Freedom of Information
Think like a bureaucrat
The Freedom of Information Act (FOIA) came under examination in October's LFB meeting. Maurice Frankel, who worked for many years through the Campaign for Freedom of Information to achieve FOIA, was our speaker, along with Mark Watts, one of the Branch's own FOIA experts.
|Maurice Frankel of the Freedom of Information Campaign
To remind us how powerful FOIA can be, Maurice related some of the stories only made possible by FOIA over the last few weeks. A Prison Service manual advising officers to subdue disruptive youth custody inmates by poking fingers in their faces was just one example.
And the Action Against Medical Accidents (AVMA) campaign recently used FOIA to obtain data on the routine National Patient Safety Agency alerts sent out to all NHS bodies, who have to reply showing how they are acting on these alerts. One NHS trust in Coventry failed to comply with nearly three quarters of these, and other trusts that weren't much better were named and shamed. AVMA knew the system and how it worked, and targeted their FOIA request (to an agency no one's heard of) at the point in a bureaucratic process where they knew it would have most impact.
The secret, says Maurice, is not to think like a journalist but to do something much harder, to think like a bureaucrat. In the above case, "journalist-type" FOIA requests would have been a waste of time. Journalists have to find out from their contacts how the system works, and use this knowledge to blow it open. Citing a recent disclosure that showed how "brazen" the Housing Corporation was in finding ways to withhold information, Mark Watts says journalists still need their inside sources to get together a FOIA story. In the case in question, the applicant only eventually got the documents because a source in the Housing Corporation knew they existed.
When the Act came in, journalists expected that the Information Tribunal would be used to neuter the "dangerous, radical" Information Commissioner, but the Tribunal has proved more liberal and more effective in its judgments than the Information Commissioner’s Office (ICO). The Tribunal got disclosure of advice given to then Local Government Minister John Prescott on planning permission for Vauxhall Tower. (The advice was "refuse", he approved the tower anyway) In the case of its 2006 judgement on disclosing details of the 1980s Al Yamamah arms deal between BAE and the Saudi government the Tribunal made "astonishing use of the public interest test," ruling that it's in the public interest to lay bare the dealings of lobbyists.
When the Guardian asked the Higher Education Funding Council for England (HEFCE) for its database of universities with buildings not fit for purpose, HEFCE withheld this, saying it would breach the confidence of the universities supplying the information. But the Tribunal said HEFCE would have a public interest defence if sued, and ordered the release of data on leaky student dormitory roofs. The Tribunal effectively rules that contracts that are in the public interest cannot be withheld, even if they have confidentiality clauses.
The downside of FOIA is the delays, says Maurice. Those cases that do get handled within 30 days are nearly all the ones that got rejected. A quarter of cases go from an applicant raising a public body's decision to withhold data to an ICO decision within two to three years, and it's often a year before the ICO file on the case is even opened. Four years, four months is the current record for longest period before an ICO decision. But the new Information Commissioner (Christopher Graham) has made the backlog their priority, so this is improving.
In the early days of FOIA, you could use a pseudonym, but now they insist you use your real name. "Barnacle Bill", who made many requests for MoD data, received many replies to "Dear Mr Barnacle" or "Dear Mr Bill", but he eventually got a letter from the MoD saying they would only process his request if he used his real name. It was signed "DNES Pol Sec AD3". Both Maurice and Mark advised being up front about who you are when making a FOIA request.
When eventually produced by a public body, the data often comes with a copyright threat - it cannot be reproduced without permission, "for which a fee may be charged", or even a legal threats of prosecution, although such breaches would be a civil matter. Such threats accompany, for example, disclosures on how many parking tickets a borough has issued. Threats like this are mostly empty. There's no copyright on news, only on its exact wording (see the Freelance's guide to quoting). Any damages awarded would be equivalent to the amount the "creator" would earn for sale of their work. A public body that makes it their job not to disclose information is unlikely to sell that information elsewhere, so they might have a tough job proving "injury" from publication of their FOIA disclosures.
Maurice notes that some government departments have recently decided, on a voluntary basis, to issue new "open government licences", a licence in advance to publish FOIA disclosures on condition that it is reported accurately, and the publisher doesn't pretend to be acting on behalf of that body.
Mark Watts, former Sunday Business investigator and now with the FOIA Centre used to access information via the old Code of Access to Government that predated the FOIA, which was brought in by John Major's government. The law only came into force under New Labour.
|Mark Watts (centre), one of LFB's own FOIA experts
Mark notes that new governments embrace freedom of information, as an opportunity to reveal the "glorious screw-ups" of their predecessors. The Con Dem coalition are talking about extending the Act's remit to include at least eight bodies currently not covered, including Network Rail. But Mark warns that governments tire of FOIA, when they realise it exposes their own "corruption and foibles". In Tony Blair's recent autobiography, he calls himself a "ninconpoop" for allowing FOIA to get on the statue book.
Mark correctly predicted that there wouldn't be enough use of FOIA by newspapers and broadcasters. These, he said, prefer instead to endlessly reproduce press releases (preferring to use interns to do it for free). Or the media use the "dark arts" to obtain information illegally. But as recent events have shown, time has finally been called on the dark arts.