written evidence from greg muttitt

8/3/2019 Written Evidence From Greg Muttitt

1/8

FOI 103Written evidence from Greg Muttitt

Executive summary

1. The Freedom of Information Act 2000 (FOIA) has become an important elementof our democracy, and is working well in making government more accountable.2. However there are four respects in which FOIA is not working effectively:

I have experienced considerable delays, primarily in the conduct of publicinterest balancing tests and internal reviews. There is a case for amending

FOIA to introduce time limits in these areas.

There remains a culture of secrecy within public authorities, manifested infoot-dragging or evasion with many requests. The Information

Commissioners Office (ICO) and Information Rights Tribunal (IRT)

therefore play a vital role in delivering the publics rights to information. There is an inherent structural flaw in FOIA, in that a reticent public

authority has no incentive to release information, and every incentive to

refuse, as it can always release at a later date if forced to do so. The biggestpotential shift to the culture and practice of government openness would be

brought about by meaningful penalties for public authorities that violate

FOIA.

Public authorities routinely fail or refuse to give meaningful advice orassistance under 16 of FOIA, offering instead unhelpful generalisations.

3. The UKs FOIA has two particular strengths: That complaints and appeals are heard by the ICO and IRT rather than by

courts makes the process accessible to those who do not have access to

lawyers.

The consideration of the balance of public interest in relation to exemptionsemphasises the release of information which is of value to the public.

4. There are two inherent weaknesses in FOIA: The class-based exemptions of security-related information and the

exclusion of security bodies from the Acts scope.

The 53 veto.5. There are four further weakness in how FOIA is applied in practice:

Public authorities often apply unintelligent methods of searching, resultingin information not being found or conversely in requests being unnecessarily

pushed beyond the 12 limit.


2/8

FOI 103 Public authorities do not give specific reasoning for rejecting requests,

resulting in unnecessary complaints to the ICO.

The concept of public interest is often interpreted in an unbalanced way, asbroad reasons for maintaining an exemption are compared with narrowreasons for releasing information.

It is unhelpful and unnecessary under 40 to exempt the names of thoseacting in a purely professional capacity.6. The calls by certain public authorities for reducing the 12 cost limit are

misplaced, as other solutions could better align minimising public costs with the

public interest in government accountability, which is indeed the original purposeof the Act.

7. It would also be unfair, and would hamper FOIA, to include reviewing andredaction in the 12 cost assessment, since the amount of time spent on those

activities is decided by the public authority rather than the requester. A better

solution would be to charge requesters per page for copying and sendinginformation, preferably with clear information as to what information is held.

Introduction

8. I am an experienced requester. Since FOIA came into force in 2005, I have madeover 70 requests, mainly to central government departments. I have also madearound 50 requests under the US Freedom of Information Act, which gives me a

comparative perspective.

9.

Many of my requests were made in the course of researching my book, Fuel onthe Fire Oil and Politics in Occupied Iraq, which was published by Random

House in April 2011. I am also Director of Campaigns and Policy at the charityWar on Want. In this submission I draw on experience from both roles.

Does the Freedom of Information Act (FOIA) work effectively?

10.Broadly, the Act works effectively. For example, through FOIA I have obtainedand published significant information revealing government mistakes and

misleading statements in respect of the Iraq War. FOIA has served a profound

public interest in helping the public to learn the lessons of that War, and indisclosing government actions.

11.Information I have obtained through FOIA has generated many press stories,including on the front page (Independent, Secret memos expose link between oil

firms and invasion of Iraq, 19/4/11).


3/8

FOI 10312.At War on Want, information obtained through FOIA has enabled the charity to

strengthen its arguments and target its campaigns, enhancing its ability to achieve

its charitable aim of relieving poverty. For example, in respect of our campaign to

protect the livelihoods of crop growers, we obtained records of the supermarketslobbying of the government against regulation, allowing us to hone our

arguments.

Delays

13.A key aspect in which FOIAs effectiveness is limited is in excessive delays bypublic authorities, especially in conducting internal reviews. For example, oneCabinet Office review of my request took a whole year; a Department for

Business, Innovation and Skills (BIS) review took 21 months even after

repeated interventions by myself and by the ICO. Whilst these are extreme cases,I have frequently found internal reviews to take more than the ICOs

recommended maximum 40 days, and usually for no good reason: internal

reviews have mostly failed to show any serious reconsideration of the issues.

14.RECOMMENDATION: The Code of Practice and/or FOIA should be amended toset a time limit of twenty working days, or forty days in exceptional cases, for the

conduct of internal reviews.

Lingering culture of secrecy

15.Comments in the press most notably by former Prime Minister Tony Blair andformer Cabinet Secretary Gus ODonnell suggest that some want to return to thedays when government had no accountability to the citizenry. My experience of

using FOIA has often found recalcitrance by public officials, including a default

position of rejecting requests, failure to substantively consider arguments andholding back information until the last minute when forced to release it by the

ICO or IRT.

Lack of incentive to comply

16.A major impairment to FOIAs effectiveness, in the context of civil servantsfrequent reluctance to release information, is that a public authority faces nopenalty for wrongfully refusing requests. An authority can routinely refuse all

requests, on the assumption that the majority of requesters will eventually give up.

In the small percentage of cases that are pursued, the authority can releaseinformation at the later stage. From the perspective of a recalcitrant civil servant,

such a strategy would have every advantage and no disadvantage.

17.Indeed, my experience is that authorities frequently seem to reject requests as adefault position, and only to provide information when made to do so by the ICO

or IRT. To illustrate, during 2009 and 2010 I made 38 requests. Of the 27 caseswhere the information was held, in only nine cases was the information released


4/8

FOI 103at the first stage and in one case after internal review. In 12 cases the information

was released only after the ICO either issued a Decision Notice or intervened

informally and in one case after an IRT ruling (4 cases were exempt).

18.This suspicion of default rejection is reinforced by events on the two occasions Ihave had cases at the IRT. In both cases the public authorities (respectively BISand the Cabinet Office) insisted information was exempt right up to the point

where the IRT process was under way, at which stage they started releasing

information, apparently in order to avoid an adverse ruling.

19.If the government is genuinely concerned about the burden of FOIA on itsresources, a sensible route to reducing the costs would be to properly consider and

respond to requests in the first place, rather than rejecting requests and so having

to put greater resources into an ICO investigation or an IRT hearing (including the

high costs of lawyers).

20.RECOMMENDATION: public authorities should be fined by the ICO and IRTwhen they have handled a request incorrectly, with the level of fine set so as to

have a deterrent effect, and varied according to the degree of negligence or bad

faith shown by the public authority.

Failure to give advice and assistance 16

21.In almost all cases when I have requested advice under 16, I have been given anon-specific, largely meaningless response based on generalities. As a result, my

requests have not been as well honed as they might have been, wasting my time

and that of the public authority. RECOMMENDATION: Again, the ICO and/or

IRT should have a power to fine public authorities.

22.A further problem is long delays in the provision of advice: for example one ofmy 16 requests finally received the advice four months later, after I had chased it

five times. RECOMMENDATION: 16 should be amended to set a time limit of

ten working days for the provision of advice.

The strengths of FOIA

Non-judicial mechanism

23.One of the strengths of the UKs FOIA compared to the US equivalent is that theappeal and complaint are heard by non-judicial bodies, namely the ICO and IRT.

This allows information to be obtained by those without the resources to hire

lawyers. For example, I recently represented myself in a case at the IRT and won.

24.Both the ICO and IRT are functioning well. The ICOs guidance notes areespecially appreciated.


5/8

FOI 103

Concept of public interest sections 2(1)(b) and 2(2)(b)

25.Another strength is that most of the exemptions are qualified by the public interesttest. This introduces a discretionary aspect, which is important because legislation

is not capable of anticipating all circumstances that may arise. It also places theAct clearly in the service of the public interest.

The inherent weaknesses of FOIA

National security sections 23 and 24

26.The exclusion of certain security bodies from the scope of the Act and theexemption of information obtained from them are unwelcome departures from the

general principle of discretion based on the balance of public interest. The same is

true of the criterion of ministerial certificate in exempting information whoserelease might damage national security. National security is a concept over-

used by governments to justify secrecy, and must always be balanced against the

public interest.

27.While the public interest threshold would be set high for security-relatedinformation, recent revelations of security services involvement in torture and

extraordinary rendition demonstrate the importance of also those servicesaccountability. For comparison, in the USAs FOIA does not exempt the CIA.

53 veto

28.Although the 53 veto has only been used twice, there seems no justification forgiving the ultimate say to the government itself. This provision undermines the

credibility of and confidence in FOIA.

Weaknesses in how FOIA is applied in practice

Unintelligent searching

29.Public authorities often search for requested information in a manner that defiescommon sense. The effect is either to fail to find relevant information orconversely to find so much that it cannot be processed within the 12 limit. Many

of my requests have been for information that would be routinely required in the

course of the authoritys usual business, yet have been met with a response thatthe search is impossible to conduct.

30.For example, a recent request by War on Want to UK Trade and Investment forrecords of UKTIs recent communications with four named companies was


6/8

FOI 103rejected under 12, on grounds that to find the information we would need toconsult every member of UKTI throughout the world.

Failure of public authorities to give reasoning, even at internal review

31.When information I have requested has been considered exempt, publicauthorities have invariably given generic descriptions of the relevant exemption,rather than any reasons why they apply in the particular case.

32.In some cases, clear reasoning, especially at internal review stage, might haveshown me that the authority was correct, in which case I would not havecomplained. More often though, I have ultimately found that the authority has no

reason for applying exemptions, and only even considered the request specifically

when contacted by the ICO. This has led to considerable wasted resources: mine,the ICOs and the governments.

Public interest interpreted in unbalanced way

33.A general problem with the public interest balancing exercise has been thatauthorities have not compared like with like. The public interest in maintaining an

exemption has been taken to be broad, in that release would affect a whole classof information, but the public interest in release has been taken to be narrow,

relating only to the specific case. The ICO has also committed this error on

several occasions.

34.The exemptions that have come up most commonly in response to my requestsare those under 27, 40 and 43. In relation to 27 and 43, it has been argued

that release of information would discourage foreign states or companies

(respectively) from sharing information with the government in future a generalpublic interest. Conversely, it has been argued that releasing the information

would serve the public interest in respect only of its specific contents, not in terms

of a broader public interest in transparency and accountability. For an example ofthis, see ICO Decision Notice FS50286465, 15 December 2010.

Names of individuals 40

35.The redaction of peoples names often diminishes the value of information. Therelease of what someone has said or done in a professional capacity should not in

general be considered unfair. Case law has however established an approachwhere names are redacted of all officials below Senior Civil Servant grade. There

should be no reasonable expectation of privacy of a persons actions carried out in

a professional capacity, as such information is routinely available withinprofessional circles, such as through industry conferences.

RECOMMENDATION: 40 should be amended to such that names of

individuals acting in a purely professional capacity are not treated as personaldata.


7/8

FOI 103

Costs and the burden on FOIA on public authorities resources 12

36.Some public authorities have complained about the cost of responding toinformation requests. Sometimes these calls have drawn attention to specificexamples of frivolous use of FOIA: such as requests for the number of toilet rollsor teabags purchased by an authority, or requests for information on alien

abductions. It would make sense to charge commercial organisations who use the

Act to help them sell goods or services to public authorities. However the cost

limit ofpublic interestcases should not be reduced, as that would undermineFOIAs ability to deliver the government accountability it was intended for.

37.In particular, media requests interpreted broadly to include bloggers, authorsand campaigners should not be restricted, given the important role media play in

holding government to account.

38.Statistics from Frontier Economics suggesting that 5% of requests account for45% of costs may create a temptation to exclude the most complex and costly

requests from the Act by lowering the 12 limit. This would be unwise as often it

is the more complex requests that give us the greatest insight into publicauthorities, and which best expose bad practice.

39.It would also be wrong to include the time spent reviewing and redacting in theassessment of whether a request exceeds the limit because the time spent on

those activities is chosen by the public authority not the requester. If the FeesRegulations were changed to include review and redaction costs in respect of 12,

reticent public authorities would have an incentive to be excessively rigorous in

their reviews, thereby automatically pushing many requests unjustly above thecost limit.

40.On the other hand, the current arrangement does create perverse incentives forrequesters, whereby a request is less likely to be rejected under 12 if it is framed

more broadly as that will reduce the time spent locating and extracting the

requested information at the expense of requiring more time to read, review and

redact. The result is that sometimes an authority will spend time processinginformation that is in fact of little interest to the requester.

41.A good solution to this problem would be to add another stage to the FOIAprocess, wherein an authority would first provide a requester with a list of

documents in scope of the request, including title, date, metadata and number of

pages. Charging copying costs (as provided in the Fees Regulations) woulddiscourage requesters from asking for irrelevant information, without excessively

deterring requests as a whole. The list of in-scope documents would then

effectively serve as a price list. A selection and payment process could be


8/8

FOI 103

managed online, leading to a second stage of processing which included reviewand redaction, focused only on the documents the requester actually wants.

42.In general, the cost to public authorities should be better aligned with the purposeof FOIA: by rejecting or charging for requests that do not improve government

accountability. Such decisions should still be subject to complaint and appeal toprevent abuse.

43.The USAs FOIA has a sensible approach to this problem. Requesters are dividedinto categories, and charges levied accordingly:

Commercial requesters are charged the full costs of search and review (iestaff costs) as well as of copying and sending.

Individual requesters are charged for copying and sending costs, and forany search and review time beyond two hours.

Media, educational and non-commercial scientific requesters are chargedfor copying and sending costs but not search and review time.

44.There is then a waiver of charges for requests in the public interest, defined asthose where the information is likely to contribute to public understanding of

government activities and is not in the commercial interest of the requester.

Conclusion

45.In conclusion, the passing of FOIA has been a major achievement in enhancingthe accountability of government. Post-legislative scrutiny of FOIA creates an

important opportunity to correct some of the specific weaknesses of the Act.However, calls to restrict the application of FOIA whether on cost or other

grounds should be resisted, as they would undermine that great achievement.

February 2012

written evidence from greg muttitt

Documents