mySociety’s Freedom of Information website WhatDoTheyKnow is run by a team of highly dedicated, unpaid volunteers. Between them, they have a great understanding of the FOI law in this country, as well as a unique insight into the type of information that it has brought into the public domain.
In the light of the current threat to FOI, the WhatDoTheyKnow team will be submitting a formal response to the cross-party commission on Freedom of Information. Below are some of the reasons why they oppose the proposed restrictions to the UK’s FOI Act.
If you agree with them (or perhaps you are a WhatDoTheyKnow user and you feel that these statements ring true in your own case), see our previous blog post which outlines four easy ways in which you can help protest against these restrictions.
On the need to cut costs: “Information released via Freedom of Information responses is used to inform debate and scrutiny at all levels from local community meetings, through local council chambers, to the House of Commons. Our democratic system does cost money: elections, councils, Parliament are all expensive. Freedom of Information helps ensure we get value for that money, and helps our democracy function, by enabling deliberations and decisions to be well informed.”
“Money spent responding to Freedom of Information requests needs to be considered in the context of wider public spending. In 2012 it was reported that Staffordshire County Council had spent £38,000 in a year responding to Freedom of Information requests. The then Director of mySociety, Tom Steinberg, commented: From this I can see that oversight by citizens and journalists cost only £38,000 from a yearly total budget of £1.3bn. I think it is fantastic that Staffordshire County Council can provide such information for only 0.002 per cent of its operating budget.”
On reducing the burden for public authorities: “We would be happy to see public bodies engaging with requestors, proactively offering advice and assistance, and suggesting ways a requestor can be satisfied while minimising effort required by a public body. Public bodies assisting requesters by explaining how they hold information and how a request could best be formulated in the interests of both requester and public body is all too rare. There appears to be a significant opportunity to improve the functioning of our access to information regime though a change in culture and mindset in this area.”
This is an important fight but not one that is easy to win. Ireland amended its FOI statute a few years ago to require requesters to pay costs, with predictable results: requests went way down and it became much more difficult to expose instances of waste and inefficiency in government. Unfortunately, it appears that FOI laws that do not apply costs to requesters are as unstable as superheated water.
In the USA, FOI laws typically have cost-recovery provisions, though their exercise is discretionary and the agency handling the request must invoice in advance for estimated costs if it decides to charge. In some states there is a trend for agencies to charge not just for research and document supply, but also for an agency employee to supervise the requester when documents are inspected in person. In others there is a recognition that charging (and also the uncertainty about whether a given agency is likely to charge) discourages requests, so there is provision for ‘de minimis’ requests up to a certain amount (say $25 or $50) to be handled free of charge.
Delaying games are also quite common, not just in the US states but also in the UK under the version of FOI that applies in England and Wales. Some US state FOI laws allow the receiving agency to delay a response if the records are housed at a satellite office; in Pennsylvania, for example, PennDOT routinely exercises this in respect of highway construction plans archived at its district offices, with the result that it takes two months to get a substantive response. The approach in England is more subtle: the requestor is told that the document classes specified in the original request are not delineated clearly enough, and is invited to write back to supply more clarification. Once received, the clarification may require further elucidation. Enough back and forth, with enough delay built into each iteration, is often enough to get the requester to give up.
I am increasingly of the opinion that an important prong of FOI strategy is to encourage agencies to implement self-service access to a broader range of document classes, so that the question of bothering civil servants to supply documents is less likely to arise. But good FOI laws are important in instituting a culture of open access, as is shown by the counterexample of Spain, where access to public documents is controlled by an administrative proceedings law that allows officials disinclined to release records to require requesters to prove either that the relevant file is closed or that they have a substantive interest (involving something tangible like money or land) in the contents.
Thank you for this very thoughtful and informative comment.