Freedom of Information (FOI): Useful tool that’s failed to live up to our hopes

In the decade since the Freedom of Information Act was passed, the BBC is just one media organisation that has used FOI to unearth hundreds of stories. In this edited excerpt from a new book, FOI Ten Years on: Freedom Fighting or Lazy Journalism?, BBC specialist Martin Rosenbaum looks back on the scoops, the hurdles and hard lessons learned:

Stories obtained by the BBC using FOI since 2005 have covered a wide range of topics showing how far the law reaches into the operations of the public sector.

In the health area this has included revelations about delays in ambulance response and handover times and staff shortages in A&E. Police-related stories have included the ageing of police forces and the extent to which forces boost their detection rates by getting offenders to confess to other crimes.

Military stories have included drug taking by soldiers and misconduct on submarines. In transport, which makes of cars are most likely to fail MOT tests. In education, how many councils wouldn’t meet the government’s plans on infant school meals.

Then there’s the Home Office failing to collect fines imposed on companies employing illegal workers, and how the Foreign Office weakened its safety advice on travel in Thailand partly for commercial reasons.

That’s only a very small selection, but it’s enough to show that FOI has been a very effective device for the BBC on the right topics. (Other FOI-based stories have been collated on the BBC News website.)

These stories are often in some sense numerical in nature, possibly identifying the extent of an issue, exploring changes over time, comparing different localities, or collating local data to form a national picture. For the BBC, this can work particularly well. Recent examples are temporary closures of maternity units and rising numbers of parental fines for children’s poor school attendance.

Rarer (although still significant) are those stories which are based on quotes or extracts from documents, such as disclosures of internal discussion, records of meetings, exchanges of emails.

Before FOI came into force, this was the kind of revelation that I think was widely anticipated - certainly hoped for by many journalists and feared by many officials (as indeed it still is, from my discussions with them). The reality has failed to live up to those hopes and fears.

Establishing the pattern

In the first couple of years of FOI, it was unclear what kind of information was likely to be released. I certainly made requests then of a kind that I would avoid now as they would be pointless.

This uncertainty about how FOI should work was also reflected in the behaviour of public authorities that varied greatly in how they interpreted the new legislation. Some were recalcitrant in adapting to the Act, whereas others I found surprisingly open.

I was surprised to obtain extracts from the Special Branch personal protection file of the former prime minister James Callaghan. These papers (from the Metropolitan Police) showed that Lord Callaghan felt his level of protection after leaving office was inadequate, as well as providing an amusing account of the ‘embarrassing situation’ when a Jehovah's Witness proselytising door-to-door managed to evade the security precautions at his home.

This kind of access via FOI to old Special Branch documents is now much harder. The Met adopted a new, much more restrictive policy of arguing that SB work was so closely intertwined with the security agencies that SB records should share those agencies’ absolute exemption from FOI. This stance was upheld in a decision by the information commissioner in 2011.

In contrast, other public bodies have moved in the other direction, from obstructiveness to more openness. One example is the data held by the Vehicle and Operator Services Agency (VOSA), which administered the MOT system, on MOT pass/fail rates for different car makes and models.

In 2008 the BBC made an FOI request for these figures. But VOSA told us that it would be against the public interest to release the details of pass/fail rates by make, as it would damage the commercial interests of certain manufacturers. This position struck me as perverse and obstructive. VOSA maintained this case when we complained to the information commissioner. But its argument was dismissed by the commissioner, who ruled that VOSA should supply the information.

We published comparative data for popular models. It took 18 months to extract this information from the agency, but after that VOSA (now merged into the Driver and Vehicle Standards Agency) released the same data voluntarily and regularly.

Efficiency and delays

The FOI performance of public bodies depends not only on their attitudes but their organisational competence. This is very important in practice, to journalists. The information sought is often time sensitive. And if you’re not going to get what you want it’s good to know soon.

The main practical problem faced by journalists has been delay. A huge backlog of cases built up in the Information Commissioner’s Office, which meant that it was soon taking over a year for many complaints to be decided, especially for the trickier issues that media requests often involved.

In the worst example I faced, the ICO took four years and three months to consider the case, before then ruling in my favour. As the Cabinet Office then appealed fruitlessly to the Information Tribunal, it took altogether more than five and-a-half years for me to receive the information I asked for - the minutes of the 1986 Cabinet meeting at which Michael Heseltine had dramatically resigned as defence secretary over the Westland affair.

However, matters improved significantly after Christopher Graham became the commissioner in 2009 and focused effectively on tackling the backlog. Nevertheless there is still a lot of delay in the system.

Some key lessons learned

1. FOI is about accessing material that is actually held by a public authority (and not information that you think they should collate but they don’t, or opinions that haven’t been written down, or possible responses to hypothetical situations). A copy of a blank form can be a useful guide to the categories of data an authority collects for a particular purpose

2. Don’t rush into making FOI requests. Check what information is already published. And if the material you want isn’t already out there, a call to the press office might get it more quickly than a formal FOI request

3. Be specific. It’s crucial to think carefully and rigorously about the phrasing of a request to ensure it covers what is wanted, exactly and unambiguously. Try to use the jargon or phraseology that the authority itself employs to refer to the information concerned

4. Given the delays that can be involved, bear in mind that FOI is only of benefit for material that would still be of practical use in a few weeks or even months

5. Before sending a ‘round robin’ request to a large number of authorities, it is often worth sending a ‘pilot’ to a few of them to check the questions are sensibly phrased and effective

6. Make full use of the legal right (under Section 16 of the FOI Act) to advice and assistance from the public body on the best way to make a request (for example, on how to narrow a request to bring it under the cost limit). In practice, some FOI officers will be more helpful than others

7. Build relationships with FOI officers. Don’t shoot the messenger when you get an unwelcome answer. Think of FOI officers not as putting up obstacles but as providing a pathway to the material wanted. Sometimes they end up arguing the requester’s case within the authority to reluctant colleagues - so help them to do that.

FOI 10 Years on: Freedom Fighting or Lazy Journalism? is edited by Tom Felle and John Mair, and is published by Abramis Academic Publishing on 1 February. Martin Rosenbaum will join a panel debate on FOI at London’s City University on 4 February.

Our other blogs by Martin Rosenbaum

How to make the most of FOI requests

BBC News: Ten things we found out because of Freedom of Information