FOI in Practice

Freedom of Information is a fantastic tool for improving democracy and equality, but there are also tremendous benefits for improving the professionalism, integrity, honesty and value for money of all public services. The continual state of crisis management that haunts many public services is often the result of problems that were allowed to fester and grow in the traditional climate of secrecy.

Contrary to expectation, FOI was not used solely by journalists in the early years, though they were first off the mark on 1 January 2005 putting in requests. Very quickly, citizens took over to become the main users of the Act. In the first year, FOI requests broke down like this:

• 70,000 requests to English councils

• 40,000 to central government and associated public bodies

• 21,000 to police forces nationwide

• 2,083 requests to higher education

• 400 to the General Medical Council

• 18,000 voluntary groups used the Act at least once in the first year and 50,000 bodies plan to use it in the future

That's a lot of people exercising their right to know, especially considering there was almost no promotion of the Act from Whitehall. Information Commissioner Richard Thomas told me his office spent just £218,000 promoting the Act over a three-year period up to March 2006. Perhaps as a result, only 11 per cent of people knew about the FOIA without prompting, according to a survey done by his office. Awareness does rise to 79 per cent when prompted, however, usually by mentioning stories in the media where the law is cited for a major disclosure. Awareness was higher in Scotland, due to the Scottish Commissioner's more proactive role promoting the Act.

The new openness laws have not overloaded public services or led to the collapse of government. The Commissioner's survey found that 81 per cent of FOI practitioners cited the Act as a positive piece of legislation and only 3 per cent thought it particularly troublesome. Even more noteworthy, 79 per cent of public authorities said releasing information under FOI had increased trust in their service and improved records. As a result of the greater accountability they said public relationships had improved.

The Yes, Minister aphorism that you can either be open or have government but not open government is simply not true. History shows that those countries with a strong free press and freedom of information laws are the best run and most economically successful, while the ones adhering to the 'Yes, Minister' view are badly run dictatorships.

Ironically, in 2006 the UK government was involved in a secret review of the FOI Act and there was concern that politicians were laying the groundwork for weakening the law further. The Lord Chancellor Charlie Falconer claimed public bodies were being overwhelmed with vexatious FOI requests and that fees would need to be introduced to cope. Yet, the Chancellor only knew of six such requests – out of more than 150,000 across the public sector.

The real problems with the law do not come from the public, but from those in power who are neither adhering to nor enforcing the law in a timely way.

PROBLEMS IN THE EARLY YEARS AND HOW TO OVERCOME THEM Delay

Information is a highly perishable commodity so undue delay diminishes its usefulness. Delay has been the number one problem with the law. Unfortunately, the regulator meant to tackle this problem is only adding to it with more delay and a backlog of cases. Nevertheless, the minister in charge of FOI told the Parliamentary committee investigating the first year of FOI: 'There's nothing I see that is a systemic problem in relation to delay' (Baroness Ashton of Upholland speaking to the Constitutional Affairs Committee, 18 April 2006).

Delay is endemic in all stages, and is likely to get worse before it gets better. Firstly, some public authorities are failing to respond within the 20-working day limit. The Home Office is a persistent offender. The department waited until 19 September 2005 to respond to a request sent on 3 January 2005, and then the answer was to refuse the request because answering would exceed the cost limit. The complainant then refined the request to bring it into the cost limit, only for the Home Office to say the information was exempt! The Information Commissioner's ruling on 2 November 2005 stated only: 'the Home Office has breached the time limit for compliance under the Act and has advised the ICO that it expects to provide a substantive response to the complainant by 14/12/04' (Case Ref: FS50073711).

Then there is the whole appeals process that can take up to a year or longer. Before you take a case to the Commissioner, you first have to seek an internal review from the same public body that originally refused your request. You won't be surprised to learn that in 78 per cent of cases the public body agrees with its original refusal. The law does not specify a deadline for internal reviews, but all public authorities should have a complaints policy that states their performance targets.

Another delaying tactic adopted by bureaucrats is a loophole in the law that allows public bodies a time extension if they need to consider the public interest. The Metropolitan Police cited this extension three times while delaying my request for documentation about the shoot-to-kill policy. In total, I waited four months for their answer, which was only a partial disclosure.

Unless this loophole is closed, I predict that it will become widely abused as a means of discouraging the public from asking questions. Ultimately it is up to the Commissioner or Parliament to step in and set strict time limits. The current failure to impose any deadline sets a bad example that will only encourage these delaying tactics.

Ironically, it is within the Commissioner's Office itself that one encounters the greatest delay. Out of seven cases I put through to the Commissioner, just one had been processed after more than a year. By March 2006 there were 1,372 cases still open. Friends of the Earth discovered that of all the cases pending as of 15 January 2006, 586 cases were older than six months and 106 had not even been allocated to a caseworker.

This delay is frightening because only a fraction of refusals go to the Commissioner (0.72 per cent to be exact). Only the most tenacious citizens are taking their cases to the Commissioner, so if there is already such delay, it can only discourage others from seeking review. Finally, in March 2006, the Commissioner announced that he was implementing a performance target of closing 50 per cent of cases within 60 working days.

The...