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Freedom of Information

Volume 835: debated on Tuesday 23 January 2024


Asked by

To ask His Majesty’s Government what assessment they have made of the speed and scope of the operation of the Freedom of Information scheme.

My Lords, there are so many problems with the system that I am now asking the Minister to commence a complete overhaul. My experience with the Department for Levelling Up is that it is not a department that levels with you. I have spent 11 months chasing a small request about the Holocaust memorial and have been met with nothing but delay and evasion. The £600 limit has stayed unchanged for years, limiting hours. There is the need for a reference by an MP. Time limits are not enforced. If you complain about delay, the department is given another 40 days to reply. There is no time limit on the allocation of investigations by the ICO; hence there is limitless hold-up in being able to refer to the tribunal. Does the Minister agree that the system is not fit for purpose and needs review?

My Lords, while I am very sympathetic to the noble Baroness’s dilemma in this issue, we have to draw a balance between the rights of individuals, the burden imposed on our public authorities and the Civil Service and, of course, the objective of improving and increasing transparency and accountability. She has had a difficult experience, first, with a complaint that turned out to be too broad and was therefore disallowed under Section 12— and the Information Commissioner upheld that—and I understand that she has now complained again and that the ICO has started its inquiry into that complaint. These are difficult issues. I would say that the number of requests received for information under freedom of information has been going up. In Q3 of 2023, there were 18,555—that is the highest ever—in spite of the progress we have made with making more information available every quarter as part of our transparency returns.

My Lords, I am not sure that I heard in the Minister’s response to the noble Baroness, Lady Deech, an answer to her Question. Have His Majesty’s Government made no assessment of the impact, the scope and the speed of this legislation?

Of course not—I am sorry if I misled the noble Baroness—as we do keep these things under review. The latest review was in 2016, when the Information Commission on Freedom of Information looked at whether we should change the rule, which noble Lords may be aware of, that freedom of information requests can be turned down if they equate to more than 24 hours’ work. However, civil servants are advised to narrow down requests so that they do not fall foul of that rule, and I know that they do that in the Cabinet Office. That rule was looked at by the independent commission in 2016; there were some advantages to changing it upwards and some to changing it downwards, and the decision was taken not to make a change. However, as I was trying to explain, we take freedom of information very seriously and the number of requests that we are dealing with across the machine has increased. Obviously, individual cases can be a problem.

My Lords, I know that freedom of information is an embarrassment to government and that, when Governments get their feet well under the table, they regret it. I have just been back to the White Paper which introduced the Freedom of Information Act. It says:

“Openness is fundamental to the political health of a modern state … Unnecessary secrecy in government leads to arrogance … and defective decision-making”.

Would the Minister care to say that she strongly agrees with those principles?

I certainly agree with openness wherever we can make things open. Of course, that White Paper goes back to the Labour Government of the early 2000s, and I remember a certain Prime Minister commenting on freedom of information and the problems it had created. Of course, we need open information, but it has to be a combination of using the Act and also bringing in other measures—I mentioned the quarterly transparency returns, and there is the contracts finder and the changes we are making in the Procurement Act—and generally having an attitude of trying to be helpful and open, and not use these things as an excuse.

My Lords, in order for freedom of information to work, it is necessary for Ministers and government to keep proper minutes of meetings. We still have a United Kingdom Civil Service in this country; why are the Government not taking action when Scottish Government officials’ bedtime ritual is apparently not to have a cup of coffee or cocoa but to delete all their WhatsApp messages? Increasingly, the Scottish Government have meetings without proper minutes being kept. What has happened to the fundamental principles of the Civil Service that there should be proper records kept so that freedom of information requests can be dealt with, or if there are inquiries, the information is available to them?

I agree with my noble friend; records are important, both for the record and for the next steps agreed at meetings, which one wants to make sure are carried forward in the interests of efficiency. Obviously, the Scottish Government are a separate Government with their own rules. The Cabinet Manual, as we have discussed before in this House, is in the process of being revised, but that applies to the Civil Service across the piece. We have also introduced new guidance; it is called—a rather difficult mouthful—Using Non-corporate Communication Channels (e.g. WhatsApp, Private Email, SMS) for Government Business, for UK Government, Civil Service and Ministers. That is on GOV.UK and is absolutely designed to make sure that WhatsApps of substance in policymaking or government business are recorded for posterity.

My Lords, the Information Commissioner has found that some government departments have a consistently poor level of performance for FoI request handling. Departments find ways to avoid responding—for example by denying that information is held—and seem to have worked out that there is no meaningful penalty imposed as a consequence. Given that these departments repeatedly fail to comply with the law, do the Government intend to review the sanctions imposed for this failure?

At the moment, as I was saying, we do not have plans to change the Freedom of Information Act. However, we have worked hard to clear the backlog that was created on freedom of information as a result of the pandemic. Some departments have done better than others. We have worked very closely with the Information Commissioner on just that. As I have explained, the casework continues over time. The Cabinet Office gives advice centrally; we try to delegate these things to the appropriate responsible department, but we do encourage good practice and compliance with the complexities of the Freedom of Information Act and its different sections.

My Lords, has there been any estimate as to how much money the Freedom of Information Act costs the Government, at a time when there are scarce resources to spend on services on the front line? Is there a figure for what the total cost to government of this particular piece of legislation is?

It is a good question. I do not have a figure; I have explained that freedom of information is a duty across nearly 100,000 public authorities, because we are not only talking about central government today but schools, the NHS, local authorities and even some publicly owned organisations, so individual costs will be borne by individual departments. In the Cabinet Office, there is also a dedicated unit, because we are responsible overall for the Act, which is why I am answering Questions. But a lot of freedom of information requests are actually dealt with by civil servants as part of their day-to-day job, because they have to comment on where there are policy issues or advice to Ministers that it would be difficult to make available. Obviously, as the Minister, I try to encourage them to make things available wherever possible under the Act.

My Lords, I was pleased to hear the Minister say that she supported freedom of information. Will she continue to shout that loud and clear? I was the author of the original White Paper, and we made the point that unless our constituents and electors have knowledge, there cannot be democracy. I hope she will make that point loud and clear.

I support the noble Lord. I think this was probably his approach when he conceived the legislation, which is not entirely easy because of the burdens. You have to have a balance between letting sunlight in wherever we can by making things available—not using them as an excuse for cover-ups; we have perhaps had too many of those historically—and keeping secret private advice to Ministers so that they can take decisions in an objective fashion, consider options that are not always welcome and come to the right conclusions. I think that is very important, and I speak as someone who, strangely, has been both a civil servant and a Minister.