Oireachtas Joint and Select Committees
Wednesday, 20 March 2013
Joint Oireachtas Committee on Finance, Public Expenditure and Reform
Freedom of Information (Amendment) Bill 2012: Discussion with Centre for Public Scrutiny
Item 8 on the agenda is public consultation on the draft heads of the general scheme of the Freedom of Information (Amendment) Bill 2012. I welcome Mr. Ed Hammond from the Centre for Public Scrutiny in the UK. I believe Mr. Hammond is available to make some opening commentary following which there will be a question and answer session which will tap into your expertise on this issue.
I wish to advise the witness that by virtue of section 17(2)(l) of the Defamation Act 2009, he is protected by absolute privilege in respect of his evidence to the committee. However, if he is directed by the committee to cease giving evidence in regard to a particular matter and continues to do so, he is entitled thereafter only to a qualified privilege in respect of his evidence. The witness is directed that only evidence connected with the subject matter of these proceedings is to be given and is asked to respect the parliamentary practice that, where possible, he should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members are reminded of the long-standing ruling of the Chair to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
I thank Mr. Hammond for joining us this afternoon and invite him to make some opening comments, after which committee members will engage with him.
Mr. Ed Hammond:
Thank you and good afternoon. I will begin by explaining what the Centre of Public Scrutiny is before going on to talk about some of the research I have been doing in the past few months on transparency in Britain and particularly England.
The Centre for Public Scrutiny is a charity whose principal role is to promote the idea of good governance by considering accountability, transparency and the involvement of the public in decision-making. Our main focus is on local government and we receive funding from the English Local Government Association to provide support and advice on governance to councils. We also have a broader role and that is why I have been carrying out research on transparency in the light of recent changes in government policy on transparency and open data, which principally affect England.
I will briefly provide a context for the policy environment on the other side of the Irish Sea. The Freedom of Information Act applying in the UK was passed in 2000 and commenced in 2005. The Government is considering making changes to that regime. As part of that process the House of Commons justice committee carried out post-legislative scrutiny of the Freedom of Information Act earlier this year. Part of my presentation today derives from the evidence I gave that committee.
The main areas of change reflect the keenness of our current Government to move to increased openness through the proactive publication of more official data setting freedom of information within a broader regime of openness and government transparency. Freedom of information is a reactive means of achieving that by providing information to members of the public when they ask for it. The Government is trying to promote a more proactive approach whereby public institutions publish information as a matter of course. New technology forms a principal means of making this work. Open data and transparency do not necessarily lead to accountability. We carried out research earlier this year to tackle that central issue and principle.
I will go through some of the principal findings from that research. I started by studying the stream of information and how the freedom of information provisions have been embedded in UK law and culture over the past five or ten years, and the wider context of transparency. The first thing that needs to be done is to establish some aims and objectives for transparency. Policy-makers often forget this on the assumption that transparency is inherently a good thing. In light of the need for open-space policy-making more generally, we need to think about why transparency is a good thing in order to be able to judge whether the measures we put in place to promote and develop it are working.
The constitution unit, which is part of University College London, took this approach when it carried out a very deep exercise in freedom of information in 2009. I fed off that to establish some principles on transparency across the board. I came up with four principal objectives, the first being to mitigate risk by opening up policy making. The idea is that by opening up the policy-making process the assumptions of decision-makers about the impact and development of policy can be constructively challenged and potential risks can be reflected more accurately, and that by bringing different perspectives into policy-making one makes law and policy more accurately. The second objective is increasingly important in the English and British contexts - that is, facilitating choice. Increasingly in the UK we talk about using data to make it easier for the public to exercise choice in public services. One of the principal areas in which this happening is the National Health Service. We now have a system whereby when general practitioners refer people for treatment, they can choose the hospitals at which they will be treated. The use of official information is important in ensuring that those people can exercise choice in an informed way. The third objective is one of the more traditional reasons for regarding transparency as a good thing - that is, control of expenditure. The idea is that publishing information adds value by coupling the publication of information with mechanisms for accountability, thereby minimising corruption. Measuring value may have an impact on decisions. Publication of financial and expenditure data can be used to establish whether a policy is generally achieving the ends it aims to achieve. The fourth objective is the most obvious one - that is, promoting democracy through easy access to data and information and encouraging participation. This is based on the idea that the public has a right to information about services provided on its behalf and about decisions made for it and by its elected representatives. Those are the four principal objectives.
The central point that I want to highlight from the research is the importance of culture, behaviour and values in making transparency work. Consideration of freedom of information in England focuses mainly on response rates and the amount of time and resources involved in responding to FOI requests, because they are free, as are data protection requests. There are two separate regimes in the UK, covered by separate Acts - one for official information and one for personal information. The focus has always been on the process. Consequently, many have viewed FOI as a compliance issue in respect of timescales, without thinking about why FOI and transparency are important. I am trying to get to the bottom of the culture of transparency, encouraging the idea that we should be publishing more information because by doing so we achieve some of the objectives that I have set out, making policies and decisions better, and recognising that the publication of official information is not necessarily a one-way street by encouraging the public to respond with its interpretation of that data and additional data of its own, some of which is anecdotal. By making the information fuller we make it more useful and effective. People need to recognise the value they can bring to decision-making more generally. That cultural and attitudinal aspect of transparency is often forgotten.
I want to make a couple of points about issues that have come up in England with regard to criticisms of open data and the FOI regime. The first involves context. Often there are criticisms of FOI and measures to increase transparency more generally because it is felt that information is released without context and therefore people cannot effectively understand what data means. In certain circumstances, that is quite correct.
The issue is understanding that context is not just about requiring public servants to provide reams of explanatory data around official information, which of course is an additional resource requirement for them, it is about understanding that the public at large and official institutions can and should link data together to provide that context. An increasing trend around the open data movement in the UK is the idea that data from a range of institutions can and should be linked together to provide an accurate and comprehensive picture of how service is delivered in an area. Context can be dealt with in a way that is resource-neutral for public servants.
The second issue is the fact that publishing information is perceived to have a chilling effect on policy development, in particular at national level. The justice committee inquiring into this took evidence from a number of people who felt that freedom of information had had a chilling effect on the willingness of civil servants to provide accurate information to Ministers to allow them make decisions. The idea was that poor decisions were being produced because civil servants might not, for some reason, want to produce frank advice which they felt if published later might embarrass Ministers. Although this opinion has been expressed by many on this side of the water, it is not supported by the evidence and was not an argument accepted by the justice committee. I am not sure if this is a concern or issue in Ireland but it is an issue that reflects the cultural challenge of transparency rather than structural issues around risks of transparency hindering effective policy developments. This is not to suggest that there should not be a safe space for policy development that can happen in private, but that space should be quite small. Perhaps I should pause as this point.
Thank you, Mr. Hammond. Before inviting members of the committee to put their questions I would like to raise three particular issues.
First, the committee is currently developing a proposal in the context of freedom of information which will take into account administrative aspects of the police force. Has a similar approach been taken in the United Kingdom and how has that worked out? Second, what would be the impact of further application of the Freedom of Information Act to semi-State companies, in the context in particular of competitor companies which are privately owned being able to acquire data that would be commercially sensitive to a semi-State company? The third issue was raised by a member of the committee during its earlier discussion, namely, regulatory bodies, in particular airports and energy companies, which have acquired a status that allows them to make decisions that cause serious damage to customers. It appears these bodies are operating in a secret world and the relevant peer Departments have long since given up trying to control them. This phenomenon is, according to the member concerned, referred to as regulatory capture. How do we ensure that regulators are appropriately held to account through the Freedom of Information Act? Perhaps Mr. Hammond would offer his expertise and opinion on those issues.
Mr. Ed Hammond:
On policing, there are 43 police forces in England and Wales, all of which produce crime mapping data which allow people to interrogate information about crimes in their areas, including crime response and clear-up rates. The issue with this is also one of context. It is interesting that 18 months ago, when crime mapping were first published in England and Wales, there was an initial flurry of interest in it, in terms of people inquiring about crimes committed in their areas and so on. However, public interest has dropped off dramatically since then because the information provided gives only a limited picture of services in local areas. This comes back again to the issue of context and ensuring that the information provided is linked to other data which tell more about issues around crime across the whole public sector landscape, including community safety, crime prevention, probation and the justice system. That is a complex issue.
In terms of wider policing performance, it has been usual for some time for policing performance issues to be discussed in public. Up to recently, policing in England and Wales was controlled by police authorities, which were bodies on which local authority members sat. They met in public to examine issues such as police performance and published findings and reports. They also scrutinised the police service and priorities. That system has since changed to one of elected police and crime commissioners, the purpose of which is to improve accountability and transparency. This highlights the issue that many of the transparency and open data issues in policing sit outside of the FOI regime. I am not aware in detail of the particular ways in which police forces respond to and deal with FOI requests. While they are subject in general terms to FOI, in many instances freedom of information requests on specific issues are not responded to, including on operational policing in respect of which the release of information would result in individuals being identified, which information is protected by the data protection regime. FOI requests to the police forces are limited to strategic and tactical information about policing rather than specific or operational issues.
On the question of freedom of information and commercial sensitivity-confidentiality, this is a significant issue which has been raised in this country in the past few years as more and more services hitherto delivered by local authorities or other public institutions and have been contracted out to private companies. The question that arises is whether those firms should be subject to FOI. The conclusion is that they should not be. There was a proposal that revisions would be made to the FOI regime to make such organisations subject to FOI in this country. However, the perception is that the Government is pulling back from this approach. It tends to be the case that contracts between public bodies and private sector companies include provisions around transparency, openness and accountability. By definition, and because there is no nationally accepted scheme for doing this, those arrangements end up being quite ad hoc. This means one must rely on the contract management of those regimes and systems to ensure that information gets out, which sometimes happens and other times does not. It is a challenge. The argument being made about commercial confidentiality being an enormous barrier to FOI is not well made. There are ways and means of preserving commercial confidentiality around procurement and tendering processes, where confidentiality is required. The issue that arises is separating that from service delivery, where there is no justification for commercial confidentiality other than in very limited circumstances. There should be an expectation from private sector organisations providing a public service that they should be held to the standards of transparency and accountability demanded of public services which historically would have delivered those services.
The third point concerned the role of regulatory bodies. In this country we deal with that in a slightly formal way as, in part, Departments produce what are called accountability system statements. They have been produced for a time. The permanent secretary, or senior civil servant, in each Department is required to produce a statement setting out where accountability sits within that Department, with the different regulatory bodies and quangos or quasi-autonomous non-governmental organisations and executive agencies that sit under the Department. It is identifying where accountability and responsibilities lie while ensuring there is a system of exerting control over those bodies. The Government has been quite aggressively seeking to take much more control of the work which hitherto was carried out by regulatory bodies and executive agencies, which continue to have in some instances a significant amount of freedom. In many cases those responsibilities have been taken back into parent Departments, whereas in some instances the body has been abolished entirely, and the responsibilities simply are not carried out any more.
In more general terms, there is a certain reliance on those regulatory bodies adopting a transparent and open approach. There has been much flux in the past couple of years in what regulatory bodies are responsible for, how they work, who sits on boards and how they publish information. The British Government has been pushing for regulators and inspectors to be much more open about the way in which they operate, and we are beginning to see that happen more now through the likes of Ministers exerting direct control, agreements around funding and political influence. We are still in a state of flux but those issues highlighted have been identified as a concern, particularly bodies not having effective oversight. The systems I mentioned have been implemented and strengthened in trying to make this oversight more effective.
I appreciate Mr. Hammond speaking to us today and I would like some observations on one or two specific points. Will the witness comment on fees? Currently, there is no fee attached if people make a request for their own information. There is a fee for non-personal information, with an additional fee charged by some Government bodies where it is felt there is a substantial cost for providing the information. That is called a retrieval fee. Does Mr. Hammond have a comment on those issues or an indication of the level of fees applying for a freedom of information request?
Has the use of freedom of information risen or fallen in recent years with more availability of information through modern technology? Even organisations under the freedom of information umbrella in Ireland have a number of exemptions, and there may be a similar process in Britain. In various pieces of legislation, certain items are exempt from disclosure even as people assume that everything in a Department is subject to the freedom of information process. When new bodies or state organisations or boards are formulated in England, do they come under the freedom of information umbrella from their initiation? The policy in Ireland has been not to burden a new organisation with freedom of information responsibilities and to let them bed in for a year or two before reviewing the position. That may be a decade later. Is there a general view on that issue?
Mr. Ed Hammond:
There has never been a fee regime in Britain for freedom of information requests, and they have been free on demand since the outset, regardless of cost. The British Government was toying with the idea of introducing fees and the justice committee investigation came out relatively strongly against that as an approach. As one would expect, many witnesses were against the idea. Interestingly, there is something of a movement for fees from central Departments and less so from local government, which may be surprising. There is not a significant impetus for introducing fees, partially because the benefits are marginal. The argument is that with the amount it costs to establish a system of fees and to collect fees, as the amount charged to individuals is so low, it would not be especially cost-effective to do so. There may be different evidence in Ireland but as we have never had a fee system here, the basis is mainly on guess work. That is the assumption being followed anyway.
The idea against fees is more philosophical rather than anything else. The argument is that this data is public and the justification for a fees regime is difficult to support. Arguably, the fee may be to cut the cost but part of the duty of a public body or organisation should be to respond to requests for information from the public, recognising that the public has a stake in that organisation as citizens. This is ultimately about the relationship between citizens and states and not having a fees regime in place encourages people to use freedom of information to find out more about services that they may wish to know about and there is no cap arising because only people with significant resources might be prepared to make a freedom of information request. It could be claimed that such a cap puts power into the hands of people with more economic advantages.
There have not been any enormous trends up or down in the use of the freedom of information process. Use has consistently been relatively high since the freedom of information process began in 2005. There are still issues with vexatious and persistent requests to some public bodies and there is still the matter of the press using freedom of information for "fishing" exercises. As there is no charges regime, the press can submit freedom of information requests to every local authority in the country to query an issue, hoping that something newsworthy will come from the information. That is part of the price to be paid for having a democracy.
Volume is significant and some people in Britain have raised concerns about the volume of freedom of information requests. The way to get around this is to publish more information proactively, and the more this is done in a useful and intelligent way, the less people will automatically need to approach freedom of information as the first means of acquiring information about how a public body operates. Councils and other institutions public much information about themselves proactively but often it is not very easily understood by people and can be difficult to access. The ease of access problem is one of the reasons freedom of information is well used, and as we move to a more intelligent approach to open data, I hope people's need to revert to freedom of information requests as a default will reduce. That may be idealistic.
There are two principal forms of exception under the Freedom of Information Act here. There are absolute exceptions for national security and there are also qualified exceptions. A public body must carry out a public interest test to establish whether information should be released when it could be covered by a qualified exception.
There has been much debate about that public interest test. There is no official definition provided for what public interest is, although the Information Commissioner has published a guidance on the public interest test and how it should operate. It sets out the basic principles that would constitute the public interest, which I believe still stand. In a guidance produced in 2007 the Information Commissioner listed a number of public interest factors, which included furthering the understanding of and participation in the public debate on issues of the day, promoting accountability and transparency, promoting accountability and transparency in spending and those types of general issues. That is what we talk about when we refer to the public interest. The public interest test should be interpreted quite broadly. Decision makers have to recognise that this is about public interest with a presumption that openness is better than non-disclosure, rather than public interest being the same as what is the interest of the organisation itself. The two do not necessarily coincide. How the public interest test operates has been one of the principal issues surrounding appeals to the Information Commissioner. I know there is a similar regime operating in Ireland's current and proposed freedom of information, FOI, system.
The fourth question was about using FOI from the inception and creation of new public bodies. That is an interesting point. It is not one that has been raised. We just make the assumption generally that when those bodies are established they will immediately be subject to freedom of information. It is part of the governing systems that one would expect a new public body to establish from the first day. One is establishing decision making systems, ways to deliver services on the ground, one is setting up the internal management processes and as part of that one sets up the FOI processes. As a case in point, from 1 April next there will be an entirely new structure for heart services operating in England. A new range of different health bodies will be established, with an odd one to be abolished. From 1 April those new bodies will be subject to FOI. I do not believe anybody has ever suggested or proposed that there be some type of lead-in. It is an interesting idea, but if one wants to have FOI and transparency as integral to the way that organisations make decisions, it is quite difficult to say that one must have all the other systems set up from the first day because they are business critical but FOI is a bit on the side or an extra thing which is not quite so important. It sends the wrong message.
I thank Mr. Hammond. I have learned a great deal from what he said. Am I to understand that, broadly speaking, Mr. Hammond thinks the FOI system operating in the UK at present is quite good?
Mr. Ed Hammond:
Yes. The general consensus is that it works quite well, all things considered. There is dissent from a number of people. Famously, Tony Blair said in his memoir the one decision that he most regretted about his time as Prime Minister was introducing the Freedom of Information Act, which is interesting.
Mr. Ed Hammond:
That was many people's response. There was a small number of dissenting voices. The former Cabinet Secretary, Sir Gus O'Donnell, the senior pre-eminent civil servant in the country has cast some aspersions on the Freedom of Information Act. He made the point that I mentioned earlier about the chilling effects and the problems he thought it could have. Again, one could be charitable about that and say that looking at a government from the inside, as he does, he will see the shortcomings that perhaps freedom of information has in terms of speed in decision making and the fact that it can throw spanners in the works. Equally, one can could say that could be an example of somebody who is not signed up generally to the principles of transparency and does not really understand what transparency as a broader concept can bring to decision making, but instead looks at FOI purely as a procedural issue whereby people are sending in requests, those requests must be processed and it is additional work. It is FOI sitting in a separate box which will stop what one must do. One is not using the benefit and the lessons one learns through that process to influence one's wider work. One is treating it as an essentially transactional exercise.
I accept that point. What the witness said about Tony Blair inclines me to say that we should adopt the UK model lock, stock and barrel. Mr. Hammond is very much in favour of freedom of information, more transparency and more accountability and he says the model in the UK is generally quite good. Will he indicate a few areas where he believes it could be improved even further? Mr. Hammond appeared to hint in that direction. He said a key aspect was not just being reactive or having a system that is reactive but having one that is proactive, which is about getting good information published and getting it out to the public in an accessible and understandable form for ordinary people. I agree with that. However, Mr. Hammond also spoke about opening up the decision making process. I thoroughly agree with him. Part of the reason people are often so alienated from state administration is that they feel decisions were made before they had a chance to scrutinise them or to be consulted on them. Will Mr. Hammond speak about how that works and how opening up the consultation process is or is not working in the UK, where it might be improved and what we could learn from his experience and views on that?
I also have a question on the issue of commercial sensitivity. Mr. Hammond dismissed the concerns in that area. In Ireland, I believe there is a widespread concern about the difficulty in getting information from semi-State bodies, State agencies and State boards and in cases where services are contracted out. Mr. Hammond appeared to think that was not a big issue. It is certainly a big concern for us. It is not just State agencies. We also had a discussion here about bodies that receive substantial money from the Exchequer, such as not-for-profit organisations or banks that are private entities but which have received huge amounts of money from the taxpayer, and whether freedom of information should extend to them and having transparency and accountability in that regard.
There is also the asylum, immigration and deportation process. We have received testimony from asylum seekers and organisations representing refugees that there is a veil of secrecy around this area, it is very difficult to get information and that we must be specific in opening up this area. Will Mr. Hammond comment on that?
Finally, there is the issue of fees. Mr. Hammond said that the vexatious complaints, the costs and so forth have been raised in the UK. This has certainly been raised over here. Will he give us a little more information on why this should not be an obstacle to extending freedom of information as far as possible? Even though vexatious requests are obviously a phenomenon, it is not such a burden that it makes public administration unworkable. Is that what I should take from what Mr. Hammond said?
Mr. Ed Hammond:
Yes. On the question of improvements, one matter that is often raised is the fact that the Act requires public bodies to produce what is called a publication scheme setting out what documents and other items they publish as a matter of course. I do not think the publication scheme has worked as anticipated. Organisations do not regularly update their publication schemes in some instances. I suspect that many have not updated them since 2005.
The creation of publication schemes is a slightly formalised process. As it is a separate requirement for organisations, it is something they do not necessarily take seriously. Many freedom of information requests to public bodies can often be requests for information already covered under the publication scheme. This suggests the publication scheme is not automatically the first port of call. The principal improvement to the structure would be revisiting the publication scheme to use it to divert run of the mill requests to reduce the burden on public bodies.
The question of how we do this is probably slightly above my pay grade. It is a difficult issue and there is a public education aspect to it. There is also an issue about prior activity which leads on to the second improvement. The most significant improvement would involve a process that is less structured. It is about getting public servants and elected officials to realise that freedom of information legislation sits as part of a wider landscape of transparency and accountability. When there is that understanding, one will get more people taking a slightly more nuanced approach to freedom of information requests, seeing it less of a bureaucratic burden and understanding the issues the public might have with given services and requests. This would mean freedom of information requests would be used to influence decisions made in the future and how information is published.
Much of the work has been about publishing data and information in an ad hocway. An example is the requirement imposed on local authorities in England to publish all expenditure information on any budget lines above £500. On the face of it, it looks like a robust means of ensuring local accountability and transparency. However, it is not because all that happens is that the local authorities publish big spreadsheets every month which set out the amounts spent on various items but tell nothing more about the services provided or their impact. That information given in isolation is worse than useless because it encourages us to be complacent, thinking that because the information is published we are, therefore, transparent when that is not the case. It is about culture. Opening up is as much about linking data as it is about publishing more data. There is a lot of data, but the challenge is about linking it to make it more useful and highlight interesting conclusions.
On the point about commercial sensitivity, I accept that there will be parts of relationships between public and private bodies where commercial sensitivity will need to be maintained. One will still need that privacy to allow the formal exercise around negotiations to happen. I understand why private bodies would not want that kind of information published because there are issues to do with intellectual property, competitive bids and ensuring value for money. If one is publishing all bids for services, it will mean the market will be skewed. The market can only be affected in that context if one has a sealed and closed process. However, there are other opportunities beyond to open up the process. There can be full transparency in contracting. It is not unusual any more for this not to happen. As a matter of course, public bodies will publish contract-monitoring information. This comes back to my idea of ensuring control of management accountability for decisions reached. People at the top of public bodies want to ensure services delivered by contractors are delivered effectively. They will want to draw that information into themselves and, as a matter of course, when they hold it themselves, it can be subject to freedom of information legislation.
Unfortunately, the point about asylum is somewhat beyond my purview. I do not feel confident to deal with it, other than I will reiterate some of my points on policing around the publication of strategic information on deportations, asylum cases and backlogs. We have had issues in the United Kingdom about lengthy waiting times in dealing with asylum cases. However, I do not know enough about the issue to comment on it.
On fees and vexatious requests, the issue is understanding what makes a vexatious request vexatious. We should not be conflating a vexatious request with one that is a little difficult, annoying, embarrassing or persistent. For example, one cannot have a vexatious requester. The Commons justice committee examined how someone who made a lot of freedom of application requests could be classified as a vexatious requester. That is a point we strongly argue against. Just because someone makes a lot of requests does not necessarily mean they are not valid or valuable. Just because a person may have made a vexatious request once before does not mean future requests will be vexatious. The example of a vexatious request often given here is the freedom of information request to all councils from a newspaper asking how much they spent on biscuits. On the face of it, one can say it is a vexatious request, clearly designed as a stupid request to take up time and effort. However, there is also a valid request about expenditure on hospitality services. Vexatious is a high bar. One has to look at it from the requester's point of view. There is a need for this information. It is about a presumption in favour of openness. That is one of the benefits of the information regime. The information commissioner has been quite forthright for several years in appeals and introduced a high bar for determining what is a vexatious request. There is no evidence to suggest public bodies will be overwhelmed by a colossal number of vexatious requests. There will be requests that will be annoying, difficult and embarrassing. However, that is not vexatious.
I would like to wrap up by returning to a couple of points. I found the latter part of Mr. Hammond's contribution very interesting. Representatives of the National Union of Journalists appeared before the committee earlier to discuss this module and had their own observations to make. It would be very much associated with a campaign to loosen up, or broaden, aspects of the Freedom of Information Act. One of the proposals at which we looked was the concept of a register user fee, in order that one could have accredited or non-accredited or associated or non-associated journalists who might be freelancers able to operate under one umbrella to engage with the freedom of information service.
To return to Mr. Hammond's biscuit comment, it must be acknowledged that, at times, the media engage with the Freedom of Information Act for commercial purposes. It is not always about extrapolating information and asking questions about how many biscuits have been bought in the borough of Manchester or Liverpool. It might make an interesting headline on the front page of a newspaper tomorrow morning, but is it really serving the public interest and should local authorities charge for finding the information?
Ultimately, as has been the case in Ireland, the paradox of the freedom of information debate among the media is if we were to drop all the barriers to allow the media to get information they want, it would create a strange environment because much exclusive commentary in print or broadcast media comes from freedom of information requests that allow journalists and newspapers to get the jump on one another.
There is a commercial aspect for the media. These are privately owned companies that compete with one another. That is not to say we should not open up more information but is there any acknowledgement of the commercial aspect of the Freedom of Information Act and how the media engages with it? There is a paradox that if information was more open, the sorts of exclusives newspapers got through FOI requests, or the silly season stuff that comes out in the middle of July when there is nothing else to write about, would not be covered.
What ethics apply to freedom of information? Is there any code of conduct? The phone hacking scandal in Britain has been in the news, where the media themselves were withholding information that the public had problems accessing.
Mr. Ed Hammond:
I completely accept the press will want to get hold of information for its own needs. The print media want to sell newspapers. There is an issue of journalists going on wide-ranging fishing exercises, although in my opinion it is over-played. It is difficult to see how to police a dual track regime because if we say a journalist should adopt a different process from a private individual, the obvious way around that is to make the FOI request as a private individual. The practical circumstances would make that practically unworkable.
Some have suggested press organisations pay a levy on the assumption they will make freedom of information requests but I do not see how that can be practically operated and how it would be possible to classify where an organisation should have to pay money for information and where it should not. One of the benefits of the British regime is the simplicity and because there are no charges, those tricky hard cases do not need to be decided because the system is blind to whomever is making the request. That is a fundamental principle of the Freedom of Information Act. It is irrelevant and it is frowned upon to ask why a person might want information. The fact the information is requested is the only thing that is relevant. Requestor blindness is one of the fundamental aspects of the British Act and that is jealously guarded. The ICO has produced some robust guidance on this.
It comes back to the philosophical issue I talked about earlier. These are public data that have been created and developed on behalf of the public using public money and therefore it should be produced in the public domain as far as possible. It is going to produce difficulties, and be arguably more expensive, for some public institutions to publish information on request in this way than would be the case if they did not do it. If it ultimately helped to make decision making more effective, however, and if it is coupled with effective accountability mechanisms, that is the critical factor. If it helps to open up participation in decision making and to achieve the objectives I set out at the beginning, it is worth it. It is about recognising the externalities and not looking at FOI requests as being a cost in a box somewhere. We must say that as public bodies, we are paying a cost to manage FOI requests but we get a benefit in terms of efficiency and effectiveness in being open and allowing people to work with us and co-produce public decisions and policy. By doing that, the decisions are more effective and offer more value for money.
It is a quid pro quo and the press are an integral part of that challenge. Some of the material they produce will be daft and borderline vexatious but much of their work is about genuine robust public challenge. By trying to mitigate the more frivolous stuff, there might be a risk of missing some of the more serious material. On balance, it is not worth the effort to develop a complicated regime to separate things out; that is the conclusion some of the British advocates have arrived at. I cannot speak for the ICO or other experts but I think that broadly accords with their views.
I thank Mr. Hammond for briefing us and for the lively discussion we had, which certainly added to our understanding. In case journalists are watching this afternoon, I understand the conference call did not cost any money and was certainly a lot cheaper than bringing Mr. Hammond over from London. There was no cost for this afternoon other than the usual expenses.