Politicians are rarely fans of the Freedom of Information Act. You don’t have to go far to find Tony Blair’s ‘nincompoop’ comments, David Cameron’s furring up the arteries of government moan, or Jack Straw complaining it gives the UK public more access to documents than other jurisdictions (it doesn’t).
Politicians, public authorities, and those that had been embarrassed by information released all queued up to tell the Justice Select Committee how much of a burden the Act was in a 2012 review. A selection of journalists, FOI campaigners, NGOs and more stood up to defend the right to access information and push for more access at the same time.
The government responded to the review with concerns about journalists and campaign groups making “industrial” use of requests, stating a need to reduce the cost of the FOI Act and deal with “disproportionate burdens” it causes. In return campaign groups wrote to Cameron saying changes would damage everyone who wanted to ask questions.
But since theses conclusions were reached there has been little movement on implementing any changes.
There may be an issue with dealing with expensive costs of redaction
That was until earlier this year Liberal Democrat MP and justice minister Simon Hughes stood up in Parliament and said there would be two consultations to take place with a view to changing the Act.
A few months down the line and Hughes has now said these consultations have been rolled in to one that will broadly look at two areas.
In what could be a bitter sweet pill for the public’s right to access information, more bodies will be introduced in to the scope of the Act, but at the same time how much can be obtained is likely to be reduced.
And, the consultation may be over in the blink of an eye. It is possible, and likely, that due to the limited time before the General Election, the consultation may only last a month, Hughes hinted. Cabinet Office guidelines say that consultations can last from anywhere between two and 12 weeks, although where an issue has been discussed before it may be appropriate to have a shorter consolation.
Hughes said: “If we’re going to have a consultation that is sufficient and doesn’t cause people grief and doesn’t cause people to complain then it is ideally not going to be just four weeks, but on the other hand if we’re going to make progress before the end of this Parliament that I hope it will be not so long that as it were we ran out of rode the other side of the consultation.”
When challenged on whether the proposals could be detrimental to those making requests Hughes said he would not want “to do anything that pulls back.”
He would not candidly express what was fully to be included in the consultation, as he stressed the final proposals had not yet been signed-off.
But he could reveal some details about what would be included: “There are some things set out in the previous consultation, there was something about serial requesters, there’s something about reading and other costs.”
He also added “… there may be an issue with dealing with expensive costs of redaction, so there are some small but administrative matters that people have raised with us.”
The ones he has mentioned, unsurprisingly, mimc the proposals behind the original 2012 review and also the government’s response to it.
The Government response to the 2012 review said (paragraph 15): “The Government is minded to explore options for providing that time taken to consider and redact information can be included in reaching the cost limit.”
The “small but administrative” matters are ones that would limit the ability to prise information out of authorities. They would allow obtrusive authorities to apply skill based considerations as to whether information should be released – including how long it takes an official to redact (black-out) certain parts of a document could lead to abuse.
Redaction time cannot easily be measured. A highly-computer literate staff member may be able to complete the task incredibly quickly but a staff member who is not efficient at redacting may take long enough to redact the information so that it cannot be released.
Another area of the consultation will look at the Ministry of Justice’s Code of Practice, which governs, among other things, how an authority should provide help to those seeking information. The Code has not been updated since the Act came in to implementation in 2005 and may be updated to include guidelines on matters such as how long a public interest test undertaken by the authority should take (paragrpah 35).
The Conservatives, in 2010, proposed to make the Act span to more bodies, this has been echoed by Labour in recent years.
There’s no good consulting on things that to be honest we couldn’t even come to a conclusion about at the time
Lib Dem Hughes has voiced these proposals for the Act to cover more authorities that operate from public money. But, he has not just talked about increasing it. The junior coalition government partner has made Network Rail to be subject to the Act following its re-classification. A battle, he says, that was fought all the way up to Number 10.
His plans go further than the rail body as he says he wants to get more organisations covered by the Act.
He said: “They may not be the biggest fish in the sea but my list here says approved regulators, Advertising Standards Authority, Housing Ombudsman, bodies like that, which are clearly ones that I don’t think anyone can have any real objection to being included.”
Ambitiously, he also wants to try and include the ‘big six’ energy firms in the Act – but it is unlikely this will happen.
There is undoubtedly a willingness for Hughes and the Lib Dems to try and improve the FOI Act and as he told the BBC his attitudes haven’t changed since he became a minister. One of his Liberal colleagues introduced a bill that looks to increase the power of the Act for requesters.
However, the potential changes all come down to what the government can achieve before the election and the attitude of the other government partners. And, in terms of progressing the Act, what a minority party in a coalition government is able to achieve.
It seems unlikely that any move to increase the number of authorities covered by FOI can be made without changes that would be detrimental to the requests that are being made. The combined consultation gives the feeling there is a trade-off, where the political views do not align.
“Where we are up to is that that’s not yet gone out for consultation, there’s still further negotiations going on to exactly what the balance of that is and how much can go in to the consultation, given where we are in the political cycle. There’s no good consulting on things that to be honest we couldn’t even come to a conclusion about at the time, but I am keen to make as much progress as possible,” Hughes said.
There’s still further negotiations going on to exactly what the balance of that is and how much can go in to the consultation
To apply larger changes to the Act primary legislation would be needed, which is not at all achievable before the 2015 election. Changes to the Code, and adding some bodies, would not need primary legislation. The latter of the two could be added by the powers given to Hughes under Section 5 of the legislation.
But the consultations will look to set-up a position that can easily be built on by whoever takes control of Downing street next year.
“If I can take things forward for a state of readiness, certainly have the consultations and we know what the general views are, on things like Housing Associations, the water companies and so on, then the incoming administration… whoever that is, [we will] try and leave that teed up for whoever comes in to the department,” Hughes said.
One of the best hopes of limiting detrimental changes is that the bureaucratic process may be typically long and cumbersome, and does not allow for a consultation before the May vote. And after may a government comprised of Labour or Liberal Democrats (possibly both at once) is likely to be the best make-up for the established.
Whatever happens the move to change FOI is underway and when the consultation is announced (it is more a matter of when, rather than if) those who are interested in the rights that the Freedom of Information Act allows should be willing to contribute to the discussion – no matter which side of the fence they are on.
(Full disclaimer: The interview with Simon Hughes for this piece took place on 8th September 2014).