Free Word Centre, 60 Farringdon Road, London EC1R 3GA Tel: 020 7324 2522 www.indexoncensorship.

org

Sir Alan Beith MP Chair of the House of Commons Justice Select Committee House of Commons London, SW1A 0AA 3 February 2012

Dear Sir Alan, Re: Post-Legislative Scrutiny of the Freedom of Information Act At Index on Censorship we strongly support the principle of an open society, and believe that access to information is part of the Article 10 right to freedom of expression. There is no doubt that the Freedom of Information Act 2000 has been hugely positive in opening up government and public authorities in the United Kingdom to scrutiny by its citizens and helped curb a culture of secrecy. It is believed that there were in total nearly a million information requests made to public bodies from 20052010; but this has to be placed in the context of the 100,000 public authorities that the FOI Act covers. Freedom of information helps promote efficient government. The total cost of FOI requests is estimated at around 40 million per annum,1 about the same as central government departments alone spend on external PR consultants.2 The Daily Telegraph identified 25 million worth of questionable spending by civil servants on credit cards with just a few FOI requests,3 and spending on freedom of information pales into insignificance in comparison to total government spending this financial year of 710 billion. In this submission, we identify a number of areas where we disagree with the Ministry of Justices Memorandum to your committee on Post-legislative assessment of the Freedom of Information Act 2000. Our headings link with the numbered bullet points in the Memorandum in brackets. We hope your committee will support the principle that open access to information is a fundamental right, and also helps steer government in a more equitable and efficient direction.

Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Freedom of Information Act 2000, Ministry of Justice, http://www.justice.gov.uk/downloads/publications/policy/moj/post-legislative-assessment-ofthe-foi-act.pdf, p. 53. 2 http://www.prweek.com/uk/news/1005967/government-comms-budget-halved-40-million-amid-public-spendingcuts/ 3 http://www.telegraph.co.uk/news/politics/8555445/Civil-servants-spend-25m-on-credit-cards-including-luxuryhotels-fine-dining-and-golf-trips.html
Chief Executive: John Kampfner Editor: Jo Glanville Trustees & Directors: Jonathan Dimbleby (Chair), Anthony Barling, Rohan Jayasekera, John Kampfner, Katie King, David McCune, Lord Ken McDonald QC, David Membrey, Matthew Parris. Index on Censorship works to pursue the charitable objectives of its founding charity, the Writers & Scholars Educational Trust. It is a UK registered charity no. 325003 VAT registration no 241 0075 16

MPs privilege in regards to constituents correspondence (88) 1. Correspondence with a Member of Parliament could, in specific instances, be granted the same protection afforded to journalists sources under the Common Law and under Article 10 of the Human Rights Act (see FT vs. United Kingdom) based on a public interest test. 2. However, a full exemption for MPs correspondence could have a negative impact on freedom of expression and access to information. To give one example, an MP could prevent publication of leaked correspondence that relayed attempts by lobbyists to alter legislation. Vexatious requests (96) 3. Public authorities have expressed concern that section 14(1) on vexatious requests is hard to use. Index on Censorship supports the principle that the section should only be used as a last resort against those filing multiple FOI requests where no public interest can be demonstrated. As it stands we believe that section 14(1) is an adequate provision, as proven in practice (with the ICO tribunal upholding 14 of 19 decisions),4 and that any attempt to make it easier to rule out FOI requests could be misused by public authorities. 4. According to University College Londons Constitution Unit, of 693,650 requests made to local government only 1.6% (11,336) were subject to internal review by the requesters, 5 suggesting that the vast majority of requests are viewed as satisfactory by those requesting the data, and that very few people indeed tie up local authorities with vexatious internal reviews. Exemptions to the FOI Act (102) 5. Index on Censorship is critical of the recent addition relating to members of the Royal Family within schedule 7, section 46 of the FOI Act. In a joint statement alongside Republic, Right to Know, Professor Roy Greenslade, the Reform Foundation and Professor John Millar we argued: This is not simply about the royal household's use of public funds - it is a serious issue of accountability and transparency that goes to the heart of government. It is well documented, and admitted by Clarence House, that the Prince of Wales routinely lobbies government ministers on a wide range of controversial and deeply political matters such as the environment, education and health. The current lack of scrutiny over such actions means that citizens have no means by which to judge if ministers are taking decisions according to the public interest or to suit the interests and agenda of the heir to the throne. [The] government has previously justified royal secrecy by asserting the importance of maintaining the appearance of impartiality on the part of the monarch and heir to the throne. But the monarch and heir are required to be impartial in fact and not just in appearance. 6
4

Memorandum to the Justice Select Committee: Post-Legislative Assessment of the Freedom of Information Act 2000, Ministry of Justice, http://www.justice.gov.uk/downloads/publications/policy/moj/post-legislative-assessment-ofthe-foi-act.pdf 5 http://www.ucl.ac.uk/constitution-unit/research/foi/foi-and-localgovernment/FOI_Surveys_6_year_Summary_FINAL_Nov2011_edit.pdf. 6 http://www.indexoncensorship.org/2011/03/royalty-free-freedom-of-information/

We believe that neither the last government who initiated the change, nor the current government who implemented the change, has justified allowing the Heir to the Throne a level of official state secrecy that Ministers of the Crown do not enjoy. This presents us with a constitutional anomaly. 6. The Committee may also wish to consider whether there is too broad a range of exemptions which reduces clarity. Whilst 23 sections of the UK FOI Act can be invoked as exemptions (some absolute, some contingent on a public interest test), the US Freedom of Information Act has streamlined this into nine clear categories: 1) properly classified information; 2) agency management records; 3) information barred from disclosure by another law; 4) trade secrets or other confidential business information; 5) inter- and intra- agency information protected by legal privileges; 6) information that, if disclosed, would invade another individuals privacy ; 7) information compiled for law enforcement; 8) federal government records of banks and other regulated financial institutions; and 9) information about the location of oil and gas wells of private companies.7 Information Commissioner's Office caseloads (153) 7. We note that the predicted peak in ICO caseloads has not materialised, and that after initial teething problems the case closure rate in 2010/11 reached 99%. Often news is timesensitive, so dealing with FOI requests and disputes in an effective manner is important. 8. Index believes that the Committee should investigate whether the ICO should be given additional powers including the power to levy significant fines to deal with public bodies who are consistently slow in responding to FOI requests, or who use a disproportionate number of exemptions. The ICO can already fine up to 500,000 for breaches of the Data Protection Act, but at present can only use the threat of criminal sanctions (with an unduly high threshold) against authorities breaching FOI guidelines. Science researcher Les Rose told Index that public bodies will allow cases to be referred to the ICO tribunal if they wish to delay publication of embarrassing information as there is no disincentive to do so. Fines for constituent breaches of the 20-day guideline would act as a powerful disincentive. Cabinet papers 9. We agree with the analysis in the Memorandum based on the UCL Constitution Unit interviews with civil servants in 2009, that there is no evidence of a chilling effect on central government and that claims that FOIA would undermine civil service neutrality or ministerial accountability have proved unfounded.8

7 8

Information provided by Amy Bennett from OpenTheGovernment.org Memorandum, p.87.

Local authorities (172) 10. In the Memorandum, it is stated: At a time when all public authorities are required to do more with less, this consideration of the financial impact of FOIA on public authorities is pertinent. Local authorities receive the majority of FOI requests, which is perhaps indicative of the greater contact citizens have with their council in contrast with central government departments. The Local Government Association is lobbying to reduce the cost of FOI requests, which Index believes will have a chilling effect on access to information and public discussion about the activities of local government. Whilst the number of FOI requests to local authorities has risen, UCL research suggests that the cost of processing FOI enquires has fallen by over half from 410 per request in 2005 to just 160 per request in 2010. 9 The Local Government Association in a press release at the end of 2011, 10 Councils quizzed on Santa, Napoleon and Aliens in 2011's most wacky FOI's stated that FOI requests were costing the taxpayer 31.7 million per year. Whilst this is a significant amount, in contrast Councils paid out 427 million in mileage allowances for councillors and staff in 2009 / 2010, and this represents a statistically insignificant amount compared to the total local government budget of 118.1 billion for the financial year 2011 / 2012.11 Research from UCL12 shows that only 5% of FOI requests to Councils are from commercial businesses, whilst 52% are from individual citizens, 5% from journalists and 5% from political parties - all important stakeholders for whom access to information is an essential right. We strongly disagree with any attempt to lower the cost limit of 600 per request for central government departments and 450 for all other public authorities as set by the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004. Cast study local authorities and defamation actions The Derbyshire principle prevents public bodies from pursuing a defamation action in the High Court, with the rationale that the state should not sue its citizens for speaking out. Index on Censorship found evidence last year that public authorities were continuing to use public funds to pursue defamation actions against UK citizens. Using the FOI Act, we were able to obtain evidence that South Tyneside Council has spent $64,370 of taxpayers money pursuing one of its councillors, Ahmed Khan, in the Californian courts in a defamation action.13

UCL, ibid. http://www.local.gov.uk/web/guest/media-releases/-/journal_content/56/10161/3260888/NEWS-TEMPLATE 11 http://www.communities.gov.uk/documents/statistics/pdf/1933771.pdf 12 http://www.ucl.ac.uk/constitution-unit/research/foi/foi-and-local-government/2010-foi-officers-survey.pdf 13 http://www.indexoncensorship.org/2011/09/local-authorities-use-libel-laws-to-silence-criticism/

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Fees for FOI requests 11. We strongly disagree with the proposal in the report by Frontier Economics commissioned by the Department for Constitutional Affairs (2006) for a targeted fee for commercial, media or repeat requesters. In Index on Censorship magazine journalist David Leigh outlines the background to the commissioning of this report. 14 Former Lord Chancellor Charles Falconer circulated a private paper to cabinet colleagues in July 2006 which would have restricted serial requesters (NGOs, civil society groups and the media) to just four FOI requests a year per department. Frontier Economics, a small consultancy with former cabinet secretary Andrew Turnball on the board, was commissioned at short notice at a cost of 75,000 to develop Falconers position. As Leigh points outs: [Frontier Economics] produced a sheaf of dubious statistics The small print revealed that time of ministers had been costs at 300 an hour. The time taken in consultations had been arrived at by taking the numbers of hours logged by officials and then blithely doubling the figures. The figures for newspaper use were extrapolated from a single week. Nowhere was it pointed out that the initial years of the Act would be far more expensive than subsequently, because every issue was a precedent. Nor was it explained that the government spends far more - 300 million a year on hundreds of press officers. The rationale for targeted fees, or limiting requests per organisation, in the name of cost reduction, is not justifiable. Such proposals would serious affect important scrutiny groups such as the Taxpayers Alliance whose research into government spending often involves multiple FOI requests. As John OConnell, the Research Director of the Taxpayers Alliance, told Index: The Freedom of Information Act was one of the most important pieces of legislation enacted by the last Government. For too long taxpayers did not have the tools necessary to hold politicians properly accountable but FOI helped shift the power back to those who pay, and away from those who spend. Its crucial that this principle is preserved and that means not allowing the Act to be watered down. If anything it should apply to more bodies that receive taxpayers money, as Nick Clegg proposed last year. It would be wrong to impose limits or caps on how much information taxpayers can request, and if public bodies wish to cut down on the work they do responding to FOI requests then they should simply publish more information proactively. Any changes that weaken FOI law would be a huge step backwards for transparency and a slap in the face for the taxpayers who spent so long in the dark, unaware of how politicians spent their hard-earned cash.15 It would also affect the medias ability to hold government to account through open access to information, which, in turn, would have an adverse effect on Article 10 rights to freedom of expression. The Guardians security correspondence Richard Norton-Taylor told Index: Limiting the number of FOI requests per organisation is neither fair nor logical. There are more than enough hurdles as it is in the way of disclosure, as well as measures to prevent vexatious demands.

14 15

David Leigh, Public Nuisance, Index on Censorship, 36: 2 (2007) Email to Mike Harris, Head of Advocacy, Index on Censorship, 3 February 2012.

We know that government is imbued with unnecessary secrecy. It spends a great deal of resources in time as well as well as money - suppressing information which should be out in the public domain. Openness is cheap, transparency saves money all round. 16 12. The Frontier Economics report contends that 5% of FOI requests in central government are responsible for 45% of the total cost of FOI. Index asks the committee to consider the nature of FOI requests and that complex data may in fact be of the most use. Without further analysis beyond this striking fact, it is impossible to know whether it was those 5% of FOI requests that truly touched upon significant matters of public interest, and hence are the requests it is most crucial to protect. Science and FOI Case study public bodies and alternative medicine Professor David Colquhoun is an outspoken critic of alternative medicine, arguing that universities ought to be cautious not to teach its supposed benefits as being scientifically proven. Using the FOI Act, Colquhoun requested course materials from universities teaching homoeopathy and acupuncture to see the claims made for these alternative therapies. It took three years for him to obtain details of the University of Central Lancashires BSc course in homeopathy through an FOI request, which he won at the ICO tribunal in December 2009.17 Les Rose, a science researcher, told Index18 that the FOI Act is one of the most important pieces of legislation for scientists and key to the translation of scientific knowledge into public policy and highlighting abuses of science to justify certain government policies. Rose has used FOI requests to obtain the volume of referrals from NHS primary trusts to providers of homeopathy. He believes without the FOI Act, primary care trusts would have cited resource concerns over providing the data, and it simply would not be publicly available. 13. Some publicly funded university science laboratories have aired objections to current FOI legislation. The most notable recent case was that of the University of East Anglias Climate Research Unit, which for several years resisted the requests for data from amateur climatologist Steven McIntyre. The CRU claimed at various points that the requested data was commercially sensitive, or could damage international relations, and acceded to less than 10% of requests. The perceived secrecy and subsequent hacking of the Units system severely dented the credibility of the organisation and set back climate research in the public eye. Environmental journalist George Monbiot commented: [T]hose of us who seek to explain [climate changes] implications and call for action must demand the highest possible standards from the people whose work we promote, and condemn any failures to

16 17

Ibid, 2 February 2012. http://www.informationtribunal.gov.uk/DBFiles/Decision/i357/UCLAN_v_IC_&_Colquhoun_(EA-20090034)_Decision_08-12-09_(w).pdf 18 Conversation with Mike Harris, ibid, 3 February 2012.

release data or admit and rectify mistakes. 19 In a ruling against the CRU, Information Commissioner Christopher Graham ruled that the university had not demonstrated a good reason to withhold its data. As author Fred Pearce has pointed in Index on Censorship magazine: Much of science has closed ranks behind the idea that those demanding access to their data are troublemakers. Nobel laureate and Royal Society president Sir Paul Nurse says some researchers are getting lots of requests for, among other things, all drafts of scientific papers prior to their publication in journals, with annotations, explaining why changes were made between successive versions. If it is true, it will consume a huge amount of time. And its intimidating. Maybe, but the current law allows vexatious requests to be rejected. So that is a straw man. 20 14. It is in the interest of scientists, particularly those who are publicly funded, that the broader population has a greater understanding and enthusiasm for their subjects. Better access for lay people to open data and resources surely aids this aim, and will make science less daunting for young people considering careers in this ever more important field. Broader context It took decades to establish the right to information through the Act, with campaigning by many. Since its implementation, FOI has been used to expose rampant expenditure on luxury hotels by civil servants, the misuse of public money on vexatious legal cases by public bodies against member of the public, and helped bring about the revelations in the MPs expenses scandal. It is also important that your committee views arguments around access to information in its broader international context. The publication of US State Department cables by WikiLeaks has demonstrated how the urge to over-classify documents is present even in established democracies. We are also concerned over the UK governments Green Paper on Justice and Security currently being scrutinised by the Joint Select Committee on Human Rights which has created a highly broad term for sensitive material. This could be used as a precedent in other areas such as the Freedom of Information Act. Index on Censorship hopes the Justice Select Committee recognises the importance of the Freedom of Information Act in opening up access to information for British citizens. Any reduction in the scope of the Act; to limit the cost of the act, or cap the number of requests organisations can make will have an impact on Article 10 rights to freedom of expression. If you would like oral evidence to the committee we would be very pleased to oblige. Yours sincerely,

Mike Harris Head of Advocacy, Index on Censorship

19 20

http://www.guardian.co.uk/environment/georgemonbiot/2010/feb/02/climate-change-hacked-emails http://www.indexoncensorship.org/2011/11/climate-change-secrecy-freedom-information/