FREEDOM OF INFORMATION

These are rough lecture notes and do not constitute legal advice. The notes were updated in Novermber 2008

FOI was a New Labour policy objective.

"Unnecessary secrecy in government leads to arrogance in government and defective policy decisions"
- Tony Blair 1995

the 2000 Act (came into force January 2005) gives public and journalists TWO key powers

(a) Makes it mandatory on a public authority
to disclose whether or not it has the
information requested
– yes, you can go fishing
– have you got any information on
A, Y and Z ????
? If so, Public Authority must communicate that information

Who is covered?

? More than 1,000 public bodies
? Central and local government
? Health
Education
Other public bodies throughout England,
Wales and Northern Ireland

SPECIFICALLY:

ALL

Local councils
? Parish & Town councils
? Hospitals
? Health trusts
? GPs
? Dentists
? Pharmacists
? Government departments
? Schools, colleges, universities

ALSO, ALL

Privatised bodies eg
Utilities, ie water, gas electricity, etc
Fire & Police Authorities
ALL QUANGOs including 400+ named bodies, eg
ALL Government Advisory Committees inc
- Medicines Control Agency
- Equal Opportunities Commission
- Commission for Racial Equality
? British Potato Council
? Advisory Committee on Wine

ALSO....

ALL public bodies, offices established by

? Enactment
? Crown Prerogative
? Government department
? Ministerial edict
? Any private sector org performing PUBLIC service
Public- Private contractors
Providers of sub-contracted public service functions

EXEMPTIONS:

? Security & Intelligence services
? Special forces – SAS / SBS
NCIS
GCHQ
ALL OF WHO have NO DUTY
to CONFIRM or DENY that
ANY INFO EXISTS

ROUTINE EXEMPTIONS

? ABSOLUTE - refusal if no PUBLIC INTEREST TEST applied
? Info available elsewhere – Google?
? Court records
Trade secrets
Security matters

QUALIFIED EXEMPTIONS

ie subject to “Public interest” test
23 such criteria spelt out in Act
? Government policy formulation
? Info “prejudicial” to effective conduct of public affairs
? Law enforcemen
The economy
Legal professional privilege

THE PUBLIC INTEREST TEST:

“Information must be released UNLESS it is judged that the public interest in NOT disclosing it is greater than the public interest in releasing it”

Public authorities must disclose if info

? Furthers understanding & participation in public debate on issues of the day
? Promotes accountability/transparency of
(i) public authority(ii) how public money is spent
Allows public better understanding of(i) decisions affecting individual lives(ii) asssists challenges to such decisions

GOVERNMENT VETO POWERS

? Available only to Cabinet ministers
? Anyone else such power derogated to
Can block Information Commissioner disclosure on Public Interest grounds
BUT
CANNOT be used against an order NOT covered by EXEMPTION

F.O.I - PROTOCOLS

? No need to disclose WHY info sought
Response must be within 20
working days
No distinction between media requests and others
Statutory duty to assist inquiries
Info refusal only citing clause of Act
Must outline complaints procedure

REQUEST PROCEDURE

1) Request in writing
2) Enough info for authority to reply
3) Can specify how info must be given (by post, e-mail, fax etc.)

========

CHRIS HORRIE NOTES

Campaigning journalist Heather Brookes, has written: “Most of us are not that interested in party politics. We just want good solutions to common problems: safe public transport, reliable and competent healthcare, good schools for our children, safe streets and a just and efficient legal system.”

Making an application

Under the 2000 FOIA more than 100,000 public authorities were required to give a legal right to the public, including journalists, to inspect their records. They are also required to publish a schedule setting out the type of information which they hold. They must also help process inquiries within certain time limits. The whole process is overseen by a national Information Commissioner to whom appeals can be made. Public bodies which do not help the public exercise their rights under the act could, in theory, lose their right to keep records at all which, in practice, would mean they could no longer function.

The operational part of the act is

Any person making a request for information to a public authority is entitled

1. to be informed in writing by the public authority whether it hold information of the description specified in the request, and

(B) if that is the case, to have that information communicated to him.

But a large part of the act is taken up with a long list of exemptions – cases or circumstances where a public body does not have to provide information.

The first potential hurdle is the definition of “information” itself. The Act specifies that only information, or records of decisions, which have been written down or electronically recorded, counts as information available to the public under the meaning of the Act. The danger is that once public officials realise that decisions they record will be open to public scrutiny, they will be more circumspect in creating accessible records in the first place. It was alleged in the Butler report that under the prime ministership of Tony Blair decisions were often made be unofficial sub-groups. Records of decisions made in cabinet or other official bodies did not exist, because the they had been made in advance and in private. Butler’s report criticised the practice of “sofa government” which, he complained, had led to greater secrecy in reality, despite the FOIA and other measures aimed at “open government”.

(House of Commons dated 14th July 2004 for the
Review of Intelligence on Weapons of Mass Destruction
Report of a Committee
of Privy Counsellors Chairman: The Rt Hon The Lord Butler of Brockwell KG GCB CVO )

The Lord Chancellor office issued a Code of Practice on Management of Records which establishes standards in this area.

ASSISTANCE – section 16, the agency must provide help.

If there is a mixture of exempt and non exempt information, then they must supply the non-exempt, and they can black out what they believe to be exempt information.

FEES –

Argument of over restrictive fees and exemption on grounds of excessive cost of processing request as a exemption from the act.

If a request costs too much, then the department does not have to supply the information, even if you are willing to pay. Latest fee guidelines (this changes frequently) are given  on the Department of Constitutional Affairs website, and the pro blem is widely discussed on the websites of advocafcy groups such as campaign for FOI and the personal website of investigative journalist and FOI expert Heather Brooke.

Previously the cost of  providing an answer was a common reasoin why ministers would not respond to PQs – (discuss PQs as a way of obtaining official information – tame contacts. Often through pressure groups, will maintain links with backbench MPs who will be willing to table written parliamentary questions – especially opposition MPs to government ministers.

The way round this  cost issue is to ask a series of small questions, rather than a big trawl. But then again asking a lot of small questions may be regarded as vexatious,. In at least one case a persist user of the FOI has been banned from asking further questions – GET Referrnecve – so there is a fine balance to be struck, and a growing band of FOI user specialists, many attached to pressure groups such as environmental lobbiest, weho are becoming increasingly expert at the tactics and ‘reality’ of the FOI request game.

PUBLICATION SCHEME – each authority will publish one – they vary in usefulness.

The Hampshire County Council is fairly typical.

TIPS ON GETTING STORIES

I went to a conference (Press Gazette Media Law confrence earlier this year) and there was a journalist call Matt Davis who has made a very profitable career just out of selling FOI stories to the national papers.

He said the act was not perfect - too many exemptions, too many delays and thje new ruling on 'prohibitive cost' can give bureaucrats an effective veto. Yet it is still a brilliant tool.

He works for an agency - Connor PRess Associates - a local court reporting agency for Brighton. I liked him he was a total hack. He sais that all journos had to become FOI evangelists.

Good authorities to go for (happy hunting) are the quangos - eg NHS litigation authority (how much paid in compensation this year for medical cock-ups) - his eyes actually lit up with an evil glint at the thought of the Olympic Delivery Authority.

The method was one think creatively of a story - eg how much has South West trains spent this year on flower boxes - then send off an application. Think of lots of stories and play the percentages.

He got a set of national front pages with THE WORST HOSPITALS IN BRITAIN - that was not the usual press released league table crap, it was by dpoing FOI on an obscure body called the NHS litigation authority (they deal with compensation claims). He asked for a break down of spending by hospital and also for the insurance the hospitals needed. He identified the worst hospitals on the basis of how much the insurance companies charged to cover them for negligence. It was a big exclusive story - pure investigative journalism, cheap and effective and easy to do.

BORAT - two years ago when a massive start - he sent off an FOI to teh Foreig Office asking for ALL documents from UK ambassador to Kazakstan. Revealed theat the Kazak government had threatened action against Britain - maybe even military attack on Britain - because of BORAT - was a big story.

One thing is to track popular culture so right now there's a big TV show about pandemic virus, so you can get the 'real liffe' fversion of preparedness for that (from emergency planning).

It is important to frame the requests in bureaucratic language, and keep it vague. If you are specific and categorical (journo language) then they can wriggle. It is similar to interview techniques- open questions are better than specifics. At same time must not be too wide or vague. There's an art to it - trial and error. Ask lots of simultaneous questions. It is like playing the game of 'battleships'.

Important to think which particular authority will have what sort of information (you need a good knowlege of local and national government structure - don't use lacl of knowlege not to do it, but it will help if you know NCTJ/BJTC-type public affairs.

It is amazing the amount of information which is now collected and categorised. Eg if you fall out of bed and hurt yourself up to 12 seperate authorities will record this fact - each stage from when you go to the doctor, to the hospital, to the pharmacy, then the type of accident will be notified to Health and Safety Executive. and to various policy groups. It is all aggregated and some public body will somewhere ahve a statistic on the fact that twice as many people are now falling ouit of bd than last year if you think that might be the case.

Also there are 10 categories of aggregated information for exclusion from school for example. Also information on recycling or waste disposal or toxic materials or anything green is a goldmine.

The main danger is asking for anything that might identify anyone in particular - because of section 8 HRA and Data PRotection Act, they can turn you down if the request will identify anyone, even by accident. Avoid that in the way you fram the question.

Keep questions short and simple. Ask multiple questions (break it up). Also ask for previous years. Also ask for brief summary of important or indicatiuve cases, without identifying anyone. This will add colour, or tease out more stories.

Eg Matt asked how much money has been paid as compensation to school children in aggregate for injuries sustained in school. I (think this was to ministry of education, or possibly to a local education authority). They came back with the figure and the example of one of he most expensive cases (he has asked for a non-ID summary of the most expensive cases). They came back with £6,000 paid to a teenager who was injured when a gate his was climbing over collapsed on him and injured him when he was breaking in to the school. Big story - Daily Mail paradise.

Tip is don't take no for an answer. Re-phrase the question. Sometimes its a dialogue until they give you something, with many exchanges of correspondnce, keep refining the question. Then also appeal and re-appeal. Make it clear that you won't go away. Go to the Information Commissioer. He always feels encouraged when they are evasive at first - it confirms that you are on to something.

More examples - "Too Fat to Work" - came from Department of Work and Pensions - asked for a spreadsheet breaking down all the categories for which people got disability pensions and benefits - not just generally disabled - how many blind, how many mentally ill, etc. It took two months of correspondence. Eventually got it in great detail. Spotted in there several thousand people who were on diability benefit for obesity - hence 'too fat to work'. Big national story.

Previously the news editor of the Kent Messenger was a FOI pioneer - he got for example just the electricity bill for he town hall and went and photographed the office with all the lights blazing. It made a great local paper investigative front page.

these rough notes end.

The FOI campaign website tracks FOI application stories as they appear in the press.

The 2000 Freedom of Information Act Itself

The official FOI site, with a guide for users

FOI as a shot in the arm for local/regional press and radio

Excellent FOI Blog and link site

FOI in the NHS

These notes do not constitute legal advice. They should be read in conjunction wit hthe lecture, subject to indepednent verification and research.

back to MA journalism.

back to BA journalism.