As part of the forthcoming Multistakeholder Forum on Tuesday next week, there will be a 25 minute (or so) conversation with the Minister on open government.
Really keen to know what you would you say and what your priorities are.
So what would you seek to ask the Minister to commit to?
What changes would you like to see and how could she start the process of change?
Be as bold as you like. And if you post your ideas in here quickly (ie. in the next day or so) we will try to work some of them into the conversation that takes place.
Of course there will be a published write-up of the conversation, and we are seeking to make future events more open so more can attend.
We think the minister should commit to measures to strengthen the Freedom of Information Act. This needs to be a priority because:
A key Independent Reporting Mechanism (IRM) recommendation for the UKās next National Action Plan (NAP) is to āAmend the Freedom of Information Act to ensure timely responses to information requests and extend its scope to cover private entities that provide public servicesā.[1]
The government proposes to exclude the new Advanced Research and Invention Agency responsible for Ā£800m of public money from the FOI Act altogether, which is not the action of an āopen governmentā.
It would help to restore trust with civil society and the wider public amid concerns about deteriorating compliance with and the governmentās commitment to FOI. The percentage of requests granted in full by central government has declined from 66% in 2005 to 43% in 2019. The percentage withheld in full has doubled from 18% to 39% over the period.[2]
In the history of the UKās OGP membership, there have been very few FOI commitments and they havenāt improved its effectiveness:
The IRM found that the commitment to introduce a revised s45 FOI Code had only a āmarginal impactā on access to information.[3] Civil society participation in this commitment was limited to being invited to contribute to a public consultation on a new draft code. No significant changes were made following the public consultation and the revised code was weaker in several key areas than the 2004 edition it replaced.
The voluntary approach of encouraging āoutsourced companies to maintain the levels of transparency provided by the FOI Act through contractual clausesā, as opposed to achieving this by amending the Act as civil society and the Information Commissioner have proposed, has not worked. The government developed a model disclosure clause to be used in government contracts worth over Ā£10 million. The ICO reported in 2019 that it could not find a single example of this clause being used in published contracts worth over Ā£10 million.[4]
A commitment to introduce āmaximum time limits for how long public bodies can review appeals against FOI Act refusalsā in the first NAP did not result in the introduction of a statutory time limit and delays at the internal review stage continue to be a problem.[5]
Recommendations made by the Justice Committee in 2012 and Independent Commission on Freedom of Information in 2016 to improve FOI legislation, in particular to address long delays in responding to requests and completing internal reviews, havenāt been implemented.[6]
Notes:
[1] The IRM report recommended that "the UKās next action plan include commitments to amend and strengthen the countryās FOI legislation to ensure timely responses to information requests, especially given delays resulting from the pandemic. Also, as suggested in the OGNās 2018 manifesto, the IRM recommends ensuring that the UKās FOI regime covers private entities that provide public services. As a basis, the UK government could use the recommendations from the ICOās 2019 report to Parliament for strengthening the FOI legislation and outsourcing to public services.āhttps://www.opengovpartnership.org/documents/united-kingdom-design-report-2019-2021/
Some great ideas here. Thanks to both you and Kevin.
Timely responses
Iām not sure that amending legislation would improve response times. FOIA s.10 already requires responses, āpromptly and in any event not later than the twentieth working dayā. The code of practice issued by the Cabinet Office under s.45 says these should any internal review should be complete within 20 working days. So anyone on the ball can get their information within 40 working days right? Wrong! The bit which takes at least six months is when the public authority give totally pathetic excuse for not disclosing information and it has to be referred to the overworked and under-resourced Information Commissioner to investigate. The ICO implemented a new triage system about 18 months ago but that doesnāt alter the fact that they are under-resourced. I asked for a copy of the report into potential bullying by Priti Patel last September. It made it through triage and if Iām lucky I might get a decision notice some-time this year. An appeal can delay disclosure for a further year. Changing the legislation wonāt fix that.
So, rather than a change to s.10, how about pushing for a properly funded regulator but also remind the minister that the Information Commissioner herself has asked for reforms around that Ā£284 billion black hole of outsourcing. (That was Jan 2019. You can probably double it now.) Iām not sure the current government has any appetite for transparency, but that shouldnāt stop citizens continually demanding it.
Best wishes
James
PS donāt let me anywhere near a meeting with a government minister. Iām just a disruptive trouble maker.
We think amending the legislation would improve response times. This is because:
Section 10(3) of the FOI Act provides that the 20 working day time limit can be extended for an undefined āreasonableā period where a public authority is considering the Actās public interest test.
This provision is abused and used to delay initial responses to requests. The Information Commissioner recommends that extensions "should normally be no more than an extra 20 working daysā. In 2019, 40% of the extensions that were taken by government departments exceeded this recommendation.
There is no statutory time limit for internal reviews. The s45 code is good practice and canāt be enforced by the Information Commissioner. 38% of internal reviews by government departments in 2019 took longer than 20 working days.
The effect of (1) and (2) can be that people have to wait many months before they can complain to the Information Commissioner. Both the Justice Committee and a government appointed Commission that reviewed the Act have recommended a 20 working day limit on extensions and internal reviews be put into statute.
We agree the ICO is under-resourced and complaints take far too long to be investigated. This also needs to be addressed.
Youāre right. I forgot about the āreasonableā extension for public interest tests. Perhaps this is because Iāve personally only been on the receiving end of this once in a* lot* of requests. Possibly the public authorities I mostly deal with (academy schools who havenāt figured out that independence comes with responsibilities) donāt know all the tricks in the book. A good point also that the code of practice issued by the Cabinet Office is right up there with Captain Barbossaās pirateās code; āmore what youād call āguidelinesā than actual rules.ā
In conclusion, Iām totally in agreement with all of your original suggestions. Thanks for proposing them.
Just to reply to this @Ruchirshah Basically after consulting with the rest of the Committee and secretariat, there was a majority view that Chatham House would enable civil servants to be more open with their answers.
But it is an important point so letās review as process moves forward.
Apols of this is too late, but if the issue of Aria is raised with the Minister, please point out that the ICO have made it clear in a letter to me that they were not consulted about excluding Aria from FOI and donāt think there is any need to exclude it from FOI.
Just to add @katherinegundersen@TomBrake and all, there is a proposed thematic group on FOI too, so there will lots of opportunities to work through some of this with civil servants also.
