FOI 81

Written evidence from WhatDoTheyKnow.com

Executive summary
1. WhatDoTheyKnow.com is a public web-based service that has helped people make over 100,000 Freedom of Information (FOI) requests to over 5,000 public authorities since 2008. We estimate that over 10% of all FOI requests nationally are made and published via the site. 2. As operators of the site, we believe that we have a unique and valuable vantage point from which to comment on how the Freedom of Information Act has been working in practice and provide practical recommendations for improvements. 3. We believe that the Act has been very effective at releasing previously unpublished public information, at promoting transparency at all levels of the public sector, and at embedding itself in the public culture. 4. Not all authorities apply the Act consistently, meaning that it is not as effective as it should be - many dont pro-actively publish information, raw data or disclosure logs. 5. The lack of hard time limits for consideration of the Public Interest Test or for Internal Reviews allows authorities to delay replies or appeals for many months 6. Whilst the scope of the Act has been extended to cover a small number of additional authorities, which is welcomed, we believe there are many more bodies carrying out public functions that should be subject to FOI laws, especially as more public services are contracted out to the private sector. 7. Our principal recommendations are: a. Fixed time limits for conducting public interest tests and internal reviews b. More bodies should be covered by the Act, and the process for doing so should be made simpler and quicker. c. Public authorities finding the cost of complying with FOI relatively high should take more steps to reduce the cost, though automation and proactive publication.

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WhatDoTheyKnow.com: A view of FOI from a high vantage point
8. WhatDoTheyKnow.com is a website which allows people to make requests for information in public and ensures the request, all email correspondence and responses are automatically published on the Internet. 10. From the requesters point of view, our service: a. Makes it easy for them to find public authorities, and provides a simple interface for them to make their requests for information. b. Has already done the hard work in searching obscure corners of authorities websites for the relevant email address. c. Alerts them when authorities are late replying, and prompts them to chase up delayed requests. d. Provides helpful guidance in plain English on technical aspects of the Act. 11. From the public authoritys point of view, our service: a. Helps reduce their burden of responding to duplicate requests for information. b. Allows them to see how other authorities reply to FOI requests improving knowledge of the Act. c. Demonstrates how easily it can be to maintain a disclosure log. 12. From the point of view of the general public, our service: a. Increases the amount of information from public bodies easily available by simply searching the Internet. b. Allows them to comment on information released, or provide assistance to the original requester. 13. WhatDoTheyKnow was created and is run by mySociety. It was initially funded by the JRSST Charitable Trust. mySociety is a project of UK Citizens Online Democracy (or UKCOD), a registered charity in England and Wales (no. 1076346). 14. Projecting from Central Government request statistics 1 suggests that 14% of requests are made through WhatDoTheyKnow. 15. Like many charities, UKCOD utilises a mix of volunteers and staff in achieving its charitable objectives. A group of about seven volunteers deal with the day to day administration of WhatDoTheyKnow.com 2 .
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http://www.mysociety.org/2011/07/01/whatdotheyknow%e2%80%99s-share-of-central-government-foirequests-%e2%80%93-q2-2011/

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16. The main benefit of publishing requests and responses online is that the responses can be viewed not only by the person who made the original request but also by others who are interested in the same topic. In this way the site aims to reduce the number of duplicate requests public authorities receive and facilitate the free flow of knowledge. 17. Our statistics show that on average each FOI request made through the site is read by 20 visitors. This strongly suggests that the material on the site is of interest to a large number of people beyond just those who make requests. 18. We note the memorandum to the committee from the Ministry of Justice states, in paragraph, 67: Very little research has been published detailing the views of requesters of information. We believe that we are in a unique position to provide insight into the views of requesters, and note that our site is in itself a body of evidence documenting the practical experiences of FOI requesters in their efforts to obtain information from the public sector. 19. We are aware that our site carries only a subset of requests and that many people decide to make FOI requests in private for various reasons. We encourage members of the Justice Committee to browse our website to see examples of requests made.

http://www.mysociety.org/2009/10/13/behind-whatdotheyknow/

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Does the Freedom of Information Act Work Effectively?
20. The answer to this question is mostly yes: a. More public authorities are using disclosure logs to openly publish requested information in addition to supplying it directly to the requester. b. Many people are aware of their rights to information and expect to receive requested information promptly. c. WhatDoTheyKnow has helped prove that public information can be released cheaply and disseminated easily to a wider audience.

21. At the time of writing 63% of the requests made via WhatDoTheyKnow have been marked successful or partially successful, meaning that the requesters obtained at least some of the information they were seeking. 22. It is also now routine to hear MPs in Parliament asking questions based on information obtained using FOI, and almost every newspaper or online news site carries stories based on FOI releases on a daily basis. Freedom of Information has become part of our national culture and now forms a key part of our democratic system. 23. The effectiveness of the Act can be shown by information released being used to identify questionable public sector spending. One recent example of a request made through WhatDoTheyKnow revealed that Wirral Council had spent 250,000 on consultants for an abandoned privatisation proposal 3 . 24. Perhaps more importantly, the Act gives access to background and contextual material that helps in understanding the purpose of spending, and the associated decisionmaking process.

http://bit.ly/x50LSF

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What are the strengths and weaknesses of the Freedom of Information Act?
The strengths of the Freedom of Information Act
25. The Act has undoubtedly empowered people and given them rights they did not previously have to access information held by public bodies. 26. The definition of a request is non-prescriptive and informal, with no need to cite the Act or use any particular wording. This makes it very accessible - requesters dont need to know the law in detail when making a request. 27. The fact that no fees are usually charged removes a significant barrier to people seeking public information. We believe that charging would introduce a severe chilling effect on transparency, and would be a retrograde step.

The weaknesses of the Freedom of Information Act

Bodies not covered by Freedom of Information 28. We often receive queries from our users who are hoping to request information from bodies with a public role but which are not currently covered by the Act. 29. We support the Governments plans to extend the coverage of the Act to more bodies carrying out public functions. 30. The bodies not covered by the Act that are most frequently requested by our users are: a. Housing Associations b. Network Rail, Train Operating Companies and ATOC c. Water and Sewerage Companies d. Representative bodies of public authorities, e.g. Local Government Association; Association of London Government e. Duchies of Cornwall and Lancaster f. Local Safeguarding Children Boards g. London Organising Committee of the Olympic Games and Paralympic Games Limited (LOCOG) h. Nominet & JANET i. Corporate Officers of the House of Commons and House of Lords 4
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This is an issue for when the Commons and Lords cease to exist during dissolutions

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j. Press Complaints Commission 31. Other significant requests for coverage (which we support) are for outsourced providers (such as Serco PLC running private prisons). Although the Act makes provision for information held on behalf of a public authority to be covered by the Act, this has been interpreted quite strictly by the Commissioner and the Tribunal which has often made it difficult to get information about how outsourced services are being operated. 32. In addition, many shared service providers are often set up as joint ventures with minority stakes held by private companies (e.g. Southwest One Ltd, Liverpool Direct Ltd). This means they are not wholly owned private companies, so would not come under the new definition of public authority introduced with the Protection of Freedoms Bill. Time limits 33. The Act includes two significant loopholes that can lead to substantial and unbounded delays in responding to requests. 34. Firstly, the public interest test extension allows public authorities to delay final responses for a reasonable time while the balance of the public interest is considered. There is no statutory limit on the time that can be taken for this. 35. Secondly, the internal review process that is required before complaining to the Commissioner also has no statutory limit. 36. Although the Information Commissioner has produced guidance that sets absolute limits on what is reasonable in each case, these do not have the direct force of law and have proved ineffective in practice. 37. Fixed time limits for conducting public interest tests and internal reviews should be added to the Act, in line with the position in Scotland. We believe that this change would provide more certainty and reduce delays which undermine the purpose of the Act.

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Is the Freedom of Information Act operating in the way that it was intended to?
Publication schemes 38. We do not believe that publication schemes have been very successful. Typically only the minimum of information required by the Commissioner's model publication schemes are included, and it is often hard to actually locate the promised information on authorities websites. 39. WhatDoTheyKnow demonstrates that it is possible to engineer publication systems to facilitate disclosure of public sector information to a wide audience at minimal cost. We expect this to reduce the need for requests to be made, and therefore the cost to the public purse. 40. We believe that every authority should maintain an up-to-date disclosure log of requests and responses including refused or not held requests. This would help to bring some of the benefits of the WhatDoTheyKnow publication model to the full range of FOI requests they receive. 41. We believe that proactive publication of a much wider range of information would forestall significant numbers of requests, particularly many of the round-robin requests that are sent to large numbers of public authorities. For example registers of assets and of contracts would go a long way towards satisfying many of the requests we see from commercial organisations. Adding new bodies 42. Section 5 of the Act explicitly provides a straightforward mechanism for the government to bring a wide range of bodies fulfilling functions of a public nature or providing contracted out services under the FOI regime. However only a very few bodies have been added in this way. We believe that this power should be used much more extensively. The effect of WhatDoTheyKnow 43. The memorandum to the committee from the Ministry of Justice specifically mentions WhatDoTheyKnow, in Annex E: A few respondents also speculated that individuals now realise just how easy it is to submit an FOI request, citing the website WhatDoTheyKnow.com: 44. They go on to note that not only does WhatDoTheyKnow make it much easier for people to make requests, it has also made it easier for people to follow them up, for example by requesting an internal review.

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45. We believe that by simplifying the process of making a request, WhatDoTheyKnow increases the effectiveness of the Act. 46. By publishing responses we also make it easy for others to find the same information without needing to make a fresh request. The average (mean) number of requests made by a user of our site is about four. The average number of times a single request is viewed is around 20. 47. The site has been carefully designed to advise and guide users on their rights and responsibilities under the Act. In particular we prompt our users to search our site, public bodies websites, and the wider Internet, for information before making a request for it. At the internal review stage we require them to explain the reasons why they are seeking an internal review. 48. By making requests and responses public, we also make it easier for people to judge for themselves whether the Act is being abused. For example in a small number of cases before the Information Commissioner, the totality of requests by an individual or to a particular body on WhatDoTheyKnow has been cited as supporting evidence for a claim of vexatiousness. Vexatiousness 49. We support the general concept of being able to refuse vexatious requests and we note that the Commissioner and the Tribunal are generally very supportive of authorities that reject genuinely vexatious requests. 50. A balance needs to be struck between protecting public authorities and recognising that some requests will be entirely valid even if they do cause annoyance to the authority.

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Other difficulties with the Act
51. In the course of operating the WhatDoTheyKnow website we have encountered various other problems with how the Act has been applied. Finding the right public authority 52. Requesters often have difficulties identifying the correct public authority to send their request to. For example, confusion exists around the functions of police authorities and police forces. Requesters also struggle selecting the appropriate tier of local government (county, district, town, parish etc.) responsible for a certain function. 53. This has the undesirable effect of public authorities often receiving requests for information that they dont hold, which can be seen by some as a drain on public resources. Our experience is that FOI Officers are usually very helpful (in line with their duties under Section 16 of the Act to provide advice and assistance), and are easily able to quickly point requesters to the more appropriate public body. 54. Some authorities have unnecessary complex and costly procedures for logging correspondence like this for monitoring their compliance to the FOI regime - we believe this is not what was originally intended, and should be dealt with under a simpler business as usual regime. Contacting public authorities 55. Requesters nowadays expect to be able to correspond electronically with public authorities, therefore the provision in s8(2) of the Act for requests to be transmitted by electronic means is very important. One of the biggest challenges they face is finding correct email addresses for authorities FOI Officers. 56. We suggest that it should be a requirement of the Act that authorities publish contact details, including an email address, for FOI requests in an easy to find way. One suggestion that works well in Scotland, is for the Information Commissioner to be responsible for maintaining a register of public authorities. Format of responses 57. Authorities frequently insist on sending responses by post. Given that digitisation technology should be easily available to all but the smallest authority, we would like to see strengthened provisions in s11 of the Act for requesters to specify a preference for electronic delivery, including a preference for specific file formats. 58. Many authorities - including the ICO itself - release documents originally held in electronic format by printing them out and then scanning the results. This is wasteful and makes it very hard for further use of the documents without retyping the contents. 9

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59. There are provisions under consideration in the Protection of Freedom Bill for mandating the release of information in reusable form, but these will only apply to datasets, which is a very limited subset of all the information covered by the Act. We believe that the Act should be clarified to make this a requirement (where feasible) for all releases under the Act. Defamation 60. Section 79 of the Act extends privilege to public authorities issuing requesters with defamatory information. We recommend this privilege be extended to third parties who re-publish such information without malice, allowing campaigners or journalists working with such material a level of legal protection Section 44 61. Section 44 of the Freedom of Information Act exempts information from disclosure if other legislation would prevent its release. Unlike many of the other exemptions in the FOI act, it can be applied even where there is an overriding public interest in making information available. 62. Information in the following areas has been requested via WhatDoTheyKnow, and not made available: tax affairs, local government maladministration complaints, animal experimentation, investigations or regulatory dealings with communications companies or financial firms, investigations into companies, police investigations, product safety and many other fields 63. Our recommendations to improve the level of transparency in this area are: a. Make s44 a conditional exemption, requiring a public interest test to be carried out when invoking it. b. Existing powers under s75 of the Act should be used to review and repeal unnecessary restrictions on information publication. c. The legislation "Impact Assessment" process should include the effects of the new law on FOI and transparency. d. Parliamentary legislation scrutiny committees should draw MPs attention to any FOI restrictions Ministers are seeking to introduce.

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Conclusions and recommendations
64. In summary, we believe that the FOI Act has strongly improved the transparency of public authorities, and has been broadly welcomed by the general public. Requesters have become more aware of their rights under the Act, and are putting released information to good use, whether by reporting it as news, holding their elected representatives to account, or campaigning for improvements in public services. 65. WhatDoTheyKnow is increasingly playing a significant role in this process, by educating the public in practical use of the Act, and by making information available and easily searchable in a single place. 66. We recommend that fixed time limits be introduced for Public Interest Test and Internal Reviews. 67. We would like the coverage of the Act to be significantly extended to cover a wider range of bodies with public responsibilities. 68. We believe that authorities should do more to pro-actively publish information. February 2012

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