@FoIManUK is an FOI practitioner who has been ‘on the inside’ of the public sector for many years. He now also blogs about how the legislation works from the ‘inside’. Here he talks to Help Me Investigate about the impact of FOI legislation, the difficulties both users of the Act and FOI officers face and the future of government ‘transparency’:
What are your motivations for starting the blog and what to you hope to achieve from it?
Like many FOI Officers, I really enjoy my job. But it can be difficult getting caught in the crossfire between requesters and colleagues. It’s also frustrating seeing things reported in the media and not being able to respond. So the blog is really a reaction to that. I want to be able to get over what it’s like being in our role and why decisions are reached which might not be popular. In particular, the concerns we and colleagues have are usually not about trying to hide information, but more often about the impact on our authority’s work (which can obviously impact on the public ultimately). A pleasing side effect of writing the blog – that I wasn’t really anticipating – is that the blog and comments thread is becoming a useful forum to bring FOI Officers and requesters (including journalists) together and talk about FOI in a less confrontational way.
Do you think the current legislation works (for practitioners/ journalists/ general public) and is there anything you think should be changed to make it easier to use?
The FOI Act gets a bad press in my view. If you compare it to similar legislation in other countries, it is remarkably open – I often think more so than the legislators realised when it was going through Parliament. Two fundamental things were incorporated into the Act during its passage which make it very effective. One – the power of the Information Commissioner to order disclosure; and two, the public interest test for most exemptions (which really enhances the power of the Commissioner as well, as he can rule on whether the PI test has been applied correctly).
People talk about there being too many exemptions, but that’s not really the point – it’s what you can withhold that’s fundamental. The Federal US Act, as I understand it, has fewer exemptions, but they’re broader and not subject to a public interest test, so in theory at least, it is much easier to withhold information in the US (though undoubtedly it depends which state you’re in and because it has been going since the 60s, there’s perhaps more of an ‘openness’ culture in the public sector there). The Australian equivalent has just been amended to make it more open, and the changes made reflect the approach of the UK Act, with more public interest tests and a powerful Information Commissioner.
What could be improved?
To be honest, I don’t think there’s much wrong with the Act itself. Possibly a requirement to state when you’re making an FOI request would make it easier to administer. But the main things that inhibit FOI are to do with how it is implemented, not the legislation itself. The Information Commissioner should have far more resources (and not just quantity, quality, in terms of the skill sets that they have available) so that complaints can be resolved more quickly. He should be funded by Parliament rather than MoJ.
I disagreed with the decision to remove the public interest test from correspondence with the Royal Household – that happened because FOI Officers (and I’m sure the ICO) were telling them that they couldn’t always withhold such correspondence. That wasn’t popular with the Royal Household, but personally I think that we should have a right to know if members of the Royal Family are lobbying public authorities.
I think there’s also a need for a debate about how to manage the impact of FOI on public resources – I’m not in favour of a charge per request as some authorities have suggested recently, but I understand their concerns and it would be great to have a proper discussion about it without political point scoring from all sides.
Overall, how do you think the legislation has impacted public sector organisations?
It’s definitely had a positive impact, though I’m not sure that’s always immediately clear to public employees. It has enhanced the sense that we’re accountable to the public. Whether it’s through fear of being found out (probably sometimes) or just generally through that sense of accountability, I think it has made people think more carefully about expenditure and controversial decisions. In some cases, that’s quite important. Some public sector organisations have not faced rigorous scrutiny from elsewhere and FOI acts as an additional check on them. I think FOI saves a lot of money in the long term, but it’s virtually impossible to quantify that. The ‘chilling effect’ is often spoken of as a bad thing, but if public employees take more care about what they write that’s a good thing. We have too much information if anything!
I think a lot of public employees (not just FOI Officers) would complain about the amount of time and effort that they have to spend on answering requests, not because they’re secretive, but just because they already have demanding jobs to carry out. And that’s not going to become any easier in the next few years. I worry particularly about organisations that are already under a lot of pressure – is it right to expect a hospital, for instance, to drop everything to ensure that an FOI response goes out on time?
When dealing with FOI requests, what is the most common or most frustrating thing in the eyes of the FOI Officer?
Probably requesters just not being clear enough about what is wanted or asking for too much. We’re occasionally accused of deliberately misinterpreting requests, but if your request is ambiguous it may well not be deliberate. A surprising answer might be that in some cases, at least, it is really frustrating when a requester doesn’t follow up with a request for internal review. Sometimes the FOI Officer argues in favour of disclosure but is overruled. If requesters don’t make complaints, over time it can weaken our position/ability to persuade the organisation to take FOI seriously. If there are no consequences, authorities can become complacent.
As a practitioner, what do you think can be improved on the ‘inside’ to deal better with requests?
Firstly, however reasonable their complaints about resources, elected politicians, senior managers and staff need to accept that FOI is here to stay and respond in a positive way to requests passed to them. As FOI Officers it does get tiresome having to defend the legislation (which we didn’t enact, whatever our views on it) for the umpteenth time. That doesn’t mean that we always disclose information, but it does mean not shooting the messenger and instead working with the FOI Officer to ensure that where appropriate information is withheld, and everything else is disclosed on time. We should design our systems to be more flexible, allowing them to be more readily interrogated (although that’s not as easy as some people believe). Records management as a whole needs to be improved – we need to know what we’ve got – but that’s not unique to the public sector. And yes, we do need to publish more.
Using FOI legislation can become frustrating for the requester when they can’t get the info they want. How do you think this could be combated? Is it about better knowledge and training?
Much of the feedback I’ve had is that authorities have been helpful and provided information. It’s in a minority of cases that people aren’t happy. I think better awareness all around is part of the answer, but I don’t think you can entirely remove discontent from the equation. If someone doesn’t get what they want, they’re going to be disappointed however justified the authority is to withhold it. But educating people is part of the answer. I once had a journalist turn up to get their response in person, and when they saw that we’d applied exemptions, they insisted that we couldn’t do that. They’d read Heather Brooke’s book (Your Right to Know) and claimed it said that we weren’t allowed to withhold information. I’m pretty sure that even Heather wouldn’t say that we’re not allowed to use exemptions at all!
It’s clear that many journalists are using the Act to request information – what is your opinion on this and do you think that the idea of ‘opening up’ Government is directed at the general public or more so at the media?
I’ve got no problem with journalists using the Act, but it is supposed to be for everyone, and it’s important that no one group gets special treatment – we’re supposed to consider requests in a ‘purpose-blind’ manner. Some FOI practitioners and other public officials do talk about FOI being a ‘journalists’ charter’ as though that were a bad thing. I can’t say that I agree – often journalists ask the most interesting questions and use the information most effectively. That said, there are things that journalists in particular do that cause irritation to FOI Officers and their colleagues, e.g. publishing information out of context, even when that context has been supplied; not using information that has taken a great deal of effort to provide; and the ‘fishing expeditions’ – very broad ranging requests made to try and flush out issues – that last one always causes irritation. But to shamelessly misquote Voltaire, “I disapprove of your request, but I will defend to the death your right to make it.”
How do you see the Government’s ‘transparency movement’ and developments in open data impacting upon FOI legislation and its use?
I think that having the political will to get more out there does make a difference. Having said that, some of the recent announcements seem just to be redressing information that was already out there. The big press conference the other week made such a fuss about publishing departmental business plans on the No 10 website. Much of that information was already available on departmental sites I suspect, and how exactly we’re supposed to use them to hold the Government to account is a question that has yet to be answered. It all sounded like window-dressing to me. But maybe I’ll be proved wrong.
In terms of how it will impact on FOI, I don’t think it really requires any change to the legislation to do what they’re proposing. If politicians want data to be made available to businesses and others more readily, they just have to order their officials to do it. Where this doesn’t happen at the moment, it’s usually because officials are being asked “why should we give information prepared at public expense to businesses at no cost?” by the politicians or senior officers themselves. There’s very much a mixed message from our political masters and senior management.
One of the great myths is that publishing more data will cut down on FOI requests. There’s very little if any evidence that this happens so far. In one authority that publishes a lot of data, they looked at this and concluded that if anything the requests went up because the data provoked people to ask for greater granularity. I also think that people should be very careful that politicians’ support for Open Data doesn’t become a Trojan Horse to weaken FOI. At the moment YOU can choose what you want to ask for; that’s very powerful. With ‘Open Data’ initiatives at present, it is still the authority deciding what it wants you to see.
Another issue is that very often, the people dealing with ‘open data’ initiatives are entirely separate to the FOI Officers in an authority, and rarely consult them. I remember one situation where I found out about a month after data had been published that it was on our website. I then had to hurriedly update our Publication Scheme, which is supposed to be a comprehensive guide to what we make available. If FOI Officers can be properly involved in this process it will help authorities and potential requesters get the best out of this.
What do you think about sites such as What Do They Know – is it a good thing that FOI requests and responses are shared publicly?
Personally I have no problem with WDTK and I do think it’s useful. I do understand though why some FOI Officers and public officials take a different view, and I can certainly see how WDTK could be misused in certain circumstances. I’ve covered this issue in more detail on my blog.