FOI relationship feeling the seven-year itch

Councils have been asked about their readiness for attack by zombies

Freedom of information has been in force in the UK for seven years now, and some people are itching to get the law changed.

Next year could mark an important phase in the history of the right for the public to have access to state information.

This is because MPs on the House of Commons Justice Committee are holding an enquiry into how the FOI Act has been working in practice. The committee has recently called for evidence from all those with a view on the strengths and weaknesses of the law in operation.

The Justice Committee has already received a memorandum from the Ministry of Justice, which sets out some of the terrain that may be contested. I've now read this report in more detail than when writing an initial reaction on the afternoon it came out, and it's an important pointer towards the concerns of public authorities.

Frustrated

The chief one of these is clearly cost. Many authorities feel that the current cost threshold for rejecting requests as too expensive is too high, and/or that they should be allowed to take a wider range of activities into account in determining their costs (for example, redacting documents, which is currently excluded from the cost calculation).

Of course frustrated requesters sometimes complain that the cost threshold is too low. We can expect the trade-off between costs and benefits of FOI to be one of the main themes in the forthcoming scrutiny of the Act.

The MoJ will be publishing new research into the cost of FOI compliance next year. It has commissioned a study of 48 authorities to measure the amount of staff time it consumes.

This is clearly much easier to quantify than the benefits, whether in the form of public spending saved or the even more intangible factors of transparency and public understanding.

Zombie attack

Some authorities also complain that the procedure for declaring a request "vexatious" is too difficult, so that it is often less time-consuming to answer what they regard as pointless or obsessive questions (possibly for example about their readiness for attack by zombies) than it would be to reject them on this basis.

But it is striking that few more fundamental concerns are reported by the ministry. The basic structure of how FOI works - a general right to know, subject to exemptions and in many cases a public interest test - therefore seems to be widely accepted by public authorities.

The report says most FOI practitioners had few issues about the operation of most exemptions, suggesting "they are felt to be adequate in scope", according to the MoJ. My initial blog about the report discussed the mixed views on policy formulation and the "chilling effect".

It is also interesting to note how the practical operations of FOI would have been regarded very differently if the same assessment had been conducted three to five years after the Act was introduced, which is the period within which new Acts are supposed to face post-legislative scrutiny.

Overwhelming

Any account at that time would surely have focused on delay, delay, delay as the key problem with the system, due to the immense backlog of cases then overwhelming the Information Commissioner's Office.

Yet that problem has been much reduced since the currrent commissioner Chris Graham took up his post, with the beneficial consequence of encouraging public authorities too to make their FOI processing faster and more efficient.

The MoJ report is based on the views of public authorities and acknowledges that it is harder to survey the experiences of requesters of information. But it does note that "concern still exists" about the time authorities can take to assess the public interest on whether material should be disclosed or to consider an internal review of an initial decision.

As we look forward to next year, it's also worth stating that significant results could flow not just from the policy work of MPs and government, but also from some important individual cases that are awaiting legal decision.

These include a forthcoming Supreme Court ruling that should finally determine the extent to which the BBC's activities are covered by FOI requests, a tribunal case on whether private water companies can be forced to disclose material in line with the Environmental Information Regulations, and another tribunal case on whether the Information Commissioner was right to rule that the government should release its register of risks on its NHS reform plans which are currently going through Parliament.