Submitting evidence to Parliamentary inquiries is one of the ways in which we can have an effect on the way things work in this country.

As you may recall, we recently contributed to the Scottish Parliament’s Standards, Procedures and Public Appointments Committee on Freedom of Information reform, and now we’ve submitted written evidence to the UK Procedure Committee’s inquiry on Written Questions.

This time, we’re making the case for more alignment between FOI requests and Parliament’s Written Questions system. Written Questions are a mechanism by which MPs and Lords can hold Ministers to account, in much the same way that the public can request information from government authorities through FOI.

We have recommended that a rejected parliamentary question should be retrospectively converted to an FOI request to allow making an appeal; and that given the influence of FOI in Parliament (both by parliamentarians, and in how they use FOI requests made by others), government statistics on FOI effectiveness should be scrutinised alongside Written Question statistics.

Finally, reflecting one of the findings in our WhoFundsThem work, we think that when a Member submits a Written Question and declares an interest, they should be required to say what that interest is.

For much more detail on each of these points, you can see our submission on the Parliament website.

The House of Commons Public Administration and Constitutional Affairs Committee is currently conducting an inquiry into the Cabinet Office’s Clearing House function. We have submitted written evidence to the Committee building on our recent report “Reforming Freedom of Information: Improvements to strengthen access to information in the UK”. We outline how tactics used by the Cabinet Office fit into a wider pattern of evasion, and how Scottish FOI legislation provides a model for how these issues can be addressed. 

Our full submission can be read online, or downloaded as a PDF. Written evidence from other organisations and individuals can be found on the Parliament website.  A summary of our evidence and recommendations is below. 

Recommendations

• The Clearing House, and/or any other FOI coordinating body, should be compelled to operate in a fully transparent manner, publishing its procedures, decisions and appeals data.
• The Freedom of Information Act (FOIA) should be revised to improve clarity of process and to close procedural loopholes that currently frustrate disclosure and effective regulation.
• FOIA should be revised to include a legal obligation upon public authorities and the regulator to collect and publish data on the administration of the Act. 
• The regulation of the FOIA should be split from the current Information Commissioner’s Office, where its budget and importance is dwarfed by data protection work, and constituted as an individual entity focused solely on FOI. 
• The oversight of the FOI regulator should be migrated from its current Ministerial portfolio, where it is vulnerable to political pressure and influence, and should instead become accountable to Parliament. 

Contents

Q1: The Cabinet Office’s compliance with and implementation of the Freedom of Information Act 2000

• Central Government statistics
• ICO decision notices
• Procedural complaints
• Relevance to Clearing House

Q2: Role and operation of Clearing House

• History and available information about the Clearing House
• Addressing the core problem
• Directly addressing delay and obstruction tactics

Summary

• In official statistics, the Cabinet Office stands out as having a lower than average percentage of requests for information fully granted, and a higher percentage of requests that were not returned within the 20 day statutory limit. 
• The Cabinet Office has received a high number of decision notices from the ICO, with over 50% of complaints upheld or partially upheld in all but four years (2014-2017). 
• The highest number of complaints are upheld in procedural areas, which, taken in combination with wider patterns and specific decisions, are reflective of tactics used to delay or obstruct the release of information. For instance, administrative silence/stonewalling can be a highly effective tactic to delay the long term release of information. 
• While a coordinating function can be legitimate, that the Clearing House is based in the Cabinet Office is a cause for concern. There is a key question of whether the Clearing House reduces the volume or quality of information disclosures through permissible or impermissible means.
• Evidence from the information tribunal concerning the release of information related to the Clearing House should be seen as informative as to the general attitude towards transparency: by default withholding everything, and using every tool to delay scrutiny of this decision. 
• FOI requests should be ‘applicant’ and ‘purpose’ blind. The storage of unnecessary information about the applicant in the Clearing House system is an information hazard that raises reasonable suspicions that requests are not being treated as legally required.
• However, fixing the underlying problem requires more than changes in which information is gathered and stored. Impermissible methods (such as higher scrutiny for journalists) can be reframed as higher scrutiny for particular kinds of requests (that are likely to be requested by journalists). The root problem requires more effective ways of ensuring the correct information is made available promptly. 
• In general, concerns about coordinating bodies undermining the functioning of the Act should be directed at closing loopholes they (and any public authority) can use to delay or obstruct the release of information. 
• We recommend mirroring the approach used in Scottish Freedom of Information legislation to provide stronger clarity around time scales and administrative silence that can prevent delaying tactics. 
• More generally, the system of regulation could be improved by moving supervision and funding of the Information Commissioner’s FOI functions from government ministerial oversight (where there is clear capacity to limit resources for FOI enforcement) to Parliament. 

Our full submission can be read online, or downloaded as a PDF.

Header image: Photo by Maarten van den Heuvel on Unsplash

Open Democracy’s recent Art of Darkness report highlighted the worsening state of Freedom of Information request-handling in central government, with concerns over a gravely dwindling response rate, stonewalled responses and a disregard for the ‘applicant blind’ principle.

In combination, these deficiencies have served to erode government transparency at a time when scrutiny is vital. That’s we’ve signed Open Democracy’s open letter calling for an urgent investigation.

In The Art of Darkness, report write Lucas Amin states, “Central government granted fewer and rejected more FOI requests in 2019 than ever before, according to official statistics collected by the Cabinet Office. The percentage of requests granted in full has declined every year since 2010 – from a high of 62% in 2010 to 44% in 2019. The percentage of requests withheld in full has steadily increased from 21% in 2010 to 35% in 2019.”

The report also notes the the government’s increased use of a central ‘clearing house’ through which sensitive requests must be passed. Open Democracy have uncovered evidence that, contrary to the FOI Act’s principle of ‘applicant blindness’ (ie, information is accessible to all, with no consideration of who is making the request), this clearing house, which has been functioning since 2007, is in the practice of identifying which requests are made by journalists and exercising increased caution in their handling.

With this report also picking up many fundamental procedural errors in the way in which requests are being handled, it seems particularly timely that at mySociety we’re working on a tool to help request-makers to understand the reasons for refused requests and guide them in seeking an internal review as part of wider updates within our own WhatDoTheyKnow service.

But perhaps more importantly: as an organisation that campaigns for transparency from our authorities, and works closely with journalists, we recognise the danger of such practices going unquestioned.

That’s why we’ve added our voice to those of the many editors, journalists, campaigners and citizens who call for an inquiry. You can do the same here.

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Image: Gianluca D’Intino

So proxy voting has been in the news again. For whatever reason, MP Brandon Lewis failed to honour an agreed pairing for Jo Swinson while she was on maternity leave. Those arguing in favour of a more formal system might say that this story — and the ensuing confusion — underlines the point perfectly.

You may remember that we submitted evidence to the Commons Procedure Committee inquiry on just this matter. Back in May, they published their report and recommendations for Parliament (you can see the summary here if you’re in a hurry).

While we broadly support measures that will formalise the currently informal system, our main interest is in digital data being available so that our own site TheyWorkForYou, as well as parliamentary sites run by other people, can disseminate the information clearly, aiding transparency and accessibility.

We were glad to see that this point has been acknowledged. Paragraph 59 of the report states:

Where a proxy vote is cast, it must to be recorded in a transparent way. When listing the result of divisions, both online and in its printed edition, the Official Report (Hansard) must note votes which were cast by proxy, by marking a symbol adjacent to the name of the absent Member and identifying the Member who cast the proxy vote. It should be the aim that this record should be treated as an integral part of the digital record of Commons divisions and should be shared as open data in a format compatible with Parliament’s Open Data output, both as part of the dataset for each division and as a standalone output.

So what next?

The recommendations were to have been debated in the House of Commons at the beginning of this month, but a lack of time prevented that from happening.

As it’s now the summer recess, the report will come back to the table in September. Presumably the recent display of how informal pairing can fail will stand as a rather good argument for these more official arrangements.

As for the mechanics of the matter, the implementation of proxy voting will require a number of changes to be made to Standing Orders (the rules by which each House’s proceedings are run), which the committee has suggested should be put to the House for decision at the same time as the report is debated.

If these are agreed to, they’ve recommended that the scheme should brought into force with immediate effect; there would then be a reassessment after they’ve run for twelve months to see if any further changes are required.

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Image: Andrew Seaman

We’ve submitted evidence to the recent inquiry on whether Parliament should introduce a more formal system of voting by proxy. You can read our submission here, and see submissions from other organisations and individuals on Parliament’s website.

Voting by proxy is the practice of allowing someone else to cast your vote for you. In Parliament, when MPs go on extended leave, for example when they have a baby, there is no formal system in place; rather, arrangements are often made informally and, potentially, inconsistently.

A Member may approach a whip to request that they are paired with an MP from the opposition who will not be voting either, thus effectively cancelling out the votes that would have been cast. Apparently, there is also an informal tradition of allowing infirm or incapacitated (for example, because they are carrying a baby in their arms) representatives to vote from outside the chamber, but only when present within the precincts of the House. We were interested to see a remark in David Lammy MP’s own evidence:

I would also hope that the Committee might consider some way to end the practice notorious from the late 1970s of bringing seriously sick Members into Westminster in order to vote. This would carry severe reputational risk if repeated nowadays.

Why are we interested?

The inquiry is a direct result of the recent debate, on International Women’s Day, in which Harriet Harman led the call for a more formal system of voting by proxy for members on extended leave (and particularly on ‘baby leave’).

We agree that it’s important Parliament formalises this system, and we fully support any measure that will make life easier for parents, or those on extended leave for other life-changing reasons. And of course, we’re very much in favour of any initiative which will make parliamentary arrangements more transparent and accessible to the general public, which after all is the whole reason TheyWorkForYou exists.

But we also have a further interest in this subject. As you may recall, we were called out by MPs (and subsequently members of the public) for misrepresenting representatives on leave, since our site TheyWorkForYou was not displaying this information, leaving potential for members of the public to believe that such MPs were not attending to their duties.

In response to this, we are now able to manually add notes to the profile pages of those MPs who request it. However, as we outlined in our prior posts it’s not an ideal solution for a number of reasons, as summarised in our inquiry response.

We’re hoping that once the proxy voting system is formalised, the relevant information (that is, who is on extended leave, that a proxy is voting in their place, and the name of the proxy) will be released along with Parliament’s existing data outputs. You can read more about that in our response, but in short, this would allow us to display the information consistently and automatically, as we do for virtually all the rest of the information on TheyWorkForYou.

But it won’t only be useful for us. It’ll allow for the data to be displayed on Parliament’s own website, and of course will be of help to any website or tool which deals with Parliamentary activity and makes it easier for everyone to understand.

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Image by Jessica Taylor (Parliamentary copyright, reproduced with the permission of Parliament). “Ayes to the right, noes to the left”. When there is a vote in the Commons, MPs leave their seats and walk into either the Aye or No lobby.

The Freedom of Information Code of Practice is a set of guidelines for the public authorities that are liable to respond to requests for information under the FOI Act. It advises these bodies on how to adhere to the law and what counts as best practice.

The Cabinet Office recently ran a consultation on proposed revisions to the Code of Practice. Since this Code directly relates to the activities of the website WhatDoTheyKnow, and the services it provides for our users, we put in a response, which you can view here.

The response was submitted under the joint names of WhatDoTheyKnow, our FOI codebase project Alaveteli, and mySociety itself, having been worked on by the WhatDoTheyKnow volunteer team, those working on the Alaveteli project, and mySociety’s researchers. Between them there is a substantial amount of experience and knowledge on FOI in the UK: much of our response is based on our experience in helping users to obtain information from public bodies.

Indeed, our response commented on points which we felt particularly affect our users; among other issues, we responded on:

• Timeliness of responses, including the introduction of time limits for internal review and public interest test extensions, and the importance of prompt responses to requests which inform current public debate.
• The use of pseudonyms by those making requests: what counts as a pseudonym; whether this should be one of the indications that can be used to label a request as vexatious, and whether authorities might, at their own discretion, process a request even if pseudonymous.
• Proactive publication, including the point that routine publishing of data may be more efficient and cheaper than responding to individual repeated requests. One suggestion is that every Freedom of Information request should prompt a consideration by the public body of whether the kind of information requested could practically be routinely published.
• The application of fees to a request: the desirability of pointing out that most FOI requests do not incur a charge and that the requester will never be charged without notice. People can be deterred by the prospect of fees, and bodies’ responses often contain worrying notices about them in their emails and on Freedom of Information web-pages, when in reality they are rarely applied.
• The means of communication: that requests made by email, unless the requester specifies otherwise, should be taken as a preference for a response by email; the ease of making FOI requests; and the ease of using data in the format provided in any response.

We replied on several other points too, including the status of the Code of Practice itself. It was issued in 2004, and has not been updated since, and in fact it’s not a document that we use regularly when we’re advising users or corresponding with public bodies about the application of Freedom of Information law.

The high quality guidance which we, and our users, do use on a day-to-day basis comes from the Information Commissioner, so we suggested the Government consider whether, and if so how, the Code of Practice could incorporate, or endorse that documentation.

One other important point is that the Code of Practice constitutes guidance rather than law, so any welcome shifts in policy that it endorses should ideally be reflected in the law too.

As a case in point, while the Freedom of Information Act has always covered information “held on behalf” of a public body, the proposed Code of Practice sought to make information held by contractors working for public bodies more accessible in practice: we welcome this but we do caution that issuing a new Code of Practice is not a substitute for amending the law, if that’s what’s required.

If you are interested, do read our submitted document in full.

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Image: Nick Youngson (CC by-sa/3.0)

In June this year, a Lords Select Committee on Citizenship and Civic Engagement was appointed. Submissions of written evidence were invited, and of course, this being very much our area, we felt the need to contribute.

Our written evidence is a fairly quick read. Nonetheless we hope that it gets the essential points across, drawing on our experience in what works and what doesn’t in technology for civic engagement.

You can view all the submissions the inquiry received on the Parliament website. The committee will report their findings by the end of March next year.

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Image: Daniel Funes Fuentes (Unsplash)

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