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.You may also like to see responses from the Campaign for Freedom of Information and the Open Government Network: as we three organisations’ submissions share several common themes (without our having consulted one another), we hope that there’s a good chance of the Government taking them into account.
On the 21st of February 2012 Alex Skene, representing mySociety’s Freedom of Information website WhatDoTheyKnow, appeared in front of the UK Parliament’s Justice Select Committee. The MPs on the committee were holding an evidence session as part of their post-legislative scrutiny of the Freedom of Information Act.
Video of the session can be viewed online via ParliamentLive.TV and the BBC’s Democracy Live. A transcript of the session will become available via TheyWorkForYou, typically these take a week or two to be produced.
Prior to the session WhatDoTheyKnow had submitted written evidence to the review making three main points:
- The scope of the act should be extended to cover a wider range of public bodies.
- Time limits should be introduced for public interest tests and internal reviews.
- There is a need for more proactive publication of information, and a culture of openness and transparency needs to continue to be nurtured and extended within the UK’s public sector
The committee appeared genuinely interested in finding out how FOI has performed to-date and how it can be improved.
Alex told the committee that FOI enables evidence based policy making and empowers citizens; he said the WhatDoTheyKnow.com website supercharges the provisions of the FOI Act making it easier for people to take advantage of the right to access information which it gives them.
Elfyn Llwyd MP raised the question of vexatious and frivolous requests through the medium of ghosts. Asked if requests about ghosts could ever be justified Alex told MPs that it was hard to draw the line between acceptable and unacceptable requests. He noted that one council had spent public money on an exorcism, so in that case there would be information held and an FOI request justified. He questioned if requests on ghosts were to be deemed unacceptable, what other areas might be excluded. UFOs? The MoD for a long period did have an office collating UFO reports, again there was public spending, and recorded information held, in this area. Homeopathy was also highlighted, that’s about as real as ghosts or UFOs, but again FOI requests about it must surely be permitted as significant amounts of taxpayers money are spent on it.
Maurice Frankel, the director of the Campaign for Freedom of Information, who was giving evidence alongside WhatDoTheyKnow took a stronger line. He described those who made FOI requests about ghosts as “idiots”; but also accepted it was hard, and undesirable, to try and outlaw requests on certain subjects. He added that such requests did not generally cost large amounts of money to deal with.
MPs on the committee appeared sympathetic to calls from the representatives of WhatDoTheyKnow and the Campaign for Freedom of Information to introduce stricter time limits. The need for time limits was brought into focus during the discussion of the time limits for prosecutions under S.77 of the Act (Offence of altering etc. records with intent to prevent disclosure), very few requests have gone through a response, and internal review, and the Information Commissioner within the time limit for launching a prosecution. An MP suggested making offences under S.77 triable in either a magistrates or a crown court so as to extend the time period while retaining consistency with the rest of the justice system.
When asked to comment on the idea of introducing fees for all FOI requests Alex said such proposals would be “devastating” and would deter many from making requests. Alex noted that the public had paid for the information in question already, via general taxation, and ought be able to access it.
When asked to comment on lobbying from universities to be exempted from FOI, Alex robustly defended their inclusion in the act, pointing to their role in controlling access to professions and awarding degrees. Maurice Frankel and Alex noted the universities’ argument that they were being funded by a decreasing fraction of public money wasn’t really relevant, as that is not the basis on which bodies are deemed to be covered by the Act.
Extending Coverage of FOI
The reach of FOI into commercial organisations carrying out work on behalf of public bodies was briefly discussed however notably there was little further discussion of extending the coverage of FOI, perhaps suggesting this may be a dedicated subject for future evidence session. This session was been described as the committee’s first, suggesting there will be more. At least one of these will presumably hear from the Information Commissioner.
The written evidence we submitted can be read on page 81 of the compendium of submitted evidence (PDF).
Current government policy in relation to the Internet can broadly be summarised as occupying three areas:
1. Getting people online (broadband access, and lessons for people who don’t have the skills or interest)
2. Protecting people from bad things done using the Internet (terrorism, child abuse, fraud, hacking, intellectual property infringement)
3. Building websites for departments and agencies.
The government does all these things primarily because it believes that the Internet boosts the economy of the UK, and that IT can reduce the cost of public services whilst increasing their quality. Together, these outweigh the dangers, meaning it doesn’t get banned. Gordon Brown’s recent speech at Google was an exemplar of this mainly economically driven celebration of the Internet’s virtues, telling audience members that your industry is driving the next stage of globalisation”.
The first challenge for the government is to understand that whilst these beliefs are true, they are only a minor part of the picture. Tellingly, Browns’ speech contained almost no language that couldn’t have been used to explain the positive impact of electrification or shipping containers.
The way in which the Internet Is not like Electrification or Shipping Containers
The Internet has been relentlessly undermining previous practices in the running of businesses, dating, parenting, spying, producing art and many other areas. So, however, did electrification and shipping containers. From cheaper raw materials, to cheaper cars to have sex in the back of, economic and social change has always been driven by technological change.
What is different is the way in which the Internet changes social and economic practices – the vector of attack. In the 20th century, advancement of human welfare went hand in hand with the rise of companies that used economies of scale to deliver better goods and services for customers. Technology effectively made it possible and much easier to be a big, highly productive company, to gather expertise and capital together and to target markets for maximum yields.
Now take a look for a moment at Wikipedia, MoneySavingExpert, Blogger or Match.com – all big websites, all doing different things. Each one, however, is in its own way is reducing the ability of large, previously well functioning institutions to function as easily.
These services are reducing traditional institutions ability to charge for information, seize big consumer surpluses, limit speech or fix marriages. It has, in other words, become harder to be a big business, newspaper, repressive institution or religion. Nor is this traditional ‘creative destruction’ going on in a normal capitalist economy: this isn’t about one widget manufacturer replacing another, this is about a newspaper business dying and being replaced by no one single thing, and certainly nothing recognisable as a newspaper business.
This common pattern of more powerful tools for citizens making life harder for traditional institutions is, for me, a cause for celebration. However, I am not celebrating as a libertarian (which I am not) I celebrate it because it marks a historic increase in the freedom of people and groups of people, and a step-change in their ability to determine the direction of their own lives.
How the government can be on the side of the citizen in the midst of the great Internet disruption
Disruption like this is scary for any institution, which will tend to mean that as a public entity which interfaces with other institutions the temptation will be to hold back the sea, not swim with it. Government must swim with the tide, though, not just to help citizens more but to avoid the often ruinous tension of a citizenry going one way and a government going another. There are various things government can do to be on the right side.
1. Accept that any state institution that says “we control all the information about X” is going to look increasingly strange and frustrating to a public that’s used to be able to do whatever they want with information about themselves, or about anything they care about (both private and public). This means accepting that federated identity systems are coming and will probably be more successful than even official ID card systems: ditto citizen-held medical records. It means saying “We understand that letting train companies control who can interface with their ticketing systems means that the UK has awful train ticket websites that don’t work as hard as they should to help citizens buy cheaper tickets more easily. And we will change that, now.”
2. Seize the opportunity to bring people together. Millions of people visit public sector websites every day, often trying to achieve similar or identical ends. It is time to start building systems to allow them to contact people in a similar situation, just as they’d be able to if queuing together in a job centre, but with far more reach and power. This does open the scary possibility that citizens might club together to protest about poor service or bad policies, but given recent news, if you were a minister would you rather know about what was wrong as soon as possible, or really late in the day (cf MPs‘ expenses, festering for years)?
3. Get a new cohort of civil servants who understand both the Internet and public policy, and end the era of signing huge technology contracts when the negotiators on the government’s side have no idea how they systems they are paying for actually work. Coming up with new uses of technology, or perceiving how the Internet might be involved with undermining something in the future is an essential part of a responsible policy expert’s skill-set these days, no matter what policy area they work in. It should be considered just as impossible for a new fast-stream applicant without a reasonably sophisticated view of how the Internet works to get a job as if they were illiterate ( a view more sophisticated than generated simply by using Facebook a lot, a view that is developed through tuition ). Unfashionably, this change almost certainly has to be driven from the center.
4. Resist calls from institutions of all sorts to change laws to give them back the advantages they previously had over citizens, and actively appoint a team to see where legislation is preventing possible Internet-enabled challenges to institutions that could do with shaking up. At the moment, this is mostly seen in the music and video fields, but doubtless it will occur in more fields in the next decade, many of them quite possibly less sexy but more economically and socially significant than a field containing so many celebrities.
5. Spend any money whatsoever on a centrally driven project to cherry pick the best opportunities to ‘be on the side of the citizen’ and drive them through recalcitrant and risk averse departments and agencies. Whilst UK government is spending £12-13bn a year on IT at the moment, almost none of that is being spent on projects which I would describe as fitting any of the objectives described above. And the good news, for a cash strapped era, is that almost anything meaningful that the government can do on the Internet will cost less than even the consulting fees for one large traditional IT project.
There are, obviously, more reasons why the Internet isn’t like electrification or shipping containers. But keeping the narrative simple is always valuable when proposing anything. The idea that a wave is coming that empowers citizens and threatens institutions makes government’s choice stark – who’s side do we take? History will not be kind to those that take the easy option.
Obviously it’s always great when any paper gives mySociety coverage – it helps get the word about our services out and helps more people get things done that help their lives.
However, today’s look at mySociety’s 5 years in the Guardian makes a few claims I think it’s important to challenge, so instead of writing to the readers editor I thought I’d just seize the power of Citizen Media(TM) to note them here.
First, has the No10 petitions site had “little notable impact” on government policy? Given that that project appears almost single handedly to have bounced Parliament into developing an online petitioning system and devoting debate time to major petitions, I’d say that it certainly has had some impact. But there is indeed a bigger problem of pointing at No10 petitions and going “That one changed policy.” It’s a problem of two halves: scale, and deniability. Governments almost never acknowledge that they were forced into anything, ever. Policy announcements are almost always framed as if the right course of action was being followed all along. So apart from the fact that I don’t know how one could possibly assess the impacts of so many thousands of petitions without a huge research project, I would expect that even those that do have in impact will still usually be denied by the government, even when shifting policy. I would encourage No10 and the whole of Government to take a look at directly challenging this culture, and employ someone whose job it is to find out which petitions are having an impact, and shout about them in plain English.
Second, the majority of mySociety’s sites are programmed by staff and contractors, not volunteers. The volunteers are super-essential to mySociety running every day, but the sheer size of some of our projects makes it unlikely a volunteer could have built them without giving up their day job for many months. This needs mentioning to explain why it matters if our finances are precarious!
Next – do councils find FixMyStreet an irritation or an asset? Well, last time we did a count a few weeks ago, we had 4 complaining emails from councils, and 62 supportive ones, with several linking directly to us. As for the Customer Relationship Management at councils, we’d be delighted to send reports straight into their databases without going via email first, it’s just that only one council has set up such an interface so far. I hope that FixMyStreet can put pressure on councils and their suppliers to build a small number of standardised interfaces for the good of everyone. And yes, we are building FixMyStreet for iPhone and Android, and I’m happy to talk to anyone who wants to build UIs for any other phones.
There – hope that doesn’t come across as too ungrateful to Michael Cross et al. See you at the next birthday party, I hope!
Update: I also meant to mention that I’ve never been a ‘Downing Street Insider’. I was a junior civil servant in the Prime Minister’s Strategy Unit, which is not in Downing Street and more loosely affiliated than the name might suggest.