Freedom of Information

1. Freedom of Information A vital tool for journalists and campaigners

2. Basic background • On January 1 2005, five important new rights to information came into force: • The Freedom of Information Act 2000; the Freedom of Information (Scotland) Act 2002; The Environmental Information Regulations 2004; the Environmental Information Regulations (Scotland) Act 2004 and Amendments to the Data Protection Act 1998 • Freedom of Information Act covers more than 100,000 public bodies including all UK Government departments, public authorities in England, Wales and Northern Ireland. Applies to the House of Commons, House of Lords and the Welsh and Northern Ireland Assemblies; the FOI (Scotland) Act provides similar, although slightly better, rights to information held by the Scottish Executive, Scottish public authorities and the Scottish Parliament. NHS bodies including GPs, dentists; schools, colleges, universities; the police, quangos, BBC (though not in relation to journalistic materials) are all covered.

3. 30,000 requests a year • The Act has six objectives, as defined by the UCL Constitution Unit: • To ensure greater transparency of public bodies • To ensure greater accountability of public bodies and politicians • To increase public participation in government • To improve government decision-making • To improve the public’s trust in government • To improve the public’s understanding of government

4. Environmental information • If the information you want relates to the environment, your request will not be dealt with under the FOI Act but under the Environmental Information Regulations. These implement a European Union Directive and provide stronger rights of access than the FOI Acts. A feature is that information about emissions to the environment cannot be withheld on grounds of commercial confidentiality. • Definition of ‘environmental information’ is wide: it includes information about the state of the air, water, land, natural sites and living organisms including gm organisms. Covers discharges to the air, water or land including energy, noise and radiation

5. One expert view • ‘The Freedom of Information Act 2000 has changed journalism in Britain. Four years after it was introduced the flow of news stories relying in whole or in part on information gained through a request to a government department, agency or statutory body has become continual. Although Government ministers insist that the act was not created for the benefit of journalism, there is no doubt that for a number of journalists the Act has altered the way they work and their expectation about the information they can gather through it.’ • Jeremy Hayes (2009) A Shock to the System

6. Benefits to journalists • Improves accuracy by having access to official documents • Broadens considerably access to previously concealed/unpublished information • A more exclusive way of gleaning information from public bodies than Written Answers which are published in Hansard • (handout)

7. Journalists have been known to make frivolous requests • Examples of frivolous questions using the FOI Act: • How many toilet rolls were used at Number 10 during Tony Blair’s administration • How many accidents have there been in the BBC TV Centre’s toilets • How much does John Prescott weigh • What type of tea is drunk at the MOD • How many exorcists are employed by Westminster Council’s housing estates department

8. Civil Servants hate it • (Gus O’Donnell handout) • There has been recent exposure of ways Government departments have tried to get around the Act, by putting sensitive information into personal emails. The Campaign for Freedom of Information, a charity, is now lobbying hard for a strengthening of the Information Commissioner’s powers to prosecute authorities or officials who destroy information to prevent its release under the FOI. • Special advisers and the Secretary of State for Education are reported to have deliberately used private email accounts to keep correspondence off the department’s official servers. Maurice Frankel, director of the CFOI said of the matter: “If the emails had once existed but been destroyed before a request was made, no offence would have been committed – even if they were deliberately destroyed to pre-empt any future request.” • Under section 77 of the Act it is an offence for a Public Authority or official to deliberately destroy, alter or conceal a record which has been requested under the FOI Act. The penalty for this is a fine of up to £5,000

9. NOT a universal panacea, sadly • Not enough money for the Information Commissioner to deal with a large backlog of cases • Sometimes information is heavily ‘redacted’ for no apparent reason • Journalists claim ministers are ‘weakening’ the Act, especially by manipulating delays in the process • Maurice Frankel, director of the Campaign for Freedom of Information says that particularly in the early years, public bodies were guilty of ‘redaction mania.’ • The BBC has continually resisted publishing high-flying stars’ pay because of the exemption for anything that comes under the vague categories of material used by the corporation for ‘journalistic, artistic or literature purposes.’ • Journalists complain that public bodies routinely use the excuse that the request exceeds the cost limit (£450 or £600 depending on the public body you are approaching). • Government departments can hide behind ‘information not held’ excuses – but as this example shows, honesty is often not a priority: http://www.whatdotheyknow.com/request/warmfront_scheme

10. UCL study • Professor Robert Hazell of UCL’s Constitution Unit has produced a report on the legislation: ‘Does FOI work? The impact of the Freedom of Information Act on Central Government in the UK’. Professor Hazell argues that as many as two thirds of FOI-originated stories led to a decrease in trust in the Government, focusing on financial misuse, poor performance, inefficiency and failures. • Hazell’s findings include: • Public participation has NOT increased as a result of FOI. ’99.9 per cent of the population do no not make FOI requests. Newspaper reporting of FOI does not encourage them to participate.’ • He argues that newspaper reporting has decreased, rather than increased trust. ‘Two thirds of the press stories which we analysed were likely to decrease trust. This is not a failure of the FOI, but a failing of the press, reflecting editorial values which strongly select negative stories.’ Is this true, or is this a case of blaming the messenger? Is it the fault of the press that there is so much financial mismanagement, poor performance and failing in public bodies?

11. The research has identified 8 ‘iron laws’ of FOI: • 1) The media are central players – given that so few people make FOI requests, journalists are the key conduit for shaping public perceptions based on FOI. The government’s battle with the press over negative FOI stories is one that can never be won. • 2) Government holds all the cards: It holds the information and can resist disclosure for years if it wants to, and exercise a veto. • 3) Both sides will game the system. Both requesters and officials do this. • 4) Government will always be seen as secretive. There will always be friction in this area, especially between Government and the media. • 5) FOI never settles down. Although in terms of case law and bureaucratic routine it has begun to settles down, at a wider political level it never does. • 6) A few FOI requests cause most of the trouble. A few high profile cases cause disproportionate effort, media attention, public controversy and political pain. (eg expenses) • 7)FOI does not increase public trust. This is because of the media’s predominantly negative reporting, exacerbated by government resistance to media requests. • 8) Officials have nothing to fear from FOI, save for the extra burden on resources • Remember: this research was conducted with the help of an ESRC grant

12. More research • There is an interesting article on journalists’ use of FOI published in the Open Government Journal: http://www.opengovjournal.org/article/view/771/791 • Here are some of the key points: • In most other countries, the proportion of journalists using FOI to total requester population is low. In Canada it is around 10 per cent; in the US it is around 5 per cent; in Australia use amongst journalists is ‘particularly low.’ • In Sweden, figures suggest 40 – 70 per cent of journalists’ articles use information obtained through FOI. • Figures suggest that in the UK, journalists’ use of FOI requests is higher than in other countries: ‘half of all requests made to central government in the first month of operation of FOI were filed by people identifying themselves as journalists.’ • What does this tell you about UK public engagement with politics?

13. contd • FOI response times in some countries are slow and cumbersome. ‘The 20-working-day response time’ feels like an eternity in a 24/7 news environment. Exemptions are seen as ‘too broad and too readily applied. Journalists are put off by the fact that access to whole classes of information, such as high level government papers…is generally denied. • Costs are in some countries seen as excessive – in Australia journalists have been asked to pay up to Aus$70,000 – a reason why take up in Australia is so low. • In Sweden, where take up is highest, requests are dealt with almost instantaneously and almost all requests are granted. In the UK, FOI is of most use to long term investigative reporters. • In some countries, like Canada, if officials know the request is from a journalist, then it is given an ‘amber light’ procedure: it takes longer and if it is sensitive, minsters are given briefings on how to deal with the fallout.

14. contd • An analysis of newspaper articles in 2005 showed that 602 used information obtained through FOI, 64 per cent in the ‘quality’ press and 36 per cent in the popular press, with the Guardian, Times and Sunday Times publishing the largest number of FOI-information based stories. • The most prominent types of stories were those relating to costs and expenses (21.2 per cent), with the least number relating to domestic security matters (1.5 per cent). 9 per cent were described as ‘whimsical or trivial’; 6.4 per cent were to do with ‘malpractice or impropriety.’ • The reasons journalists gave for using the Act were, in the early months the ‘novelty’ factor; later on, because the Act gave them access to more information than they would normally get. • One journalist received information from the Metropolitan Police about the costs of policing Abu Hamza’s preaching outside the Finsbury Park mosque and said: ‘If you went to the press office they would say the figure is not available, and they certainly wouldn’t go and get it for you.’

15. Another journalist said: ‘It’s made a noticeable difference in that you can go and ask for things where previously you would just have given up or thought it was a dead end. I think it has made a real difference in giving you the opportunity to pursue things if you are really intent on a particular issue or angle. • Another journalist also noted how the Act had slightly changed his relationship with ‘inside’ contacts. ‘Certainly contacts of mine have said ‘you might want to put in a request for XYZ, so I suppose it’s made a difference from that point of view, whereas previously they’ve said ‘you won’t be able to see that material for 30 years.’ • Investigative journalists have said it is particularly useful in getting hold of primary source material which would have previously been unobtainable (Remember Nick Davies’ Leveson testimony).

16. Case studies • Have a look at the BBC’s FOI page http://news.bbc.co.uk/1/hi/in_depth/uk/2006/foi/default.stm • Has the corporation’s requests contributed to transparency of public bodies/greater public information?

17. Case study 2) Cost of policing the Iraq inquiry • The Sun, March 18 • http://www.thesun.co.uk/sol/homepage/news/2897730/Cops-Blair-Iraq-Inquiry-bill-273k.html • Here is a summary of how the information was released. Is the £273,000 figure accurate?: • http://www.whatdotheyknow.com/request/cost_of_policing_for_iraq_inquir#incoming-75937

18. Case Study 3 • case study 3) Cost of employing translators by immigration officers • Daily Mail Oct 29 2008 • Here is an example of MPs working with newspapers – in this case shadow police minister with the Daily Mail, where the MP gets the information and the paper publishes it: • http://www.dailymail.co.uk/news/article-1081644/Migrant-surge-pushes-police-translators-22m.html

19. Case Study 4 • Camerons’ Christmas card list November 2011 – fairly frivolous – but revealed a lot about who was left off: • ‘Argentina and the Dominican Republic make the cut, but Peru and Venezuela do not. The prime minister of Malawi is on the list, but South Africa's president Jacob Zuma is not. • France's president and prime minister both appear, as do the heads of state and of government of Poland, India and South Korea. But only Dmitry Medvedev, as president of the Russian federation, makes the grade; prime minister Vladimir Putin is conspicuous by his absence.’

20. Is it worth it? • A recent Justice Committee report concluded: • The cost of freedom of information requests to central Government in 2005 was estimated at £35.5 million. The Constitution Unit estimated the cost of freedom of information to local government at £31.6 million in 2010. Assessing the true cost of the freedom of information regime is also difficult given that the benefits that arise from the right to access information cannot usually be costed. Dr Ben Worthy, of the Constitution Unit, told us: • The difficulty is that people, particularly those at the top of organisations, see transparency as something with concentrated costs and dispersed benefits [...] one of the difficulties is seeing the benefits in concrete terms in the same way that you can easily and quickly see the financial costs and, in some cases, the political costs of openness. There may be a bias in the discussion about how much FOI costs • At a time when local authority budgets are squeezed is finding out whether a council employed an exorcist the correct way to spend money?

21. Journalists’ response • Several witnesses gave us examples of where money had been directly saved by the exposure of inefficiency or poor practice. • David Hencke, Senior Investigative Journalist for ExaroNEWStold us about a recent story he had broken which arose from a freedom of information request which revealed that the head of the Student Loans Company was being paid through a company rather than by his employer and was therefore paying a lower rate of tax: • "The general feeling is that the Lester case, frankly, was a complete fiddle. It was the only known case of someone getting paid holidays and a pension who was actually a company."Mr Hencke calculated that the revelations "saved the taxpayer at least £26,000, if not £40,000" as Mr Lester's contract had been varied as a result of the publicity, but that the consequent savings of the Government's decision to cease payment of civil servants through companies saved much more. • Maurice Frankel of the Campaign for Freedom of Information, also highlighted the deterrent effect of the greater level of transparency introduced by the Act: One of the early freedom of information requests in Scotland revealed that councillors in a particular authority were flying all over the world to go to flower shows— spending £6,000 a trip to go to Tokyo for a flower show. That stopped the moment FOI exposed it.

22. Over to you • 1) Using the internet, either newspaper websites and or/ FOI websites such as www.whatdotheyknow.com find two news stories that originated partly or wholly from FOI requests. • 2) Have there been any recent Kent-based FOI stories? See if you can trace a few • 3) If you were working for a Kent-based news outlet, what kind of areas/issues might you look at in terms of putting in an FOI request

23. Making requests and challenging refusals • To make a request, the first thing you need to know is which bodies are covered by the Act. For a full list of bodies covered by the Act, see www.foi.gov.uk/coverage.htm • Before requesting information, it is usually worth checking what information the authority has already published. In particular, have a look at the authority’s ‘publication scheme’. The Act requires every authority to have a publication scheme and whether there are charges for it. The schemes are approved by the Information commissioner and are legally binding. • Have a look at Kent, Medway websites: do they have an FOI button and what happens when you press it?

24. How do I apply? • A request should be made in writing: email, letter or fax are valid; a request to a Scottish authority made on voicemail may also be valid • Send it to the authority’s FOI officer • Authorities are required to provide reasonable advice and assistance to anyone who has made, or wants to make a request for information • Model letter handout