written evidence from equanomics uk
TRANSCRIPT
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 1/7
FOI 111 Written evidence from Equanomics UK
Introduction and overview
1. This submission is made in response to the Justice Select Committee’s request for evidence
for its
post
‐legislative
scrutiny
of
the
Freedom
of
Information
Act
2000
(FOIA).
2. This submission, from Equanomics UK1, is supported by leading organisations involved in
the promotion of race equality ‐ the Afiya Trust, Black Training Enterprise Group (BTEG), ,
Coalition Of Racial Justice (UK), Friends, Families and Travellers, Just West Yorkshire,
MENTER, Operation Black Vote (OBV), the Race Equality Foundation, Race on the Agenda
(ROTA), the Runnymede Trust and Voice4Change England. Equanomics‐UK and our
colleagues are members of a BME VCS Coalition2.
3. Evidence‐based policy making is crucial; therefore in our main submission we have:
a. summarised key ways in which our organisations and members have been
involved with the FOIA and briefly reflected on key recommendations from the
Stephen Lawrence Inquiry which have informed our evidence;
b. commented on the conclusions set out on pages 62 and 63 at paragraphs 219 –
224 of the Memorandum to the Justice Select Committee3;
c. concluded our submission with summary comments on the three overarching
planks of this review ‐ the effectiveness of the FOIA, its strengths and
weaknesses and whether the Act is operating as intended.
Executive summary
4. As race equality focused Voluntary and Community Sector (VCS) organisations, we share the
Government’s belief that accountability and transparency are at the heart of effective
government. We
also
draw
on,
and
recognise
the
continuing
importance
of,
our
collective
experiences of racial discrimination, racial inequalities and the recommendations of the
Stephen Lawrence Inquiry on the importance of freedom of information legislation,
openness, trust, accountability and access to information.
5. As organisations, we have considered, advised on and used a range of tools to ensure that
public accountability and transparency are a reality rather than simply rhetoric. We view
the FOIA as an essential, although not perfect, tool for those interested in shining a light on
public bodies and holding them to account. We would therefore be concerned about the
introduction of any steps that might further restrict or limit the ability of individuals or
organisations to use the FOIA’s provisions.
1 Equanomics‐UK addresses race equality in the UK from an economic perspective. It is a broad based coalition of
individual activists and voluntary and community based organisations. It seeks to build awareness of the impact of
poverty on BAME communities and develop appropriate action. 2 The BME VCS Coalition brings together existing national, regional organisations and other founder members to
fulfil our shared objectives to challenge racism by strengthening and supporting what we already do to influence
public policy, the media and key decision makers. 3 Cm 8236 presented to Parliament by the Lord Chancellor and the Secretary of State for Justice: December 2011
Page 1 of 7
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 2/7
FOI 111 6. We believe that introducing new fees or extending the ability of public bodies to issue fees
would: a) reduce the opportunity for individuals and VCS organisations to use the provisions
of the FOIA to secure information; b) have a chilling effect on the ability of individuals and
organisations to use FOIA; and c) undermine public accountability. If a balance must be
struck, the balance should favour promoting public accountability, confidence and trust by
facilitating access
to
information.
7. We welcome the Government’s proposals in relation to making information routinely
available and providing information in formats that are reusable4.
8. We welcome proposals, by FOIWiki, for improving the FOIA and would hope that the
Committee will give due consideration to these detailed recommendations (see
http://foiwiki.com/foiwiki/index.php/Changes_we_would_like_made_to_FOI_law).
The Government’s commitment to greater transparency and openness throughout the public
sector, our collective experience of FOIA and the importance of the recommendations of the
Stephen Lawrence Inquiry
9. We support the assertion by the Prime Minister5 that ‘Greater transparency across
Government is at the heart of our shared commitment to enable the public to hold politicians and public bodies to account.’ We also welcome the assertion in the
Memorandum that: ‘the Government is committed to greater transparency and openness throughout the public sector’ and that ‘Freedom of information remains a vital element of the transparency agenda and has been instrumental in the release of a great deal of information which might otherwise have remained closed (para 219).’
10. As BME VCS organisations, committed to the promotion of equality, we have considered,
advised on and used a range of opportunities available to ensure that accountability and
transparency in public affairs and we consider the FOIA to be a key tool.
11. In addition
to
using
the
FOIA
to
make
direct
requests
to
public
bodies
including
government
departments, local authorities and universities, other FOIA related activities include:
a. reviewing and drawing on the recommendations of the Stephen Lawrence
Inquiry in relation to trust, information and freedom of information;
b. providing advice and information on how to use the FOIA in conjunction with
other legislation including the Equality Act 2010 and the public sector equality
duties (e.g. Equanomics‐UK, ROTA, Voice4Change England);
c. providing training to staff and/or other organisations on how to use the
provisions of the FOIA to promote race equality (e.g. the Afiya Trust, ROTA6,
Voice4Change England7).
12. The
recent
high
profile
court
case
of
two
of
the
murderers
of
Stephen
Lawrence
has
caused
many to reflect back on the analysis and recommendations of the Stephen Lawrence
4 Protection of Freedoms Bill (HL Bill 121) clauses 102 and 103
5 ‘ [David Cameron, May 2010] http://www.number10.gov.uk/news/letter‐to‐government‐departments‐on‐
opening‐up‐data/) 6 Training programmes for VCS organisations on the public sector equality duties and the FOIA. 7 Public law and Compact training workshops for the VCS.
Page 2 of 7
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 3/7
FOI 111 Inquiry. We believe that the Inquiry’s recommendations on ‘openness, accountability and the restoration of confidence’ are no less relevant now than they were in 1999.
13. The Stephen Lawrence Inquiry highlighted the need to “increase trust and confidence in policing amongst minority ethnic communities” and specifically recommended that ‘a freedom of information act should apply to all areas of policing, both operational and administrative, subject only to the "substantial harm" test for withholding disclosure’
8
.
14. Although the Inquiry’s recommendations were made in relation to policing, we believe that
openness, accountability and maintaining and/or restoring confidence of BME communities
in public bodies is important across the board; improving access to information and the
operation of the FOIA can make key contributions to promoting trust and accountability.
15. We would ask the Committee to explore whether any amendments should be made to the
existing FOIA exemptions to better address the recommendations made by Sir William
Macpherson in 19999.
The increasing use of FOIA by campaigners, individuals and organisations, particularly voluntary
and community organisations
16. Our experience is that whilst some VCS organisations are making increasing use of the FOIA
many others have a limited understanding of the FOIA and how to make FOIA requests. Our
training and associated work, suggest that in the future increasing numbers of VCS
organisations can be expected to make growing use of the FOIA request process.
17. We would argue that the increasing costs for public bodies associated with complying with
FOIA, referred to in paras 220 and 221 of the Memorandum’s conclusions: a) are in part a
natural consequence of greater use by individuals and organisations of the FOIA; and b) may
in part reflect a failure by some public bodies to properly consider how best to really
embrace a commitment to openness, public accountability and transparency and adapt
their systems
to
address
this
commitment.
18. The Memorandum reflects on a MoJ study (para. 216) and suggests that the study found
that in some limited cases ‘some people were recording less information and that internal communications had become less detailed and informative than before FOIA.’ The report
also comments that ‘there is an important balance to be struck in enhancing transparency while protecting the necessary space in which policy options need to be discussed and decisions taken. The difficulty in appropriately striking that balance remains a concern and is worthy of consideration (para. 218).’ Since there are clear FOIA public interest exemptions
and a wide range of other FOIA exemptions10, there is no reason why the FOIA provisions
should limit the information that should be minuted. Perhaps the flaw in the
Memorandum’s
analysis,
is
the
failure
to
recognise
that
some
public
bodies
may
be
concerned that FOIA requests may uncover flaws/failures in decision‐making. The
suggestion that some public bodies may simply fail to record information/decision‐making
8 Recommendations 1 and 2 (page 327): The Stephen Lawrence Inquiry, report of an Inquiry by Sir William
Macpherson of Cluny. Please note that the 1999 report predated the subsequent FOIA 2000. 9 The recommendations (chapter 47), especially recommendations 9, 10 and 17: The Stephen Lawrence Inquiry,
report of an Inquiry by Sir William Macpherson of Cluny. 10
The FOIA 2000, Part II section 21 – section 44
Page 3 of 7
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 4/7
FOI 111 in any detail because of the FOIA is therefore lamentable. We believe that inadequate
recording of decisions is inconsistent with proper decision‐making, the public interest and
promoting public accountability and trust. We would ask the Committee to consider this
issue, as well as the examples of good or best practice highlighted in Memorandum.
19. We have concerns about the range of public bodies covered by the FOIA and the impact of
the Health
and
Social
Care
(H&SC)
Bill
and
other
legislative
reforms
that
may
result
in
services being ‘contracted out’ for want of a better term. We welcome the provisions in the
Protection of Freedoms Bill, in relation to providing a wider definition of publicly owned
companies, however we hope that the Committee will consider:
a. does this definition of publicly owned companies go far enough?
b. amendments to ensure that where services, activities or functions are
contracted out under the H&SC Bill or other similar legislation, that public bodies
responsible for monitoring such contracts and contractors:
i. should secure a suitable range of information on the performance of
those bodies in relation to the public contract where the contractor is not
directly subject to the Freedom of Information Act 200011;
ii. should ensure that contractors maintain relevant information;
c. amendments to ensure that where services, activities or functions are
contracted out under the H&SC Bill or other similar legislation, that the ICO and
the relevant Tribunal:
i. can consider complaints about a public body not holding or requiring a
relevant contractor or organisation to hold relevant information about
the performance of the contract, service or activity where the public
body would have been expected to hold such information and holding
and/or disclosing such information would be in the public interest;
ii. can require a public body to start to secure such information as is in the
public interest.
Key issues time‐limits and public interest tests and internal reviews12
20. The current time limit for responding to requests for information is 20 working days; we
support the proposal that the time limit for internal reviews should also be set at 20
working days. We also support the proposal that the time limit for dealing with FOIA
requests including a public interest test13
should also be set at 20 days as we believe is
already the case under equivalent legislation in Scotland.
Costs
associated
with
the
FOIA
and
striking
the
right
balance
between
transparency
and
reducing regulatory burdens
11 For example by virtue of the fact that it is not a public body or a publicly owned company.
12 http://foiwiki.com/foiwiki/index.php/Changes_we_would_like_made_to_FOI_law
13 At present there is no fixed time limit in law for carrying out public interest tests. This means that in practice a
public authority must respond in full to an FOI request within twenty days except where a public interest test is
being considered in which case we understand that there is no fixed time limit for responding to the request.
Page 4 of 7
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 5/7
FOI 111 21. We would be profoundly concerned about the introduction of any further fees. A practical
example of our concerns is provided by the recent work by the Afiya Trust. In November
2011, the Afiya Trust wrote to all directors Adult Social Care Services in England. The aim
was to seek information, using the FOIA, to establish the impact of the cuts over 2010/2011
and 2011/12 on BME led organisations, other providers of services to BME communities and
BME communities
14
.
22. To their credit none of the 155 local authorities concerned sought to charge. However if a
modest charge had been made by each local authority, of even £100, the cost to Afiya
would have been £15, 500, a bill that a small charity simply could not afford.
23. We believe that extending the use of fees or increasing fees is inconsistent with provisions
that are designed to promote greater access to information and transparency. If there is a
decision to introduce fees, we believe that there should be a general waiver of any fees for
charities, individuals and VCS organisations. We also believe that newspapers have often
shone a light on public affairs and should not, as a matter of principle, be charged where
there is a public interest.
Specific concerns about the FOIA’s operation including the complaints and appeals process and
the role of the ICO
24. We have very little direct experience of using the ICO complaints and appeals process. The
Runnymede Trust has complained, once, to the ICO about a leading university’s refusal to
provide the full data on the number of applications from, and offers to, British Black
students. The grounds for refusal, upheld by the ICO, were that the numbers are small that
individuals could possibly be identified by disclosing the information. The Trust accepted
that the numbers are small and although it disagreed with outcome, it felt that the process
was fair and worked efficiently.
Final comments – the effectiveness, strengths and weaknesses of the FOIA and whether it is
operating as intended
25. We have drawn on Blackstone's 4th
Guide to the Freedom of Information Act published in
2011. This Guide identifies that the rationale for introducing freedom of information
legislation included:
a. improvement of democratic processes; b. avoiding the need for whistleblowing and leaks;
c. improving the efficiency of government and the effective use of public money;
d. commercial
use
of
relevant
information.
26. For the BME VCS Coalition, our primary concern is in relation to the first three areas ‐
improving democratic processes, reducing the need for whistleblowing and leaks and
improving the efficiency of government and the effective use of public money. We note the
analysis provided by the University College London, reported in the Blackstone’s Guide, that
14 The Afiya Trust designed the FOIA questions to elicit information that it believed that local authorities,
complying with their public sector equality duties, should hold.
Page 5 of 7
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 6/7
FOI 111 in: ‘ the United Kingdom, freedom of information has met its core objective of transparency and, in the correct circumstances, accountability. Yet it has not achieved the secondary objectives, the ‘wider transformative’ aims, that flow from them (page 10)15.’
27. A practical example of this transformative failure to really embrace public accountability can
be seen in the exchange between the DfE and the Whatdotheyknow website on 21/2/11
(http://www.whatdotheyknow.com/blog). The
DfE
wrote
in
the
following
terms:
a. ‘We changed the way that people contact our department last year, encouraging customers to go to our website to find what they are looking for and submit an enquiry via our contact us page (www.education.gov.uk/contactus) if they could not locate information.’
b. The [main FOI] mailbox that your system points to ([email]) will eventually be phased out and I would be grateful if you could advise customers using your website to refer to www.education.gov.uk/contactus if they need to contact the Department.’
28. Whilst is fine to offer people the option of using the DfE website, it is unacceptable to limit
people to using the website to submit FOIA requests. We share the views and concerns
expressed by Whatdotheyknow in response to the DfE and hope that the Committee will
note the comments and the importance of transparency in the FOIA process:
a. ‘We certainly agree that people should check whether the information they are looking for is already available before submitting a FOI request — and indeed we already prompt all users of WhatDoTheyKnow to do so, not just for the Department of Education, but for every public authority we list. When requests are submitted through WhatDoTheyKnow responses are automatically published ensuring a lot more information ends up online and publicly accessible than when submitted privately.
b. If the Department for Education wants to reduce the amount of correspondence it gets in relation to already published material it should be encouraging people to make their FOI requests via WhatDoTheyKnow. Already, based on Ministry of Justice statistics, we calculate around 10% of all Freedom of Information requests to the Department of Education are made via our service.
c. We have asked the department to let us know which alternative email address they would prefer us to forward FOI requests to, and we await their reply. We are happy to use whichever email address is easiest for a public body.
d. We have also made clear that we will continue to offer our users the ability to make requests to the Department of Education via our site and will not be removing that facility and directing people to the department’s contact form as we
were
asked.
Forms
often
include
unnecessary
mandatory
fields
that
the
FOI
legislation does not require (in the DfE’s case they ask what kind of a requester you are, making you specifically type in “prefer not to say” into an “Other” box if you want to opt out).
15 Ben Worthy, ‘More Open but Not More Trusted? The Effect of the Freedom of information Act 2000 on the
United Kingdom Central Government’ Governance 23 (4) p. 561
http://onlinelibrary.wiley.com/doi/10.1111/j.1468‐0491.2010.01498.x/abstract
Page 6 of 7
8/3/2019 Written Evidence From Equanomics UK
http://slidepdf.com/reader/full/written-evidence-from-equanomics-uk 7/7
FOI 111
Page 7 of 7
e. The law rejects the idea that public bodies are allowed to erect artificial barriers like this, and we have noted that a FOI request is valid regardless of which email address or member of staff within an organisation it is sent to.’
February 2012