'Delaying tactics' and 'regular frustration' - journalists' FOI tales

Journalists continue to come up against "delaying tactics" and other "operational weaknesses" when making Freedom of Information (FOI) requests - with some saying their requests continue to be treated differently from other members of the public.

A wide range of news organisations have submitted comments to the justice select committee ahead of a parliamentary debate on whether the Freedom of Information Act is working properly, seven years after it came into force.

The complaints from editors and reporters generally relate to delays, obstructions and the over-use of exemptions to justify not releasing information.

The media respondents to the consultation were strongly against proposals to charge a fee for requests or tighten up the cost cap applied by authorities when assessing whether to reply to a request for information.

Here is a round-up of some of the key concerns from journalists. The full 500-page document can be found on the parliament website, as a PDF.

There are some public authorities which seek to observe the spirit of the act, while other grudgingly observe the letter onlyDoug Wills

Delays

Perry Austin-Clarke, editor of the Bradford Telegraph and Argus, said: "In terms of issues with the current legislation, one point that can cause us problems is when a public body which has been issued with an FOI request comes back to us very close to the 20-day deadline asking for clarification of a detail, often a very minor detail, in the request. By replying within the 20 days, they have met their deadline but that then restarts the 20 day period in which they have to respond. In some cases this is a genuine attempt to seek clarity but it can be, and we believe is, also used as a delaying tactic. One suggested improvement would be a shorter deadline for any clarification requests to avoid any abuse of this."

The Independent and Evening Standard group managing editor Doug Wills said: "Within the current framework of the act we find regular frustration - with requests often dealt with as slowly as possible and exemptions cited as justification for not providing the requested information. There are some public authorities which seek to observe the spirit of the act, while other grudgingly observe the letter only."

Financial Times editor Lionel Barber said requests often came back late and there was "too little focus" on combating this. He said: "The 20-day limit on replies would be sufficient, if it were adhered to. We believe that delays drive the proliferation of requests by journalists, who may make several requests to secure the necessary information, in the hope that one will come back on time."

Not 'applicant-blind' enough

Barber added: "The central problem for the press in using the Freedom of Information Act stems from the fact that journalists are treated differently to other requesters. Press officers are informed about journalists' inquiries. An innovation worth consideration would be to make requests genuinely requester-blind. Only the civil servant who fields the request should know the requester's identity."

Kent Messenger Group political editor Paul Francis agrees: "There is a view - reinforced by evidence - that while the Act is motive blind, the reason for these delays can be because responses to requests made by journalists are not sent out until they have been 'cleared' or reviewed by politicians/councillors. Our experience is that many requests either are not responded to within 20 days or if they are, the response comes on day 20 – even relatively straightforward ones.

Telegraph Media Group said: "It has been suggested that 'identity checks' could be made on those making FoI requests. This is worrying, and we fundamentally oppose it. If the information is available, it should be of no significance who the requestor of the information is, or why they want to know that information. Notwithstanding the fundamental argument, implementing such a system would only serve to increase both the costs and time in responding to requests."

Press officers sometimes ask journalists to submit FOI requests rather than seek the information via the press officeNewspaper Society

The role of press officers in the FOI procedure

The Newspaper Society, which represents local and regional newspapers, said: "More public authorities and public services now employ more press officers, but editors feel that their proliferation has tended to obstruct rather than facilitate the flow of information to the public, especially where their priorities are reputation management. Some members say that press officers sometimes ask journalists to submit FOI requests rather than seek the information via the press office."

Sunday Telegraph deputy news editor Ben Leapman, one of the three journalists behind the campaign for MPs' expenses to be made public, confirmed: "Many public bodies now ask journalists to put in FOI requests for information which they would, prior to 2005, have released through their press offices. It would have used just as much staff time for press officers to obtain and release the information under the old system. Thus these requests are not an additional cost, merely a switch of cost centre within the organisation."

Lack of guidance or assistance

The Press, in York, said public authorities rarely provided advice and assistance in how best to obtain the requested information - which is a requirement under Section 16 of the act. The paper said: "Our local police force is particularly poor in this regard, consistently failing to offer assistance on how a request could be amended, or on which information similar to that requested could be released. More often that not, we receive a response far later than the 20th working day and with a straight refusal, devoid of any assistance."

Lengthy appeals

Kent Messenger Group political editor Paul Francis said: "The appeals process through the ICO [Information Commissioner's Office] is time consuming and often takes months to resolve. Our experience is that internal appeals often fail or if they succeed, the explanation will often bear out the suspicion that initial refusal was a holding position or made in the hope that the appeals process would not be pursued."

Sunday Telegraph deputy news editor Ben Leapman said: "There ought to be a statutory time limit for organisations to carry out internal reviews. There's no point requiring organisations to respond to the initial request within 20 days, but then letting them consider their internal review for eight months."

Other concerns

The Society of Editors said: "The experience of our members and their journalists in using the Act has revealed a number of operational weaknesses. For example, it has proved to be feeble when applied to requests aimed at finding out specifically why certain decisions were taken. This is a fundamental element of bread-and-butter reporting - addressing the public's right to know how its money is being spent, and the reasons behind those decisions."

The Herald and Times Group added: "We have reservations about the clause of commercial confidentiality which can mask important spending decisions which should be exposed to public scrutiny. We suggest the onus should be on public bodies to prove that commercial confidentiality is a real issue."

No to potential charges

Financial Times editor Lionel Barber said: "At present, cost limits only apply to the expense of locating and extracting information, but not redaction or other costs. These expenses must not be rolled within the cost ceilings. Allowing officials to count such costs towards the limit would encourage them to consider exemptions or redact heavily in order to waste time, and thereby hit the cost limit without releasing any information."

The Press, in York, said: "We do believe that the imposition of charges to any applicant would be a retrograde step, in that it would deter applicants and therefore potentially prevent information that should be made public from being disclosed. Similarly, we believe that the reduction of the cost threshold for public authorities, without a corresponding duty on them to provide a cost breakdown, would enable authorities to withhold information without first giving adequate consideration and deliberation to the case."

FOI scope should be extended

On future improvements to the act, The Herald and Times Group said: "We believe it could be improved by extending it to cover arms-length organisations and other publicly-funded bodies which at present do not come under the terms of the act. Basically, any freedom of information legislation should apply to organisations which rely on public funds, in the interests of transparency."

Sunday Telegraph deputy news editor Ben Leapman said: "I would like to see some extension to the scope of FOIA, in particular to cover private‐sector and voluntary organisations that are performing public services on contract for public‐sector organisations funded by the taxpayer. I also believe housing associations should be covered. There is a strong public interest here in ensuring transparency, not least because scrutiny is required to ensure that the services are being performed well and efficiently. It is unfortunate that at present the transfer of work from the public sector to the  private or voluntary sector, or the transfer of housing stock from councils to housing associations, is accompanied by a reduction in transparency."

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