. Thank you.