FOI 95

Written evidence from Centre for Public Scrutiny

Introduction
1. The Centre for Public Scrutiny is a charity devoted to enhancing transparency and accountability in public services. We produce research and work closely with practitioners to identify problems and practical solutions in the way the decisions are made and held to account. Over the last few years, we have worked in the local government, charity, health, education and housing sectors to identify ways in which transparency and accountability can be enhanced – principally, by building links between different organisations at local level, and identifying how and in what context accountability can lead to improvements in the effectiveness of service delivery. Because the focus of our research is on accountability in its broadest sense, exploring how decision-makers respond to those who are holding them to account, and the cultural barriers that can often be experienced in securing effective governance, our response will focus on these cultural issues rather than on specific, process-led issues relating to the volume or nature of information requests, and responses to those requests. Our interests lie in proactive rather than reactive provision of data.

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Cultural challenges around transparency and accountability in the public sector
4. We have carried out significant amounts of research over the last several years on cultural, behavioural and attitudinal issues relating to transparency and accountability in the delivery of public services. Our research “Accountability Works” (2010) 1 highlights the existence of a “web of accountability” that cuts across a range of different public bodies, and where different forms of accountability intersect. Transparency, and the publication of official information, helps this accountability to be exerted – but transparency and accountability are not the same thing, and the publication of information does not automatically make for a more transparent organisation. Nor will the publication of information (particularly not reactive publication) automatically bring about any of the objectives of FOIA, as set out in the context of the memorandum’s assessment of those objectives. We consider the approach that the MoJ has set out in its memorandum – based on the assumption that adherence to the process of the FOIA naturally means that these objectives has, to a greater or lesser extent, been met – is flawed. Further research, such as current work we are carrying out on assessing “return on investment”, and research carried out in 2011 on value for money, cost-benefit analysis and social return (“Counting the cost, measuring the value” (2011) 2 , “Measuring what matters” (2011) 3 ) demonstrates the direct benefits of transparency in terms of economy, efficiency and effectiveness.

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http://www.cfps.org.uk/publications?item=91&offset=75 http://www.cfps.org.uk/publications?item=112&offset=50 3 http://www.cfps.org.uk/publications?item=106&offset=50

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In our research on performance management, and the use of performance information to drive improvement, (“Green Light” (2010) 4 ) we highlight and explored the cultural issues prevalent around transparency. We found that the production and dissemination of information is often seen as a process issue – an additional and unwelcome burden, entirely distinct either from service delivery or from meaningful improvement. A reactive approach to transparency has led to the increased publication of data and information 5 , but data and information made available in an ad hoc way not easily digestible to the average layperson, and devoid of meaningful context 6 . We do not think that this culturally defensive approach on the part of public bodies bodes well for the “army of armchair auditors” 7 that Ministers believe and expect will take on responsibility for exerting accountability in the new structural landscape of the public sector post-2012. A true cultural understanding about the benefits of transparency would lead to a situation where the publication of information was seen as a natural byproduct of its original production. Discussions around the minutiae of time and cost limits and the public interest test, and “frustration” at serial requesters, all suggest a lack of understanding about what FOI is for, and what transparency can achieve in terms of improved decisionmaking. In particular, a preoccupation with the “cost of compliance” 8 presents a gloomy view of a world in which responding to requests is a process-driven approach entirely decoupled from corporate improvement processes. The MoJ memorandum reflects this mechanistic emphasis on process – on form, rather than impact and outcome. Even the section on accountability 9 assumes that accountability is always about holding to account for past actions, rather than exploring policy development and improvement opportunities 10 . Importantly, this section also does not mention a key source of accountability for the new Government – accountability through choice and the market, which relies on the provision of timely, relevant and accurate information about public services. Cultural change was the prevailing theme of the 1998 White Paper – the Government’s message has now degenerated to leave us in a position where “compliance” is the key marker of success. The fact that Government feels it may be necessary to legislate to require public bodies to release datasets – when a culturally open approach towards transparency and accountable would mean that those bodies would already publish such data – suggests that the process of culturally embedding the principles of freedom of information, and of open data, has a long way to go. Of additional concern in this context is the apparently growing body of evidence from information managers (set out in the

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http://www.cfps.org.uk/publications?item=6965&offset=0 As outlined in para 169 of the memorandum 6 An issue on which we commented on our formal response to the DCLG “Recommended Code of Practice on Data Transparency” (2010). We are surprised that the MoJ memorandum does not attempt to address context-related issues in its examination of responses to data requests. 7 See, for example, DCLG press release, October 2010: http://www.communities.gov.uk/news/newsroom/1730482 8 Para 172, see also discussion of the “additional burden of compliance” complained about by public bodies engaged in commercial operations. 9 Section 5B, paragraph 200 onwards 10 This is a principle which we explore more fully in “Accountability Works”, supra

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memorandum appendices) that the regime should be “tightened up” to prevent any inconvenience and irritation these managers may experience as a result of answering complex requests, and (for example) the assertions set out in paragraph 205 around use of the regime by journalists, which contradicts a strong founding principle of FOI that decisions on responses should be made neutrally, and irrespective of the intention or end objective of the requester in asking for the information. Collectively, this presents a onesided picture that takes no account of the wider benefits of transparency, or the aspirations and democratic rights of citizens making requests in the first place.

Local government
11. The Government has taken a number of steps to open up decision-making in local government in recent months and years, and to bring local people closer to decision makers. The Freedom of Information Act should be seen in the context of these other measures, which include legislative provisions on petitions 11 , the so-called “Councillor Call for Action” 12 , and the requirement for councils to publish expenditure information above £500 13 . The previous Government sought to enhance the proactive availability of public information through such means as the “oneplace” website, which aggregated National Indicator Set (NIS) data across the country 14 ; the current Government has also, as the MoJ memorandum notes, imposed a number of requirements on local authorities around proactive provision of a range of datasets. The local government sector itself has long recognised the value in sharing high-level performance data amongst professionals 15 , although this has not always been easily translated into a willingness to share such information more broadly with the public. The Localism Act involves a number of changes, including the community right to challenge and the community right to bid, which rely on the proactive provision of information by local authorities and their partners; other structural reforms introduce market-led approaches to service provision in areas such as health, social care and education, which are predicated on the availability of significantly more, and more accurate, information about provider performance to allow consumers to make intelligent choices about who provides them with public services. In this context, the Freedom of Information Act is but one element in a rapidly widening spectrum of transparency provisions, being led by a range of different Government departments, largely in isolation. We will focus on three areas within local government where research we have carried out suggess that practice demonstrates some important wider lessons about the operation of the UK’s freedom of information regime.

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Introduced in the Local Democracy, Economic Development and Construction Act 2009 Ibid 13 Cited in the memorandum and also see http://www.communities.gov.uk/localgovernment/transparency/localgovernmentexpenditure/ 14 Now abolished 15 Most recently through the Local Government Association’s “LG Inform” web-based tool
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a. Transparency in public service partnerships
15. Government is encouraging public bodies, and organisations delivering public services which may not be “public bodies” for the purposes of FOIA, to work together to deliver services – particularly in local areas. This is a trend that began in earnest with the Total Place pilots of 2009/10, and which has continued with the present Government’s approach towards community budgeting. The Government has also encouraged councils to adopt innovative, partnership-focused service models in order to save money. Councils and other public bodies are beginning to share staff and offices, develop policies and procedures jointly, and make decisions in “partnership boards” which sit above the level of individual organisations, such as Local Strategic Partnerships 16 (LSPs), Community Safety Partnerships (CSPs) and Health and Well-Being Boards (HWBs). With this comes the sharing of data, and the creation of governance structures that are often not subject to formal scrutiny. While requesters can still approach individual organisations to acquire partnership information, the fact that partnership bodies are not “public bodies” for the purposes of the Act (and, in many instances, lack legal personality) creates significant problems in terms of transparency, accountability and the probity of decision-making. Parties to such partnerships are under no obligation to release information about regular meetings or decisions made in partnership, and their work tends not to be publicised or held to account in a coherent way. The FOI regime as it exists now reflects individual organisational boundaries 17 – in the developing landscape of more innovative means of decision-making, it will become increasingly separated from reality. This will particularly be the case as more services of a public nature are provided by private organisations 18 , exempt from the Act. In order to extract information relating to these services, requesters will have to negotiate contracts and understand which public body has commissioned the service initially – and hope that this public body has access to the information sought. Requesters will also need to expect to be frequently rebuffed under the “commercial confidentiality” exemption. We advocate more than an expansion of the list of organisations to encompass other bodies – it could be that a more expansive general class description of “public body”, or amendments to the regime to take account of partnership working, will be necessary to avoid this problem from being compounded in the future. In this context, the complex nature of the Order-based process set out in ss4 and 5 of the Act for the imposition of FOI obligations on other bodies is inflexible and unresponsive.

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Abolished in statutory terms in the Localism Act 2011, but expected to continue in most places because of the practical benefits they bring in terms of more joined-up decision-making. 17 Insofar as it requires individual, specific public bodies to draft publications, respond to requests, and so on. 18 For example under shared services or commissioning arrangements. We explore the implications of these issues in our policy briefing on this subject at http://www.cfps.org.uk/publications?item=6982&offset=25

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It is disappointing that the memorandum makes no attempt to engage either in the development of public service partnerships or the increasing delivery of public services by private organisations.

b. Use of FOIA by overview and scrutiny committees
20. Overview and scrutiny committees in local authorities have specific rights under the Local Government and Public Involvement in Health Act 2007 to “request information” from certain public service partners (listed in s104 of the Act). These powers are intended to complement those in the Freedom of Information Act and will be restated in the Localism Act 2011, once that Act has commenced. In local government, there is not a widespread use of the Act by overview and scrutiny members or committees. We are aware of only a few examples of councils which have used the FOI regime to extract information from public bodies in the local area. Such use of the Act is regarded by many as a “nuclear option” which, if exercised, would probably have wide ranging political and organisational impacts.

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Case study. 22. In one unitary authority (Borough A), there was a particular instance where the Freedom of Information Act was used by the chair of a scrutiny committee to try to obtain council performance information. In 2009, the council moved from a system of quarterly performance reporting to reporting high-level information six-monthly. Scrutiny committees received this information as a matter of course. However, the chair of one committee noted that her committee had not received relevant data for more than a year, notwithstanding repeated requests. The chair decided to submit a formal Freedom of Information request on the committee’s behalf. The request was rejected on the grounds that the material was intended for future publication (and it was published subsequently, although earlier that would have been the case but for scrutiny’s involvement). There was an immediate understanding within senior management at Borough A that the fact that this was necessary said a lot about the organisation. The chair felt that performance data had become the “possession” of the council’s Cabinet, but without any feeling of corporate ownership – this was a systemic issue, rather than a “cover up” of particular data. Resistance to publication was political in nature, and derived in part from a lack of ownership on the part of Cabinet of this information. Hence, there was an unwillingness to release and discuss information which was not properly understood, or engaged with, by the council’s leadership. This reveals a tension about who should be engaging with performance data – officers or politicians, scrutiny or the executive – not to mention, the council corporately, or local people. 5

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The council’s more recent approach to performance management and monitoring has demonstrated a sea change. A change in political control in 2010 did not automatically lead to better practice, but contributed to a process of change that has led, as a direct result of the FOI request, to a more open and engaged approach with performance information. Evidence of this can be found in more recent scrutiny work that Borough A has been carrying out which has looked at the use of KPIs and other performance measures in a public-faced service. Here, members examined performance information in detail, examining whether key performance indicators (KPIs) in the service concerned had meaning. This demonstrates a more open, accountable and sophisticated approach to performance information, both by the executive and by scrutiny, than was apparent in 2009, and in consequence a renewed focus on performance information as a source of accountability and as a means for bringing about improvements. Borough A’s example demonstrates that use of FOIA under these circumstances can yield significant results, but these are results that go far beyond process and compliance objectives for the Act, and transparency in general. Borough A’s experience with the FOIA in this context provoked significant organisational change. While the use of formal measures such as FOIA could be corrosive to a positive working relationship between scrutiny and the executive, in this instance it kick-started a more productive approach. Given that this connects strongly to the cultural issues discussed in the earlier section, it is difficult to say whether this positive result would be replicated elsewhere were the circumstances to be repeated. It remains the case, however, that from time to time disputes may occur and, as we have demonstrated, the existence of such formal powers – even if (in fact, especially if) very infrequently used can be an extremely powerful tool in councillors’ arsenals. We cannot comment on the use of FOIA by individual councillors in the conduct of their ward work (whether requests are made of the council or of other public bodies in the area).

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c. Use of Schedule 12A of the Local Government Act 1972 (as amended)
32. Schedule 12A of the Local Government Act 1972 was amended by regulations shortly before the commencement of the FOIA. It makes provision for councils to exempt from publication certain information including, in particular, “information relating to the finance and business affairs of any particular person”, including the local authority in question. All the Schedule 12A exemptions are qualified by a public interest test which is restated at paragraph 10 of the schedule. Anecdotally we are aware that many councils continue to take an approach in their use of Schedule 12A that may not accord with the spirit of the FOI regime. While this is not true of all authorities, there can be a tendency to apply exemptions in a broad brush manner, rather necessarily than to focus on the redaction of specific pieces of data, subject 6

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(where applicable) to the public interest test. For example, we are not aware, across the spread of local authorities, of the public interest qualification, where it does apply, being applied consistently to decisions on exemption – although most authorities have internal paper guidance on this issue prepared at the time of the FOIA’s commencement. 34. For example, we are aware of examples of the exemption around finance and business affairs being used to exclude entire reports on council contracts, shared services and commissioning arrangements, and for this to cause problems for scrutiny committees who wish to investigate such issues further (and, in a broader sense, the general public). In the context of Government plans to open out procurement and commissioning in the public sector (and echoing the concerns we expressed earlier in this response about partnership working), we do not find the wording of Schedule 12A, as amended, particularly helpful on this point. We also note that, in excluding entire reports, authorities may in some instances unwittingly be excluding some evidence which should technically be published under the terms of the FOIA. In the context of achieving the policy objectives both of the FOIA, of providing additional certainty around where whole documents should, and should not, be excluded, and of transparency in local decision-making (in line with the principles of localism) we would suggest that a complete overhaul of Schedule 12A and its associated provisions is necessary. Although Schedule 12A is not a part of the formal “freedom of information regime”, it is fundamental to the way that local authorities proactively publish information and needs to be considered as an adjunct to any study of the FOIA. The paragraphs of the Schedule were amended significantly to comply with the provisions of the FOIA.

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Conclusion
37. In our view Governments of all political hues have taken a piecemeal approach towards freedom of information in the recent past. The Freedom of Information Act has been only one element of a raft of unconnected policy provisions which have collectively promised much, but delivered little in the way of real change to the way that decision-makers think and act – as the MoJ memorandum makes clear. In an environment where adherence to procedure is deemed more important than substantive, meaningful transparency, it has proven difficult for anyone with a stake in this debate to focus on the fact that transparency can help to improve the way that services are delivered. Instead, disagreements about the way in which the resource implications of FOIA are calculated, and the intricacies of the public interest test, have predominated. A review exclusively of the Act itself reasserts this ad hoc approach, and we strongly urge the Committee to take this opportunity to carry out a more general investigation into freedom of information and transparency across Government, with the assistance of other Committees.

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February 2012
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