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19 November 2015

NMA: FOI Should be Extended to Keep Public “Ever More Informed”

The News Media Association has called for the Freedom of Information Act to be extended to keep the public “ever more informed” about the workings of public bodies and able to hold power to account.

In its submission to the Independent Commission on Freedom of Information’s call for evidence, the NMA has highlighted the power of FOI to inform the public, arguing that it acts as a powerful incentive for public bodies to improve performance and reduce wastefulness.

Lucy Gill, NMA legal policy and regulatory affairs advisor, said: “Few pieces of legislation have been as effective at exposing Government waste as the FOIA – which is surely a major reason why public authorities don’t like it.

“By dragging information about incompetent or extravagant spending to the fore, FOI puts authorities under pressure to address waste and pre-empt it in future.”

The NMA points towards the strong public interest of FOI stories such as the revelation that RAF pilots were involved in the bombing of Syria without Parliamentary approval, the existence of cracks in the nuclear power plant at Hinkley Point and the revelation that over 3,000 police officers in England and Wales were under investigation for alleged violence against members of the public.

The strong public benefit of FOI, the NMA says, far outweighs the “tiny fraction” of public bodies’ budget that is spent on FOI requests and proposals to charge for FOI requests would be a “tax on a democratic right.”

Charges would be a “draconian and backward step” and a “tax on a democratic right.” The introduction of fees in Ireland in 2003, in space of a year, resulted in requests from public fell by 75 per cent and from media by 83 per cent.

Charging for FOI requests would “represent the triumph of a wilfully blinkered view of FOI that only sees costs and burdens and ignores the great value to society and the economy of openness, scrutiny and accountability,” the NMA added.

“Considering these benefits, the tiny fraction of an authority’s budget that is spent on FOI represents great value for money,” the NMA says. The Information Commissioner has noted that councils and public authorities do not make full use of the Act’s provisions to minimise “the burden” such as refusing vexatious requests.

The NMA said: “Diluting or reversing aspects of the Act would be a quixotic attempt to go against the grain of irreversible cultural and social change. A far better idea would be to look at the ways in which the Act could be extended so that it keeps up with the public’s evermore informed and discerning expectations of those in authority.”

The NMA has rejected proposals to water down the Act and instead called for the Act to be extended to cover private sector companies contracted to carry out public services and for a statutory limit on the length of time that public authorities can spend carrying out a review of a refusal notice.

“In order to persuade, the critics of the FOIA will need to demonstrate that cases are being wrongly decided; that injudicious FOI releases have been derailing policies and sent the sense of collective responsibility of sitting Cabinets crashing down.

“They will also need to demonstrate that claims of a chilling effect are grounded in reality and not in myth. Nothing less will do, as FOI is a democratic right and its weakening could only be justified on the very strongest evidence.”

The NMA argues that “public interest hurdles” that journalists have to clear in order to obtain disclosure of internal Government deliberations, policy advice, correspondence with stake-holders, risk registers and Cabinet minutes are more than sufficient to protect sensitive information from being disclosed.

The “safe space” for policy makers during the period when a policy is being formulated is strictly observed and there is no need to strengthen it, the NMA added, saying there is no evidence that disclosures have derailed policy or destabilised the relevant Government department.

The NMA calls for a speedier resolution of FOI requests and proposed a statutory time limit on the length of time that public authorities can spend carrying out an internal review of a refusal notice.

The layers of oversight in the appeals process should be maintained to protect robust scrutiny of decisions, the NMA said, adding that a “significant percentage” of the Information Commissioner's decisions already fall in favour of protecting the policymaking processes and deliberative space.

Strengthening the Ministerial veto, is unnecessary, the NMA argues, and the recent example of the Government using the veto to block the release of Prince’s letters was “lengthy, expensive and completely backfired.”

“It is very difficult to see in what other circumstances it would be reasonable not to carry out the ruling of a court that has heard the evidence and tested the arguments. Critics of the judgment will need to explain what those are,” the NMA added.