Senior local authority officials are lobbying to relax freedom of information (FoI) law so that they can increase charges, delay responses and reject more requests as “vexatious”.
Two groups representing council managers have made a submission to a Holyrood committee investigating whether FoI law should be changed. They say that the costs of responding to FoI requests have been “significantly underestimated” and complain about having to deal with “highly disgruntled individuals”.
Their complaints, however, have been countered by the Scottish Information Commissioner, Daren Fitzhenry, who strongly defends the current legislation. Campaigners promise to oppose any attempts to diminish people’s rights to access information.
The Ferret reported on 4 June that 40 journalists had joined together to call for FoI law to be updated, strengthened and expanded. They accused local authorities, along with the Scottish Government, Police Scotland, the NHS, universities and others of delaying, mishandling and refusing FoI requests without good reason.
Journalists call for reform to stop public agencies blocking freedom of information
The new submission is jointly from the Society of Local Authority Lawyers and Administrators in Scotland (Solar) and the Society of Local Authority Chief Executives and Senior Managers (Solace Scotland).
They have written to the Scottish Parliament’s public audit and post-legislative scrutiny committee which is reviewing the 2002 Freedom of Information (Scotland) Act (FoISA). The council officials want to make the law more “flexible” and have a “more realistic approach to fees and charging”.
Solar and Solace contended that “the resource implications of FoISA have not been adequately addressed – or indeed, addressed at all”. The current rules allowing them to charge for requests that cost over £600 to answer are “effectively pointless in practice”, they said.
The cap imposed on the amount that can be charged for staff time – £15 an hour – is “artificially low”, they argued. The 40 hours of staff time they are obliged to utilise before they can ask requesters to pay “still represents a significant diversion of resources to something which may only be of interest to one individual.”
Council officials urged ministers to make use of their powers under section 12 of FoISA to lump together costs where two or more requests are made by one person to make them easier to refuse. This was “to address the scenario where councils are on the receiving end of orchestrated campaigns of FoI requests for broadly the same material,” they said.
“We also feel that it would be helpful for authorities to be able to extend the timescale for compliance under FoISA for particularly complex cases, as is currently the case under the Environmental Information Regulations.” Allowing longer delays would not be “abused”, they claimed.
Solar and Solace suggested that there had been “misuse” of FoI by people who may genuinely have believed they were victims of misconduct. “A review of the current very high threshold for declaring a request to be vexatious would be welcome,” they argued.
“We are also conscious that authorities occasionally have to deal with highly disgruntled individuals who will pursue any avenue of complaint open to them regardless of the merits of their case, and FoI has created another such route for these individuals, some of whom use FoI as a weapon to punish local authorities for supposed misdeeds.”
What vexatious means is not defined in FoI legislation. According to the information commissioner, it could include requests which impose a significant burden on public authorities, have no serious purpose or value, are designed to cause disruption or annoyance, or are
manifestly unreasonable or disproportionate.
Council officials accepted that FoI law had “clearly made the public sector more transparent”. But they insisted that “the resource implications for local authorities in complying with this legislation have been significantly underestimated.”
They added: “No additional resources were made available to implement this legislation so all the resources required to comply have had to be diverted from other front line services.”
Solar and Solace stressed that FoI law had been “broadly positive” in making information more accessible to citizens. “However, it would perhaps be beneficial to review some elements – particularly where there have been unintended, or at least unforeseen, consequences,” a spokesperson for both groups told The Ferret.
“For example, the resource implications of FoISA remain a challenge for local authorities, particularly in relation to vexatious requests. A degree of flexibility in the timescales for dealing with the most complex cases could potentially benefit both public bodies and requestors.”
Scottish Government breaching freedom of information law, says watchdog
But the information commissioner, Fitzhenry, pointed out that public expectations had changed and they now expected more information to be released. “It is important that this is recognised and supported,” he said.
“FoI should be viewed as being a key service to the public, and while there is a cost associated with this, it must be balanced against the benefits that FoI brings, to the public, requesters, and the authorities themselves. It is therefore important that authorities do provide appropriate resource and look at their procedures to make sure they are efficient as well as effective.”
He called on councils to adopt “a more open culture” by pro-actively publishing information of public interest.
According to Fitzhenry, the £600 charging limit “strikes the right balance between ensuring authorities do not have to spend inordinate amounts of time complying with FoI requests, and not preventing requesters from accessing information.”
He rejected the idea of delaying responses. “We think that the current system with an emphasis on a prompt response and an upper time limit of 20 working days is a system that provides a workable balance,” he told The Ferret.
He also warned against making it easier to refuse requests as vexatious. “We have cautioned against the suggestion that some requests, despite not being vexatious are, by virtue of their subject matter, unworthy requests,” he said.
“To allow authorities to refuse a request on the basis that it is not sufficiently serious would be a major retrograde step, allowing authorities to go back to a position of deciding what the public should see, rather than what they want to see.”
The Campaign for Freedom of Information in Scotland pointed out that governments get “nervous” when people have rights that are backed by law. “We oppose all attempts to diminish the right of people to enforce transparency and accountability in elected government in Scotland,” said convener, Carole Ewart.
“The focus of the campaign remains on extending and improving the rights regime in Scotland.”
She added: “Within local authorities there needs to be a change in culture and practice so that far more information is pro-actively published and jobs are created to process FoI requests lawfully.”
The full submission on freedom of information by local authority officials
FOIA Submission SOLAR and SOLACE (Text)
Photo thanks to Scottish Parliament.
Very interesting piece but there is another side to this which I witnessed first hand, as a councillor in Argyll & Bute.
Officials there used all sorts of reasons to keep things secret which did not need to be secret. As one example if someone was buying property from them, the papers were always exempt, ie not available to press and public. This was legal but these transactions did not need to be exempt.
Other councils had a condition of openness in such transactions so prospective purchasers knew up front the details of the transaction would be public. Argyll & Bute refused to do this so, inevitably, this made people curious and FOIs were the result.
A prime example of this was the sale of Castle Toward in what was then my ward. It was sold after the council stymied a hugely well supported community buyout and even now the council refuses to give details.
I would be happy to share this and other information with The Ferret to demonstrate how the actions of the very officials who now complain about FOI law are themselves the generators of FOI requests.
They are the problem and, if anything, the legislation needs strengthened, not weakened.
Michael Breslin