Justice CommitteeWritten evidence from Chris Sims, Chief Constable, West Midlands

As Chief Constable and Chair of the National joint ACPO/Home Office Reducing Bureaucracy Programme Board, I am writing in response to the call for written evidence for the post-legislative scrutiny of the Freedom of Information Act 2000.

On balance, I want to make sure that our statutory duty and the need for transparency and openness (which we welcome) have to be tempered with the services’ broader workforce reductions especially in the “Back Office” environment.

1. Does the Freedom of Information Act work effectively?

1.1 Making the FOI deadline 40 calendar days would bring together the timescales from FOI and Data Protection and would be more efficient, as it would allow for the same systems for the processing of requests. Making the FOI deadline calendar days would allow for easier calculation of deadlines and would allow it to be more easily automated.

1.2 For a significant number of requests the timescales are impossible to meet. Bringing the FOI Act into line with the DP Act would help to some extent, but an even longer timescale should be allowed for.

1.3 The cost of a single FOI request is set too high. Theoretically the Act is impossible to comply with, as anyone can make an endless number of requests, with no realistic judgement of what is possible to achieve.

1.4 The costs of each FOI should be reduced and there should be the option of aggregating the costs of requests on different subjects from the same requester.

1.5 There could be two-tiers of costs—with the lower threshold data being provided, regardless of the importance of the data in question. Where the costs are higher there should be a public interest test on the costs of locating and extracting the data (ie there would need to be some possible implication of the data for it to be located and extracted).

2. What are the strengths and weaknesses of the Freedom of Information Act?

2.1 A request should either be sent to a FOI address or mention the Act to be classed as a request under the Act. There is too much doubt about what constitutes a FOI request. This makes defining a request too complicated and allows for vexatious requesters to redefine a request as under the Act after they have received a response. As some “business as usual” responses are to an individual and not disclosures to the world the system is unnecessarily complicated.

2.2 It is clear that the application of Section 40 of the Act is overly complicated and unnecessarily difficult to apply.

2.3 Section 38 is too weak. The importance of an individual’s health and safety should be of paramount importance. The level of proof required by the ICO to prove an impact on mental health is unrealistic and the approach is not pragmatic enough. For example, with the victims of murder, it is clear that publicity of the murder affects the mental health of victims’ friends and family. Even contact by a Force’s Family Liaison Officer can disrupt the grieving process and so to gather evidence of harm in release would cause that harm. This cannot have been the intention of those who constructed the legislation.

2.4 There is an issue with the Chief Constable’s duty of confidentiality to his staff and the fact that Section 41 cannot be applied in these circumstances.

3. Is the Freedom of Information Act operating in the way that it was intended to?

3.1 The level of proof required within a public interest test is too high and it is too time consuming to find and present. A case-by-case basis creates a lot of extra work for requests which do not merit it. The amount of effort required to ensure harmful information is not released can be onerous. A simplified, more rational approach to the application of the public interest test could make the process less time-consuming and less bureaucratic. The ICO does not take into account reasonable assumptions based on logic and previous experience, leading to the “reinvention of the wheel” for requests with little public benefit.

3.2 The FOI Act provides a strong basic right and so there needs to be an equally strong emphasis on the obligations of the requester. It is clear that requesters are being allowed to abuse the privileges provided by the Act.

3.3 Public Authorities are not provided adequate protection against requesters who make frivolous requests and are clearly trying to tie up resources and make life awkward for public authorities. The ICO’s approach compels us to reply to requests which are little more than spam.

3.4 The ICO have allowed requests to contain racist, abusive and/or threatening language without the necessary protection for those answering those FOI requests.

3.5 Requesters should be prevented from using FOI to rake over the coals of issues that have been adequately investigated by the IPCC or the judicial system.

3.6 Applicant blind aspect of the Act does not work, either in theory or in practice.

3.7 The ICO should be responsible for any harm that comes from release of information that he has ordered to be released.

3.8 The Act should impel Public Authorities to have a FOI Officer role, in the same way as the DP Act requires an organisation to have a DP Officer.

3.9 There should be some protection for FOI officers provided by the Act. FOI Officers try their best under very difficult circumstances. Given the current severe financial constraints placed upon forces, FOI is putting an unreasonable and disproportionate amount of work on forces that are already under strain. Resources should be directed at frontline services.

3.10 The Publication Scheme is not “fit-for-purpose” and in need of review. It does not contain the information that people want and is very bureaucratic.

I accept and welcome our public duty, however, the service should not be using scarce resources to subsidise journalistic material for the media. Resources should be utilised to help genuine citizens and possibly moving costs to the media or the multiple or single FOI champions who have a cause.

I have provided the following information that you may find helpful.

Number of FOI applications for 2011 (West Midlands Police)

Total requests: 1,250.

From Press: 433.

Percentage from Press: 35%.

Number of FOI applications for 2012 (West Midlands Police) (up to 3 February 2012)

Total requests made: 126.

From Press: 45.

Percentage from Press: 36%.

February 2012

Prepared 25th July 2012