Hands Off FoI: Information Commissioner urges Government not to introduce fees and praises role of the media

The Information Commissioner’s Office has said the “the current checks and balances” in Freedom of Information legislation are “sufficient”.

In a submission to the Independent Commission on Freedom of Information, the data watchdog also stated that introducing FoI flat rate fees would be “disproportionate”.

Journalists often have to battle with Information Commissioner Christopher Graham, who has the right to block the release of information. So his support for the status quo on FoI, as the impartial enforcer of the act, will be seen as a boost for the campaign to protect it from being weakened.

The ICO said the FoI Act allows “awkward questions” to be posed to public bodies, which is “part of democracy”.

The body also praised the media’s use of FoI, highlighting recent stories uncovered by the BBC, Sun, Daily Mail, Times, Guardian and others.

The cross-party commission is currently gathering evidence on whether to introduce FoI fees and strengthen ministerial veto.

In response, Press Gazette has supported the Society of Editors’ Hands Off FoI campaign and launched a petition urging the Government against harming the act. It has so far been signed by more than 41,000 individuals.

In its 25-page submission to the commission, the ICO said: “FOIA can rightly challenge and pose awkward questions to public authorities. That is part of democracy.

“However, checks and balances are needed to ensure that the challenges are proportionate when viewed against all the other vital things a public authority has to do.

“The Commissioner believes that the current checks and balances in the legislation are sufficient to achieve this outcome.”

It said: “FOIA rights are crucial rights for the public in today’s information age. There are clear benefits evidenced each week, as examples emerge about a wide range of public interest issues that have led to further public debate.

“The benefits of FOIA are wide-ranging but can be difficult to quantify. Whilst research can look at the impact of the specific requests and how they have informed the public, it is much harder to assess the wider benefits.

“The value of FOIA also comes from the more general spotlight it shines on the public sector, which helps to drive an open and responsive culture. There is more to be done to get public authorities to see the benefits of linking FOI to developing a more open culture within their organisations and also to enhancing customer service.

“This culture change will only come with the backstop of a strong FOIA and associated enforcement regime.”

On the role of journalists, the ICO said:

The media plays an important role in FOIA as a user. Less than one in a thousand members of the public makes an FOIA request, so the media is the main route via which the public receives information disclosed via FOIA. To take a snapshot, in one week alone (w/c 2 November 2015) the following stories were reported in the media as based on FOI:

· An investigation by BBC Radio 5 Live into the number of outstanding child abuse cases, picked up by The Sun, Daily Mail and Daily Star (8/11);

· Town councillors claiming £1bn in allowances and expenses over five years (Sun 8/11);

· Police and Crime Commissioners redeploying senior officers to support them in administrative roles (Mail on Sunday 8/11);

· 26 ‘terror’ prisoners being held in medium security Category B jails (Sunday Star 8/11);

· Action to be taken to stop primary schools ‘cheating’ at KS1 exams (Times 7/11);

· House of Lords reviewing its IT register after the Press Association exposed ‘chaotic’ record keeping (Mailonline 6/11);

· The number of children seeking advice about gender identity has risen by 100 per cent (Guardian 5/11);

· HMRC has £2.6 million in unpaid bills including invoices from small businesses and charities (Daily Mail 4/11);

· The Sunday Times (8/11) told the stories of several police widows, who were no longer entitled to their husbands’ pensions because they had remarried. The stories were backed up with information obtained through FOI about the number of spouses who lost pension rights in that way;

· The Sun (8/11) ran a piece about the number of mother and baby deaths in UK hospitals by speaking to families who had lost loved ones. The article was backed up with FOI information about the number of maternity units that had been temporarily closed.

· The Daily Mail covered an investigation by the Forum of Private Businesses that looked at 300 FOI responses to conclude that English councils are paying suppliers promptly (7/11).

· Most of the media covered a report by the Children’s Society that drew on statistics obtained through FOI that some 45,000 teens were not reporting sex attacks (4/11).

· Plaid Cymru discovered, through FOI, that there are 1,240 full-time equivalent nursing vacancies across Wales’ seven health boards (ITV, 2/11).

On the prospect of FoI fees, which Press Gazette’s petition warns would represent a “tax on journalism”, the ICO said: “The Commissioner is concerned that a flat fee would be a disproportionate measure because of its deterrent effect on a wide range of requests and requesters. It is worth noting that a flat fee of £10 (the same as for a subject access request under the Data Protection Act) would not enable public authorities to recover costs.

“It should also be recognised that charging a fee in itself creates an administrative burden, which is one reason why public authorities do not usually do it; the Constitution Unit found in 2010 that 62% of authorities they surveyed never quoted a fee for answering a request.”

It added: “Another option would be to charge for staff time. This could create a perverse incentive. The burden of dealing with FOI requests (ie the time spent on this) is greater if a public authority has poor document and records management systems, FOI procedures that are inefficient or not properly followed, ad hoc FOI decision-making processes, a low staff awareness of FOI obligations and a reluctance to make information available proactively.

“To introduce a time-based charge for handling requests reduces the incentive to improve bad practices; it makes the requester pay for the public authority’s shortcomings. Any system that charged for time would need to ensure that good records management was incentivised and bad practices penalised.”

The Information Commissioner did, though, accept that “it could be reasonable to review and research” the “appropriate limit in the fees regulations”, saying this “would be the most proportionate step to reduce the impact” of FoI on public authorities.

On the question of how much protection should be given to “internal deliberations of public bodies”, the ICO said it felt the current exemptions under sections 35 and 36 of the act are sufficient.

On ministerial veto, the ICO said: “The Commissioner is mindful of the significant constitutional issues raised by the Supreme Court judgment in the Prince Charles’ correspondence case. He recognises that this is ultimately a matter for Parliament to decide. He does, however, offer the following observations.

“The veto has been used sparingly over the last ten years, seven times in all. The Commissioner has on occasion expressed concern about its use in particular cases, questioning whether they were indeed exceptional; but overall the effect on the ability of FOIA to deliver transparency has been limited. The only time the Commissioner has sought to challenge the use of the veto via judicial review has been in the HS2 case under EIR, which was a broader matter of principle in relation to the EIR20. In the context of a public interest test applying to a wide range of exemptions, such as sections 35 and 36, the existence of an executive override, to be used in exceptional cases, can be regarded as a proportionate and reasonable provision.

“If concerns continue about the impact of FOIA on deliberative space and collective responsibility, providing for the possibility of a veto of the Commissioner’s decisions, in exceptional cases, is a more proportionate response to the concerns, compared to converting sections 35 and 36 into absolute exemptions. This would not exclude the possibility of any use of the veto being judicially reviewed.”

Read the full submission here.

(Picture: Reuters)

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