Today the House of Commons’  Public Administration and Constitutional Affairs Committee (PACAC) released its report on the Cabinet Office Freedom of Information Clearing House. 

We submitted evidence to the inquiry. It is also highly worth reading journalist Jenna Corderoy’s evidence, as her investigation and appeals are the big reason that the evidence we have exists, and that the inquiry happened in the first place. 

A summary of the evidence given to the committee can be found in this twitter thread. 

Reaction to report

Many of the committee’s recommendations (such as better procedures and more regular data about the Clearing House) are non-controversial, and indeed would be very good to see implemented. However, a big area of concern is their recommendation around how the ICO should be funded. 

There is an excellent line taken through the report that FOI is a good thing, that makes good things happen. It does not see the Cabinet Office’s coordination role as illegitimate, but does see it as pointing in the wrong direction. The report has a vision of the government embracing the positive benefits of FOI, and the Cabinet Office playing a leading role in setting the standard, and maintaining the direction across all government departments. Rather than a secretive role,  the Clearing House should be public and transparent about how it goes about its business. The Cabinet Office should not just ensure a compliant response across government, but advocate for the principles and benefits of Freedom of Information. 

The report’s recommendations constrain themselves to actions for the government, and do not address the potential for legal change to address the problems. While we generally argue that legal change is needed to bring UK legislation up to the Scottish standard and set firm deadlines for internal review and public interest tests (to prevent the abuse described in PACAC’s report), it would obviously be a good outcome for the government to proactively meet those standards.

But to be realistic, this would be a big shift in culture that seems unlikely to happen spontaneously. The report recommended that the Cabinet Office allow the ICO to conduct an external and independent audit of their FOI procedures. The day before this report was released, after months of delay, the Cabinet Office instead announced the details of their planned internal audit. This is not a good start, and legislative change is still likely to be required to meet the objectives the committee has set out. 

The area where the report falls down is in addressing the urgent problem of ICO funding. While the report has a clear sense of the scale of the problem, their proposed fix is unlikely to improve the situation, and might make it worse. 

At the moment, while government FOI policy is set by the Cabinet Office, the “sponsor department” which provides the ICO with its FOI funding is the Department of Culture, Media and Sport (DCMS). This existing arrangement is bad because there is a clear conflict of interest in the government having the power to underfund its own regulator. As is already the case with the Scottish Information Commissioner, the most suitable sponsor is Parliament itself. 

However, PACAC has decided the problem is not government funding, but that policy and funding are split between two departments. They recommend that either the Cabinet Office takes over funding, or DCMS takes over policy. Given the general approach of the rest of the report (and the role of the Cabinet Office working across government), the effective recommendation is that the Cabinet Office should be the sponsor department of the ICO and responsible for managing its FOI funding. This seems like a bad idea without substantial changes at the Cabinet Office happening first. 

In the happy future where the Cabinet Office is an FOI champion, it is possible to imagine this arrangement working, but this is not where we are now.  The Cabinet Office is currently one of the least suitable departments to be trusted to treat the ICO appropriately. Evidence from the previous Information Commissioner stressed that one reason they are not able to use their full legal powers to address issues is a lack of funding. The Cabinet Office has fairly directly benefited from an underfunded ICO, in that the system of regulation meant to prevent the problems described in PACAC’s report just doesn’t have enough resources to work correctly. It would be a bizarre outcome of this process to give them even more direct power to make this happen. 

The positive understanding of FOI from this committee is very much welcome, as is the pushback against new bodies being excluded from Freedom of Information. But wider changes are needed to bring this vision of how FOI improves good governance into practice. As we have argued before (and will set out in more detail in the next few weeks), the most appropriate long term arrangement for funding the ICO is through a direct grant from Parliament. Legislative change to make key principles unambiguous, and to learn from best practice across the UK and further afield, are needed to take us further along the road into the positive future imagined. 

Summary of PACAC Recommendations 

For Cabinet Office

Clearing House

• Publish more data about the performance of the Clearing House.
  • Return to the previous standard of the number of referrals to the Clearing House split by department and month, quarterly.
    • Additionally, data on how casework volume is split by referral category and timeliness.
• Accept ICO’s offer for an audit to “to reassure the public that the Government’s approach to Freedom of Information requests is compliant with the Freedom of Information Act and that they are handled with the utmost professionalism”. 
  • Publish an action plan in response to this. 

FOI Procedure

• Adopt procedures that guarantee the legal standard of applicant-blind processes for requests.
• Guidance on limited circumstances Minister and Special Advisors can get involved in responding to FOI.
• Establish timetable for completion of internal review. 

Lead and model good FOI practice

• Cabinet Office should “drive a cultural shift from mere baseline compliance with the [FOI Act] to to a greater advocacy for the core principles and tenets of the Act”
• Cabinet Office should model best practice, and intervene elsewhere in government that doesn’t meet this best practice. 
• Issue guidance on the need to maintain public record given private messaging systems.

Wider government

Set the right tone and meet a higher standard

• PACAC wants to see stronger tone on the benefits to good government from Freedom of Information, and greater demonstrable action on steps taken to improve outcomes for Freedom of Information applicants. 
• Review decision to exclude ARIA from Freedom of Information Act, but only to ensure this is not a precedent. The report criticises the way FOI was discussed at the time, but does not directly say the decision should be reversed. 
• Government as standard (with Cabinet Office driving change) should respond to internal review within the 20 days suggested by the ICO. 

FOI Governance

• Reconcile the split between FOI Policy responsibility (Cabinet Office) and sponsor department (Department for Culture Media and Sport) by either shifting policy from Cabinet Office to DCMS, or the funding responsibility from DCMS to Cabinet Office.