As the department for constitutional affairs seeks to restrict requests made under the freedom of information Act, Derek Bedlow asks whether we are taking a backwards step


When the Freedom of Information Act 2000 was finally implemented on 1 January 2005, the Lord Chancellor, Lord Falconer, heralded it as ‘one of the most generous freedom of information regimes in the world’. Fast forward two years, however, and the Department for Constitutional Affairs (DCA) is seeking to put limits on the number of requests that individuals can make under the Act. Has it become a victim of its own success?



The Act was implemented, in the government’s own words, to strengthen the link between the state and the citizen. Unfortunately, from the DCA’s point of view, too many citizens, or at least the journalists among them, have been taking advantage of their new rights – and now the government wants to stem the flow a little bit.



However, the DCA’s own statistics show that, with the exception of the Act’s first month of operation (nearly 14,000 applications were made in January 2005), the number of information requests made under the Act has remained pretty level since it came into force. Around 8,000 are received per month, split fairly evenly between central government departments – with the Ministry of Defence and the Home Office attracting the most enquiries – and other public bodies such as local government and regulators.



The Act already allows public authorities to refuse applications that are likely to cost more than £600 (£450 for non-central government departments) to carry out, based on a rate of £25 per hour. Under plans put out for consultation last month, this threshold will not change, but the range of activities that public authorities will be able to count towards this limit is proposed to expand to include time spent in consideration of whether a request should be granted, as well as the actual search costs.



The second strand of the reforms is to prevent vexatious or serial applicants from making too many applications. The number of claims an organisation or related persons makes within a 60-day period will be aggregated, giving the public sector organisation the right to refuse requests if they cumulatively break the £600 or £450 limit.



However, the relatively small cost savings – £12 million – that the changes are anticipated to achieve have led to some suspicions that the reforms are more about saving the government embarrassment than cash. But while the early adopters are journalists, the government may be heading off an anticipated rise in requests as business increasingly see the benefits of the Act. In Canada, 41% of requests are from business, while in the US, an entire research industry has sprung up to make the most of the country’s long-standing freedom of information laws. In the UK, although the government specifically said the Act should, among other things, be used as a tool by businesses, the take-up has been relatively slow so far. Companies are reluctant to be seen to be making freedom of information requests for commercial purposes and some public service bodies, most notably the NHS, have been publicly critical of the use of the Act in this way.



This is changing quickly, says Paul Dacam, commercial dispute resolution partner at City firm Lovells, as businesses see their competitors gain an advantage through using the Act. ‘In other jurisdictions where similar legislation has been introduced, the heaviest initial use of it has been by journalists, but over time business has come to appreciate the value of making freedom of information requests,’ he says.



The main business uses of the Act are threefold – to gain information on how to tender for public sector contracts; to get information on policy developments that may affect a particular sector; and, for regulated industries, to gain an insight into the criteria that regulators apply when awarding licences.



However, the Act brings dangers as well as opportunities. While it gives companies the chance to examine some of the contractual relationships that public sector organisations have with their suppliers, it can also make some of the information that those same companies have supplied to local authorities in the course of tendering available to competitors. A significant part of the work for private practice lawyers in this area is the protection of commercially sensitive information that businesses have submitted to public authorities from becoming public knowledge.



‘One problem for companies is that the act is retrospective,’ says Liz Fitzsimons, a senior associate in the information law team at Eversheds. ‘If the information is held by a public authority, then it’s available even if it was submitted before the Act came into force. Public sector organisations should protect truly confidential information as a matter of good practice, but there’s no hard legal obligation on them to do so under the Act and no recourse under the Act for an affected business if sensitive information is put into the public domain – although there may be an actionable breach of confidence or similar right or action outside the Act. Companies are aware of that and are becoming more sophisticated about the information they submit to public authorities.’



Another of the government’s claims for the Act was that it would herald ‘an important change of culture towards official information for all public authorities’. The results thus far, say lawyers, have been a mixed bag, with some public authorities embracing the new ethos enthusiastically, while others, most notably central government departments, still clinging onto their traditional ‘need to know’ cultures. Even without the proposed amendments, some central government departments have been increasingly using the existing exemptions available to refuse requests, on ‘public interest’ or ‘commercially sensitive information’ grounds.



Much of local government, by contrast, seems to have signed up to the new age of transparency. One reason for the greater openness exhibited by local authorities is the Local Government Act 2000, which required councils to publish their policy decisions before the Freedom of Information Act was introduced. But while the latter has created a significant ongoing additional work-load for local authority legal departments – in terms of both preparing for its implementation and providing advice to staff on handling requests – there is little antipathy among local government lawyers to the principles behind the legislation.



‘The main problem with dealing with Freedom of Information Act requests is that they take other members of staff, such as social workers, away from their main work,’ says Shahzia Daya, senior solicitor at Bristol City Council. ‘But the Act has served a real purpose – we now make a lot of information available that would not have been disclosed before and that enables the public to participate much more in local government.’



One response of many local authorities has been to post increasing amounts of information on their websites in an effort to contain the number of requests they have to deal with. This approach seems to be bearing fruit – in the year to October 2006, while the number of requests received by central government departments increased by 8%, the total received by other public bodies fell by 17%.



An example of this process is Sedgefield Borough Council, which has posted comprehensive information about its staffing and internal structures on its website in an effort to reduce the burden of dealing with individual freedom of information requests. ‘We used to get a lot of requests from recruitment agencies, but that information should be on the website rather then the subject of requests,’ says Dennis Hall, solicitor to the council. ‘This is one of the way we can make information available without running up extra costs.’



The question is whether this new-found openness will survive the DCA’s amendments to the Act. Paul Dacam is certainly of the view that the proposals, if adopted, will give public authorities the opportunity to clam up again. ‘I find the proposals quite concerning,’ he says. ‘There are already provisions in the Act to deal with vexatious applicants. A lot of requests are quite complex and it won’t take long for public authorities to reach the threshold under the new rules. It will make it much easier for them to refuse requests and the DCA risks stifling many proper and legitimate enquiries.’



Only time will tell if the DCA, inadvertently or otherwise, has managed to put the freedom of information genie firmly back into its bottle.



Derek Bedlow is a freelance journalistAs the department for constitutional affairs seeks to restrict requests made under the freedom of information Act, Derek Bedlow asks whether we are taking a backwards step



When the Freedom of Information Act 2000 was finally implemented on 1 January 2005, the Lord Chancellor, Lord Falconer, heralded it as ‘one of the most generous freedom of information regimes in the world’. Fast forward two years, however, and the Department for Constitutional Affairs (DCA) is seeking to put limits on the number of requests that individuals can make under the Act. Has it become a victim of its own success?



The Act was implemented, in the government’s own words, to strengthen the link between the state and the citizen. Unfortunately, from the DCA’s point of view, too many citizens, or at least the journalists among them, have been taking advantage of their new rights – and now the government wants to stem the flow a little bit.



However, the DCA’s own statistics show that, with the exception of the Act’s first month of operation (nearly 14,000 applications were made in January 2005), the number of information requests made under the Act has remained pretty level since it came into force. Around 8,000 are received per month, split fairly evenly between central government departments – with the Ministry of Defence and the Home Office attracting the most enquiries – and other public bodies such as local government and regulators.



The Act already allows public authorities to refuse applications that are likely to cost more than £600 (£450 for non-central government departments) to carry out, based on a rate of £25 per hour. Under plans put out for consultation last month, this threshold will not change, but the range of activities that public authorities will be able to count towards this limit is proposed to expand to include time spent in consideration of whether a request should be granted, as well as the actual search costs.



The second strand of the reforms is to prevent vexatious or serial applicants from making too many applications. The number of claims an organisation or related persons makes within a 60-day period will be aggregated, giving the public sector organisation the right to refuse requests if they cumulatively break the £600 or £450 limit.



However, the relatively small cost savings – £12 million – that the changes are anticipated to achieve have led to some suspicions that the reforms are more about saving the government embarrassment than cash. But while the early adopters are journalists, the government may be heading off an anticipated rise in requests as business increasingly see the benefits of the Act. In Canada, 41% of requests are from business, while in the US, an entire research industry has sprung up to make the most of the country’s long-standing freedom of information laws. In the UK, although the government specifically said the Act should, among other things, be used as a tool by businesses, the take-up has been relatively slow so far. Companies are reluctant to be seen to be making freedom of information requests for commercial purposes and some public service bodies, most notably the NHS, have been publicly critical of the use of the Act in this way.



This is changing quickly, says Paul Dacam, commercial dispute resolution partner at City firm Lovells, as businesses see their competitors gain an advantage through using the Act. ‘In other jurisdictions where similar legislation has been introduced, the heaviest initial use of it has been by journalists, but over time business has come to appreciate the value of making freedom of information requests,’ he says.



The main business uses of the Act are threefold – to gain information on how to tender for public sector contracts; to get information on policy developments that may affect a particular sector; and, for regulated industries, to gain an insight into the criteria that regulators apply when awarding licences.



However, the Act brings dangers as well as opportunities. While it gives companies the chance to examine some of the contractual relationships that public sector organisations have with their suppliers, it can also make some of the information that those same companies have supplied to local authorities in the course of tendering available to competitors. A significant part of the work for private practice lawyers in this area is the protection of commercially sensitive information that businesses have submitted to public authorities from becoming public knowledge.



‘One problem for companies is that the act is retrospective,’ says Liz Fitzsimons, a senior associate in the information law team at Eversheds. ‘If the information is held by a public authority, then it’s available even if it was submitted before the Act came into force. Public sector organisations should protect truly confidential information as a matter of good practice, but there’s no hard legal obligation on them to do so under the Act and no recourse under the Act for an affected business if sensitive information is put into the public domain – although there may be an actionable breach of confidence or similar right or action outside the Act. Companies are aware of that and are becoming more sophisticated about the information they submit to public authorities.’



Another of the government’s claims for the Act was that it would herald ‘an important change of culture towards official information for all public authorities’. The results thus far, say lawyers, have been a mixed bag, with some public authorities embracing the new ethos enthusiastically, while others, most notably central government departments, still clinging onto their traditional ‘need to know’ cultures. Even without the proposed amendments, some central government departments have been increasingly using the existing exemptions available to refuse requests, on ‘public interest’ or ‘commercially sensitive information’ grounds.



Much of local government, by contrast, seems to have signed up to the new age of transparency. One reason for the greater openness exhibited by local authorities is the Local Government Act 2000, which required councils to publish their policy decisions before the Freedom of Information Act was introduced. But while the latter has created a significant ongoing additional work-load for local authority legal departments – in terms of both preparing for its implementation and providing advice to staff on handling requests – there is little antipathy among local government lawyers to the principles behind the legislation.



‘The main problem with dealing with Freedom of Information Act requests is that they take other members of staff, such as social workers, away from their main work,’ says Shahzia Daya, senior solicitor at Bristol City Council. ‘But the Act has served a real purpose – we now make a lot of information available that would not have been disclosed before and that enables the public to participate much more in local government.’



One response of many local authorities has been to post increasing amounts of information on their websites in an effort to contain the number of requests they have to deal with. This approach seems to be bearing fruit – in the year to October 2006, while the number of requests received by central government departments increased by 8%, the total received by other public bodies fell by 17%.



An example of this process is Sedgefield Borough Council, which has posted comprehensive information about its staffing and internal structures on its website in an effort to reduce the burden of dealing with individual freedom of information requests. ‘We used to get a lot of requests from recruitment agencies, but that information should be on the website rather then the subject of requests,’ says Dennis Hall, solicitor to the council. ‘This is one of the way we can make information available without running up extra costs.’



The question is whether this new-found openness will survive the DCA’s amendments to the Act. Paul Dacam is certainly of the view that the proposals, if adopted, will give public authorities the opportunity to clam up again. ‘I find the proposals quite concerning,’ he says. ‘There are already provisions in the Act to deal with vexatious applicants. A lot of requests are quite complex and it won’t take long for public authorities to reach the threshold under the new rules. It will make it much easier for them to refuse requests and the DCA risks stifling many proper and legitimate enquiries.’



Only time will tell if the DCA, inadvertently or otherwise, has managed to put the freedom of information genie firmly back into its bottle.



Derek Bedlow is a freelance journalist