CFOI evidence to Greensill inquiry calls for FOIA to be strengthened

UK Open Government Network
1

Dear all,

The Campaign has submitted evidence to the Public Administration and Constitutional Affairs Committee’s inquiry into the propriety of governance in light of Greensill.

It says that without FOIA the extent of the company’s efforts to persuade the government to provide it with financial support, and the extraordinarily insistent lobbying by the former prime minister David Cameron may not have been uncovered, let alone documented in such detail.

It adds that FOIA contains the elements of a highly effective tool to probe lobbying but it needs to be strengthened and more vigorously enforced.

The submission highlights three specific issues that need to be addressed to improve the Act’s effectiveness:

  • The Act’s limited application to information held by public sector contractors.
  • Government plans to exclude two proposed new public authorities from FOIA, a move which suggests that more may follow.
  • The substantial delays in responding to FOI requests, preventing the timely release of information.

FOIA delays

The submission contains a new survey of the delays at each stage of the FOI process.

We examined the time taken to deal with the last 20 FOIA or EIR tribunal cases involving central government departments dealt with by the First-tier Tribunal before the first pandemic lockdown in March 2020. This excluded delays resulting from the lockdown itself.

We found:

  • Departments took up to 610 working days (a staggering two and a half years) for their initial response to FOI requests.
  • Only 9 of the 20 requests were answered within the standard 20 working day period.
  • The longest time between making the request and receiving a tribunal decision (after a challenge to the Commissioner’s decision) was four years and nine months. The average was about two years.

The survey illustrates how common and significant delays were even before the pandemic. The cases surveyed show that FOI time limits were breached by government departments more often than they were complied with. A department that deliberately sought to avoid releasing contentious information at a sensitive time would barely stand out against the backdrop of routine delays.

Recommendations

The submission calls for:

  • The Information Commissioner’s Office (ICO) to make use of enforcement notices – a powerful tool at its disposal which it has rarely employed.
  • Greater government funding for the ICO’s FOI work. Our analysis shows that the Scottish Information Commissioner enjoys six times more funding than the UK Commissioner on a per case basis, an indication of how underfunded the ICO is.
  • FOIA time limits to be strengthened, as recommended by two major inquiries.

Both the Justice Committee in its 2012 post-legislative review of FOIA and the 2016 report of the government appointed Independent Commission on Freedom of Information called for FOIA time limits to be tightened up to reduce delays. Implementing these long-ignored recommendations would be an important step towards ensuring that FOIA can provide effective and timely oversight of the conduct of public authorities.

The full submission is on our website.

Best wishes

Katherine

Katherine Gundersen
Campaign for Freedom of Information

Web: www.cfoi.org.uk | Updates: www.cfoi.org.uk/about/receive-cfoi-news | Twitter: http://twitter.com/CampaignFOI |

2

Katherine, thanks for this update. I am aware ARIA is to be exempt from FOI. What is the second public body? Tom

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Hi Tom,

The government is proposing to establish a new authority to investigate serious patient safety risks in the NHS. The proposed Health Service Safety Investigations Body (HSSIB) will publish a report on each investigation. But it would be prohibited from making public any other information held in connection with its functions, except in limited circumstances. The prohibition would remove the right of access to such information under FOIA and the right of individuals to see their own personal data under data protection legislation.

The prohibition is said to be necessary ‘to create a ‘safe space’ within which participants can provide information for the purposes of an investigation in confidence and therefore feel able to speak openly and candidly with the HSSIB.’ But it’s not limited to information that would likely to identify such a person.

It will apply to any information held ‘in connection with’ the HSSIB’s function that is not already published, whether or not it relates to an identifiable individual, whether or not it relates to an identifiable investigation, whether or not it is capable of deterring participants from speaking frankly to investigators or inhibiting investigators in reaching their conclusions or causing any other adverse effect at all.

We give some examples in our submission of the kind of disclosures which will be prohibited:

  • why HSSIB had decided not to investigate a particular incident
  • whether, and if so why, it had failed to follow its own published investigation procedures in a particular case
  • the length of any delays which had occurred in contacting key witnesses to an incident
  • whether and how a shortage of staff with particular skills had affected the conduct of a particular investigation
  • any internal HSSIB report examining its own shortcomings in carrying out its functions.

The HSSIB was originally to have been established by the Health Service Safety Investigations Bill which had its second reading the House of Lords on 29 October 2019. It’s now in the Health and Social Care Bill which will incorporate the earlier bill’s prohibition on disclosure.

Best,

Katherine

Katherine Gundersen
Campaign for Freedom of Information
Free Word Centre, 60 Farringdon Road, London, EC1R 3GA, UK
Web: www.cfoi.org.uk | Updates: www.cfoi.org.uk/about/receive-cfoi-news | Twitter: http://twitter.com/CampaignFOI |

4

Thank you Katherine.