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Freedom of Information Act

Volume 450: debated on Monday 23 October 2006

Motion made, and Question proposed, That this House do now adjourn.—[Tony Cunningham.]

I am grateful for this opportunity to discuss the Freedom of Information Act 2000, especially as the debate coincides with some proposed changes to the Act, which are in danger of changing it for the worse.

I start at the point when the Act was first imagined by the then Leader of the Opposition who spoke about freedom of information at an awards ceremony in March 1996. He said that

“information is power and any Government’s attitude about sharing information with the people actually says a great deal about how it views power itself and how it views the relationship between itself and the people who elected it.”

Wise words.

We should congratulate the Government on introducing the Freedom of Information Act. It was a good step in the right direction, which has, by and large, increased the ability of members of the public to get access to information, in particular from Government bodies. As I shall explain, the Act has not worked quite as the then Leader of the Opposition intended and that gives rise to serious concern about some of the changes to be proposed shortly.

Although the Act was passed in 2000, it has been in operation only for about 22 months. In that time, a vast array of freedom of information requests has been made to some of the 115,000 bodies open to such requests. The responses have been informative and worth while, and in the wider public interest. However, an Act that came into force so recently has not yet had time to settle down, so that we can see how it performs in reality. I draw attention to the fact that there has yet to be even one occasion when any decision about whether to supply information under the terms of the Act has been challenged in the High Court. Not one decision has yet been challenged in the High Court.

Many decisions have been challenged with the help of the Information Commissioner’s office, which is quite right. However, until the Act reaches such a state of maturity that it is actually tested in the courts, it is premature to talk of changing it. I shall say more about that later.

Personally, I find the Act most helpful. Recently, I achieved the release of information, through the Act, about the scale of cancelled appointments in the NHS; for example, we found out that 1,000 operations are cancelled every day, due to various equipment, bed, staff and management problems. The Department of Health was unable to provide that information when I asked for it in parliamentary questions, but the beauty of the Freedom of Information Act is that we can go to the source. Indeed, it was ironic that on the day I reported the information that I had uncovered, I heard that the Department of Health was trying to claim that my figures were inaccurate. In fact, the Department had no way of knowing whether my figures were inaccurate—in reality, they were entirely accurate—because it did not collate the figures. I tested that point through a question in the House, and the Freedom of Information Act provided me with the opportunity to release the information for the wider public good, so the measure certainly works.

However, when asking a variety of questions via the Act, I came across a number of concerns. My principal concern relates to the way in which the Act is operating. It is being pretty much openly flouted, and the Government should take that on board. Today I issued the results of research carried out on the last three freedom of information requests that I made, two to national health service trusts and one to local education authorities. I found that in those three requests—almost 1,000 pieces of information were requested in total—as many as 50 per cent. of those asked to provide information under the Freedom of Information Act failed to respond on time or with information that related to the question asked. One third failed to respond at all.

If one third of public organisations are failing to respond to perfectly proper requests under the Freedom of Information Act, we have a problem. For clarification, the House should note that these are not instances where the public bodies failed to respond on the basis of cost or on the basis that it was not in the public interest, which are two of the most obvious reasons why bodies would not respond. The one third that have not responded simply did not reply to the FOI request—not just once, but in the case of the NHS trusts, serially. So those are serial offenders, consistently breaking the law by not complying with the terms of the Freedom of Information Act. With the LEAs I found the figures to be somewhat lower, but still worrying. About a third of LEAs did not reply or replied late or with inaccurate information, and about a quarter failed to reply at all.

I see a systemic problem with the current system. I call on the Minister to tell us this evening what steps will be taken to improve the performance of the Freedom of Information Act. I called the debate with that in mind, but since then something has happened that has heightened my concern. In response to the Constitutional Affairs Committee, the Government released a report that seeks to make amendments to the FOI Act. The House would do well to study those amendments in great detail and express its concern.

The amendments appear to make it harder for the public to use the Act in order to obtain information. Regardless of whether it would be harder or not, it would certainly be more expensive. The information that has drifted out so far is confused. Can the Minister tell us whether it is the Government’s intention to introduce a charge for requesting information under the Freedom of Information Act? I should appreciate clarification.

Whether or not a charge is introduced by a reformed Act, we understand that the Government are considering allowing a couple of things to happen that would make it much harder to obtain information. The first consideration is to group together various requests made by one individual, and allow the authority that is being challenged for the information to claim that it would cost too much to answer. That is not fair play. I am not the only one who has serious reservations about that. The Constitutional Affairs Committee stated:

“These changes, if implemented, would fly in the face of the Government’s stated desire of encouraging an open culture and have the potential to block important requests where it would be in the public interest to disclose information.”

That, we understand, is the first way in which the Government intend to make it harder for the public to gain information.

There is a second route that the Government are considering, whereby they would allow public bodies to add up the reading or studying time—the so-called consultation time—in order to decide whether or not the cost of answering a question would exceed the current limit. Therefore, as I understand this—again, I would appreciate clarification when the Minister responds—the Government might be making it much easier for a public body to claim that a request is simply too expensive to respond to. That is entirely wrong if it is done by, so to speak, massaging the accounting time in respect of answering the question. No wonder these changes are causing great concern; for instance, an early-day motion is now before the House urging the Government to row back on the proposed changes.

When the Government introduced the concept of freedom of information, the then Leader of the Opposition talked about it being a real test of the Government’s relationship with the public. On that occasion, he was absolutely right. It would be a great shame to destroy an Act that has done quite some good, and that has enabled a lot of information to come out in the public interest, by making it harder to use that Act by making it more expensive to do so, and by failing to address a fundamental problem that we seem to face at present, which is that a surprisingly high number of requests are failing to be answered. I would be grateful to hear what the Minister intends to do about those bodies that are serially offending—they are flouting the law—by refusing to supply information that would be very much in the public interest.

I congratulate the hon. Member for Welwyn Hatfield (Grant Shapps) on securing this Adjournment debate on an important issue. I begin by reminding him and other Members that it was this Labour Government who introduced the freedom of information legislation; and may I furthermore remind him that his party had 18 years in government in which to try to pass such legislation if they had wished to do so—indeed, they could have walked it through Parliament—but they chose instead to cling to secrecy? There is not a lot of letting sunshine win the day in that regard, or any other chink of light—there was something of the night about that Government perhaps, in terms of the darkness that they intended perpetually to keep the public in. As the hon. Gentleman said, information gives citizens power, and his party decided not to give the public that power against them.

This Government brought into force for the first time a statutory right to know. The hon. Gentleman’s constituents do not need his assistance to find out how public services are performing; they can ask for themselves. As the recent Constitutional Affairs Committee report on this legislation stated, the Act is a significant success. It has made available thousands upon thousands of pieces of information in just 22 short months from more than 115,000 public bodies, and that information is now being used constructively in the main. It is important to understand how far we have come since the Conservative days when citizens were not entitled to information about the number of operations that had been cancelled, or the number of management consultants that had been used by any branch of the hon. Gentleman’s Government; they would simply never have known, and their ability to question the Government was therefore significantly weakened.

This is fully retrospective legislation, with a statutory right of appeal to an independent regulator. The hon. Gentleman argues that some authorities have not answered his questions in time. I understand that he asked some questions in July, and others in August, of local education authorities, health authorities and primary care trusts, and he gives us what he describes as the figures. I do not know which parties were in political control of the LEAs that chose not to reply. Does he know whether they were Tory authorities, for instance?

I have not made this a political point, and I accept entirely that it was good to bring this legislation in. Does the Minister agree that, if we are not playing party politics, it would be better to answer the points made in the debate, which are to do with the extent to which the Act is not currently being complied with?

I am sure that he does not, but I am sure that he will appreciate that the darker recesses of his party still do not support the legislation, although it is correct that his leadership did not oppose it. But those darker recesses do not welcome it, and he should examine whether there is any political resistance from his own party.

I have a lot to correct, so I will not.

We do all that we can to encourage, educate and support, and drive forward the attitude of public authorities that we want to disclose information to the public, in line with the legislation that we used our energies to enact. We intend that all those public authorities will empower the public, as the hon. Gentleman indicated they should, by providing such information. We do all that we can and we will continue to do so, and we will work harder if we are not succeeding.

The hon. Gentleman has recourse to action, as he well knows. In essence, he said, “You’ve given me a right to pursue a public authority. They haven’t answered since July or August. What are you going to do about it?” That is a bit like saying, “The law has given me a right to sue a public authority and it won’t pay the money. What are you going to do about it?” The hon. Gentleman must know that it is not the Government who bring the action for money; we have given the citizen the legal framework through which to sue. The citizen must go to court and get the bailiff to enforce their right. The answer, of course, is that recalcitrant authorities should be pursued, if they simply will not reply, through the enforcement framework that this Government have provided. Members of the public—and MPs—have the right to request an internal review when no reply is given, and the right further to appeal to the Information Commissioner. If they are not satisfied with his decision, they can appeal to the Information Tribunal and, ultimately, to court.

Contrary to the hon. Gentleman’s opening line that precedents from the court are very important before changes are made, it is not intended that the public should be priced out of making appeals against failures to give information, which is what could happen if courts were the point of recourse. The idea is to have an independent regulator who is freely accessible. In many other countries, the courts are, in some cases, the only recourse. That is not what happens here. We have established an equally free means of controlling the way in which public authorities deal with such matters, and we encourage all the tiers involved to drive the public authorities to be as full and frank as they can be.

We are committed to the principles and philosophy of freedom of information. In 2005, central Government alone released 20,000 pieces of information. Some 60 per cent. of requests resulted in full disclosure in time. That is the clearest evidence of our commitment. Less than two years in and we are clearly outperforming many countries where FOI has been in place for many years, as it could have been in this country. When the hon. Gentleman says that FOI is taking time to bed in, I am afraid that, in a sense, he is criticising his own Government. Other countries have had the benefit of such experience over many years, and we could have had the same. Sadly, it has been left to us.

No, I will not.

This cannot possibly be interpreted as a lack of commitment on our part to openness and accountability. As the hon. Member for Welwyn Hatfield seemed almost ready to acknowledge, FOI has been a real success, but it must be balanced with good government across the piece. We have to make sure that we get the balance right between the provision of services to the public and the provision of information. FOI must not come at the expense of government and our ability to get on with the job, or of the provision of core services.

The two changes that we have said we will make to the regime are not about avoiding this commitment; rather, they are about giving public authorities more options in dealing with the small number of requests that impose truly exceptional burdens, and which tie up resources and take time from public service delivery. Nearly half of all the time that all public authorities spend on FOI casework is accounted for by just 5 per cent. of requests. That small number of cases, which impose truly disproportionate burdens, are our target. If it were our intention to kill demand, we would impose a flat charge. The hon. Gentleman asked me clearly about that, and I answer him clearly: we will not impose a flat charge. It has been estimated that that would reduce demand by 44 per cent., which would not be appropriate. What is the Freedom of Information Act for, if it is not to provide universal access to information free at the point of delivery?

The Freedom of Information Act bestowed important rights, but with those rights must come responsibilities. Those rights are important and we defend them, but it is not a one-way street. For the system to work at its best, we must encourage those who currently adopt a scattergun approach to narrow their area of inquiry, not to block debate or to withhold information, but for the practical reason that there is only so much that we can do with limited resources—it is best to be up front about that point. If we are to deliver the best possible service, we need an environment in which those who request information exercise greater responsibility in the formulation of their requests and recognise that their requests cost public money, which could be spent on other services.

I am aware of a couple of examples of freedom of information inquiries being submitted when the information could have been put in the public domain by making other inquiries. Does the Minister accept that freedom of information requests can be time consuming and expensive and that there are other ways to obtain such information?

My hon. Friend is right that there are sometimes other ways to obtain such information. We have provided the freedom of information route, which is available to people, but we ask them to use it responsibly by submitting measured, targeted and informed requests rather than engaging in superficial fishing expeditions for swathes of information. If people make broad requests, those who are less confident, less expert and less de milieu will have their requests put in jeopardy, because of the cost pressures imposed by the fishing expeditions.

Now we have got off the politics, we are making some progress. Reference has been made to the idea that if authorities do not respond, the courts or the Information Commissioner are the right way to go. I am amazed that Ministers are not more concerned to deal with the fact that up to half of authorities are not responding on time and that one third of authorities are not responding at all. It cannot be right to say that when the law is flouted, the only solution is to turn to the courts and the Information Commissioner without any concern to correct an obvious flaw in the law itself.

The hon. Gentleman is welcome to intervene again after I have made my point again. He has told us that it would be premature to make any alteration to the Freedom of Information Act, but none the less he wants to change it. We have done everything that we can, and we will continue to do everything that we can, to encourage public authorities to comply with requests.

My accusation is that rather than being on the side of the public by encouraging intransigent public bodies to release the information, which should be the Government’s position, the Government are seeking to tighten the legislation to make getting information harder for the public. Is the Minister on the wrong side of the public on this one?

I am not sure whether the hon. Gentleman is following these arguments at all. He has chosen to characterise those who have not responded “in full, in time”—I have no idea what he means by “in full”—as “failures”, but he has asserted that those “failures” cannot have had anything to do with cost. Consequently, I cannot see how he seeks to make a link between what he calls “failures”, which I may not, and the changes that are being introduced to try to make sure that requests are targeted. One of the hon. Gentleman’s own requests concerned management consultants to a particular health authority. He asked for their nature to be broken down across three categories that the authority did not recognise. It could not possibly have done it within the time available, but it did its best and produced the answer in time. The hon. Gentleman would probably call that a failure. If he wants to characterise as a failure everything that is not given in time or does not give full information, his idea of a failure is not the same as mine. It is incorrect of him to suggest that his experience and his way of categorising matters represents a nationwide trend. Eighty-four per cent. of requests to the Government are answered within the time limit, and well over 60 per cent. are answered fully.

In that case, the hon. Gentleman’s figures cannot be correct. Having looked at how they have been analysed by my Department, I think that he has counted as failures those which have not been answered, in his word, fully.

My hon. Friend the Member for Welwyn Hatfield (Grant Shapps) is far too polite to mention the graceless and charmless way in which the debate has been responded to with political point-scoring. I will not take the same approach. Are not public bodies refusing to answer legitimate questions because they are taking their lead from the Government? Hon. Members on both sides of the House have drawn to the attention of Mr. Speaker and others the fact that there are hundreds of unanswered parliamentary questions for which we are given the catch-all excuse that they cannot be answered because of disproportionate cost. The Government take that attitude out into the public sector, so they are responsible for this law being flouted.

Were it not so pathetic, I would be amused that the hon. Gentleman seeks to make politics out of the debate when I am engaging with the hon. Member for Welwyn Hatfield in a proper way. He calls me graceless for having made the point that even he, in trying to rewrite history, cannot get away from—namely, that the Government whom he supported did absolutely nothing to empower the public, whereas we have done as much as we can to do so.

Let me get back to the point and not be interrupted again. My noble Friend the Lord Chancellor commissioned independent advice in order to determine what we should do, having said right at the outset that we would learn from experience 12 to 18 months after the implementation of the Act. It is responsible to learn from experience. We were three years into government when we introduced the Act. We knew that information could be embarrassing, but we had the courage to say, “Give it to the public none the less.”

We ask requesters to start to apply to their freedom of information requests the discipline that they understand they have to use in other areas of their lives. Difficult requests are not those where the requester is specific or where the subject matter is perceived to be sensitive or political. Difficult requests are those that are imprecise, ambiguous or indiscriminate—for example, requests for the number of new posts created in Departments since 1 January 2005. From the office junior to the director of services, one would have to determine which were new, which were partly new, which had changed in status, which were part-time, and which were full-time. It can be done, but it takes weeks. There is a requirement on public authorities to send back such a request and ask the person to be more specific. We use that to try to guide people to act within an acceptable framework. Let me compare it to going to a public library. We do not expect the librarian to search through the library stock for us in the hope that they might turn up something that interests us. If we want a librarian to help us, we make our request precise and unambiguous, as should inquirers.

There has been a lot of misconceived comment on the nature of the changes proposed last week, particularly the provision to aggregate two or more requests when calculating whether the threshold has been reached. Public authorities already have the power—which Conservative Members supported during the passage of the legislation—to aggregate similar requests from the same person. We propose to give public authorities an extension to enable them to aggregate non-similar requests.

We require better standards from those who are best placed to exercise quality research skills, including journalists, campaigners and researchers. Those people’s careers are underpinned by understanding how to ask a clear, unambiguous and precise question. The Act is not intended to transfer the cost of research from the inquirer to the public. At present, anyone can make unlimited requests for information, regardless of the cost to public funds.

The key point that has been missed in the debate so far is that the existing power to aggregate requests is—as the new one will be, if it is introduced—a power. It is not compulsory. The present power is by no means used every time. Indeed, two requests were made by the hon. Member for North-East Hertfordshire (Mr. Heald) concerning material received from the Electoral Commission in 2003-04 and material relative to the findings of the Jenkins Commission. The requests took more than two and a half weeks of official time to answer, which is far more than the time to which the hon. Gentleman was entitled. They could, therefore, have been dealt with by a refusal. However, they appeared to be in the public interest. Therefore no power to resist answering them was used. There is always a balance to be struck in these matters. I ask hon. Members to remember that we are consulting—sounding out—on this issue, and that it will involve a power, not a compulsion.

The other change proposed last week, on which we are also taking soundings, is the inclusion of reading, consultation and consideration time in the hours that can be aggregated when assessing whether a request would be too expensive for an answer to be in the public interest. This proposal will not encourage inefficient decision making. It is designed to reduce the number of occasions on which significant amounts of time are taken up with inefficient freedom of information work. It reflects the significant resource that is currently required to deal with some requests. Estimates of costs will have to be reasonable, and decisions can be appealed to the Information Commissioner and the Information Tribunal. The Information Commissioner already assesses public authority estimates under the current regulations to ensure that they are reasonable. That right will remain the same.

Additionally, public authorities will continue to be obliged to offer advice and assistance to enable the requester to refine their request to bring it below the cost limit. Only a very small proportion of requests are likely to be affected by the proposed changes, but they will be the ones that cost the public purse the most. Frontier Economics, the company that carried out the review, estimated that a maximum of 13 per cent. of requests would be affected, but these account for more than half the resource burden imposed by the Act.

Does the Minister share my concern that the research undertaken by Frontier Economics was not sufficiently comprehensive?

No, I do not accept that at all. The research was built on top of an internal review that was already producing findings of a similar nature to those that Frontier Economics found. Nor do I accept that the review has been carried out superficially. The figures are, of course, readily available to the hon. Gentleman, if he wishes to see them. It is entirely right and proper that we should not permit the cost of research to be transferred from the Government, to the disadvantage of most members of the public who simply want their questions answered, when there are narrower ways for the professionals to frame their requests.

The hon. Member for Welwyn Hatfield has made some good points, but I hope that I have satisfactorily set out that the way forward that we propose and are taking soundings on is the one that will involve the least injury to the availability of information to the public. It is entirely our duty to consider implementing it, because we must ensure that inquiries do not run away with time that ought to be spent by officials on delivering core public services. We are making progress to ever more open government, but, equally, we must continue to safeguard effective government and public administration.

We are committed to promoting the benefits of freedom of information and to providing information to people about matters that affect their everyday lives. The changes will continue to support the important underlying principle of the Freedom of Information Act, but unless we face up to the reality, we risk exhausting our resources on those who have spotted a convenient vehicle for their mischief, and sometimes their indulgence or their idle curiosity. I am sure that the hon. Gentleman has heard some examples of that kind of inquiry, but one that he might not have heard of was an inquiry about how much we paid to supply Ferrero Rocher chocolates to all our foreign embassies.

I refuse to let resources be diverted from those for whom this Government introduced the Freedom of Information Act: the well intentioned, the genuine, the unfamiliar, the inexpert and the citizen who just wants to ask for information. The ability of those citizens to carry out that simple task risks being compromised by the voracious demands of some who are far better able than those ordinary citizens to help themselves. We are sounding out proposals that are capable of getting that balance right.

Question put and agreed to.

Adjourned accordingly at twenty-nine minutes to Ten o’clock.