net.wars: Information wants to be freed
by Wendy M Grossman | posted on 01 March 2013
Twelve years after the passage of Britain's Freedom of Information Act (2000), the government is reviewing its practice. This country is famously secretive; read Heather Brooke's books The Silent State and Your Right to Know or sample the requests at What Do They Know? to feel the blank-wall resistance.
The basics: last July, the Justice Committee reported the results of its post-legislative scrutiny of the act: its report; oral and written evidence; and additional written evidence. In November, the government published its response (PDF). The Information Commissioner, which oversees the Act and handles complaints, was cautiously optimistic. More worried about the potential for weakening the Act is the Campaign for Freedom of Information, which was founded in 1984. Last week, CFOI held a briefing to outline its analysis (PDF) and concerns.
It is, I suppose, inevitable that any time a country passes a new freedom of information act the authorities who are now required to answer the public's requests for information get grumpy. Who are these people demanding information, and why won't they leave us alone to get on with governing them in peace? And why are there so many of them? Reading through some of the written submissions is a Yes, Minister moment: unlike most government policies, the more successful this one is the more people complain about it.
From the start, politicians seem to have worried that government authorities would be plagued by the information request equivalent of a denial-of-service attack: obsessive individuals buying ink by the barrelful seeking to satisfy some private, unworthy agenda. They call these "vexatious" requests, which seems a hilariously poor choice of language: how many of the various authorities Brooke pestered for information to which she was reasonably entitled regarded her as "vexatious"? While it's a small point, I'd like to see this changed to "abusive", to make it clear that the pejorative applies to the requests and not the requester.
The people answering the requests are not always good judges. In the evidence, several institutions of higher education complain that journalists send "round-robin" requests to a dozen or two universities but use only the three or four responses to illustrate their stories. This is actually good news: instead of picking three in advance and calling them a trend, these journalists are responsibly surveying the landscape to get an accurate view. FOI is not PR; you don't judge the success of your efforts by whether you get a nice write-up.
CFOI is concerned about the suggestions for reducing the (vexatious) burden on public authorities by either adding cost for requesters or reducing the time and resources authorities must allocate to answering. One recurring idea is to introduce a charge for making FOI requests - perhaps the £10 charged for subject access requests under data protection law. Alternatively, authorities may to reject requests that cost more than £600 (at a standard rate of £25 an hour) to answer, not including time for consideration or necessary redaction. So lower the cost limit, raise the rate per hour, or include consideration and redaction. Other proposals CFOI's director, Maurice Frankel, listed are charging fees for tribunal appeals or aggregating all of an individual or organization's requests to a single authority, related or not, and blocking further requests for a set period.
Frankel is hoping none of these happen. Aggregating unrelated requests from a single individual or organization would most hurt local press. Bloggers and journalists already call tribunals intimidating and user-unfriendly; Frankel notes that charging only about 25 percent of appeals are struck out, so charging fees would likely deter many valid appeals.
I also think it's not valid to compare subject access requests with FOI requests. Subject access requests are more straightforward, based on your individual relationship with a particular organization, and you are the beneficiary. FOI requests are more complicated, often requiring follow-ups and more research; the information they're designed to elicit has been gathered at taxpayer expense; and the beneficiary is the public interest.
It remains to ask how significant a problem abusive requests are; they should not be an excuse to penalize an entire population. In its response to the task force grappling with the same problem in Canada, the Information Commissioner of Canada commented (PDF) that the evidence for the "abusive" claim was anecdotal and poorly identified and that even the government's task force agreed that most requesters were responsible. It estimated the cost across Canada at $1 per capita and falling, and called solutions similar to those above a hammer to kill a fly (thanks to Tamir Israel for the link).
It's hard to be too sympathetic to public bodies wanting FOI cut back; the power of secrecy has been theirs for too long. Over time, the waste of resources they're fretting about should diminish as their culture changes, systems are reconfigured to speed common requests and open data by default. Proactive disclosure will go a long way toward reducing the burden. More important is ensuring that private companies fulfilling public contracts don't escape.
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Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, follow on Twitter or send email to netwars(at) skeptic.demon.co.uk (but please turn off HTML).