Westminster Legal Policy Forum: the future of freedom of information
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Speech by Lord McNally on the past and future of the Freedom of Information act and transparency
Thank you Lord Goodhart for your kind introduction, and to the Westminster Legal Policy Forum for inviting me to speak to you all today. I want to use this opportunity to talk about the future of Freedom of Information and the challenges we face in delivering greater openness to provide greater accountability and to foster innovation. In the coalition agreement, the government pledged to spread transparency to every part of public life, and we have made a strong start in achieving this goal.
How information is used, misused, hidden or shared is rarely out of the headlines. We have to think differently about information, to the way we did in the past. People expect more information, and modern technologies enable that information to be used and manipulated in new and interesting ways.
It is now more than a decade since I sat on the House of Lords Committee which considered the then Freedom of Information Bill in 1999; and on 1 January it will be 7 years since the Freedom of Information Act came into force. Since that time, government has become more open than ever, and in no small part that is due to the Freedom of Information of Act. Indeed, few will have predicted back in 1999 just how crucial a role FOI would come to play in making government open. The huge number of requests made each month illustrate this. My own department, for example, received 1748 requests in the first half of this year, one of the highest intakes in Whitehall.
I recognise that compliance with the legislation requires a considerable investment of time, effort and resources. Departments across Whitehall, the Ministry of Justice (MOJ) included, work hard to ensure that this important public service is delivered to a high standard, but most, the MOJ included, have room for improvement.
Nonetheless, as a longstanding enthusiast for transparency I am convinced of the benefits that Freedom of Information has brought. Certainly, I would not agree with Sir Arnold, when he said in the first episode of ‘Yes Minister’: “My dear boy, it is a contradiction in terms: you can be open or you can have government.”
I am delighted to have the opportunity, as a Minister, to help shape the next phase of Freedom of Information in this country. Not only is the government committed to the extension of the Act itself, but we are also moving well beyond the rights of access it provides through the wider Transparency Agenda.
Transparency agenda and the right to data
The government is continuing to make a wide range of data available proactively.
To take the criminal justice system as a case in point, in October last year we released court-level sentencing data for each Crown court for 2009, and in May this year we released data covering 2005 to 2010. This was made available in a user-friendly format on the Justice website and has proved to be significantly more popular than normal Ministry of Justice statistical releases.
Crucially, the data was released alongside the award-winning ‘You be the Judge’ tool which promotes public understanding of the sentencing process. Providing adequate contextual information to increase public understanding of the criminal justice system is key to making data meaningful to the public, and we plan to provide such information with every transparency data release.
In January this year, street-level crime information was made available to the public via the Police.uk website. This has proved extremely popular, with 430 million hits on the site since the launch. There is clearly a public demand for information of this type, and so in May next year we will be going a step further and providing justice outcome information on Police.uk. This will enable the public to see what happens after a crime is committed – police actions followed by justice outcomes – and reinforce the link between crimes being committed and justice being delivered.
The Ministry of Justice will also be releasing data on local re-offending rates on 27 October, which enable the public to see how individual prison establishments and Probation Trusts perform.And on 27 November, we will be publishing individual offender-level sentencing data by court so that the public will be able to see what sentences are being handed down in their local courts, and compare different courts on a wide range of measures, such as timeliness.
The Ministry of Justice is planning a significant release of individual court performance data in January that will enable local communities to find out how their local court is performing on a range of measures. The data will include, among other measures, information on case timeliness in criminal and civil courts and the proportion of cracked and ineffective trials at the Crown Court.
More generally, the Protection of Freedoms Bill, now in the House of Lords, includes a new Right to Data. This will ensure that public authorities make datasets available in a re-usable format, where they can, and make them available for re-use when releasing them in response to requests or through publication schemes.
These changes support our commitment to open up public authorities to greater scrutiny and allow the public to hold us to account. They will, we believe, bring real social and economic benefits by enabling businesses, non-profit organisations, volunteers and others to exploit datasets held by public authorities for social and commercial purposes.
The government wants to hear from you about how this policy should develop in the future. The Cabinet Office is currently running a public consultation on the government’s proposed approach to a transparency and open data strategy. Simply stated, the proposals outline how we will move to a position where most data held by public bodies and about public services will be available for re-use, except in very specific circumstances.
The public consultation closes on 27 October so you still have plenty of time to respond and help formulate the direction of government policy in this area.
Freedom of Information Act
These wider developments are very welcome, but I want to be clear that the original basic right under the Freedom of Information Act to request access to any recorded information remains very important. No matter how many datasets are published and made available for re-use, either proactively or as a result of the new right to data, there will always be a great demand for the release of other information – minutes of meetings, policy documents and the like – which falls outside the scope of these initiatives.
That is why, in line with the coalition agreement, the government is also taking steps to extend the scope of the Freedom of Information Act. The government has already extended the Freedom of Information Act to academy schools. We have introduced secondary legislation, which we expect to come into force in November, to extend the Act to the first 3 bodies considered to be performing functions of a public nature under section 5: the Association of Chief Police Officers, the Financial Ombudsman Service, and the Universities and Colleges Admissions Service. We are consulting with a range of further bodies about their possible future inclusion.
I think it’s fair to say that the responses to our consultations are not always especially positive. Bodies often have concerns around the burdens that Freedom of Information might cause, or that they might not be able to protect genuinely sensitive information adequately. The government will of course listen to such concerns. At the same time, however, we remain determined that the Act should be extended to bodies which perform public functions wherever appropriate so that their accountability before the public is enhanced. So it is my firm intention that the current section 5 order will be just the first in a range of initiatives to extend the Act’s scope.
In addition, the Protection of Freedoms Bill will extend the Freedom of Information Act to all companies wholly owned by any number of public authorities. The current arrangement, under which a company is only subject to FOI if it is wholly owned by a single public authority but not two or more, is illogical. The correction of this anomaly will, we estimate, bring over 100 new bodies within the scope of the Act.
Transparency isn’t just about the information that we deal with on a day to day basis. We are also committed to making older information available sooner by reducing the point at which public records are made available at The National Archives and other places of deposit from 30 to 20 years, accompanied by a reduction in the maximum lifespan of a number of exemptions within the FOI Act from 30 to 20 years.
This is a large piece of work; there are some 2 million paper records in central government alone between 20 and 30 years old that will need to be considered. We therefore intend to introduce the changes gradually over a ten year period, starting in 2013.
More generally, however, now that the Act has been in operation for nearly seven years it is right that it is examined to see how well it is operating. I said early in my speech that it is not perfect. That is why we announced in January this year that the Act would undergo post-legislative scrutiny.
We plan to submit a Memorandum to Parliament later this year. It will be up to Parliament to decide how to take that forward, and which issues it wishes to examine in more detail.
The evidence drawn from post-legislative scrutiny, and also the open data consultation I mentioned a few moments ago, will inform future policy developments in this area.
I know that some proponents of the Freedom of Information Act may be uneasy about the prospect of post-legislative scrutiny, fearing that it may lead to a dilution of existing rights. I do not share these concerns. I believe the Act to be robust enough to survive and to go further stronger, and prove to be a more effective tool as a result.
A strong and independent Information Commissioner is vital to the promotion and enforcement of information rights, and therefore to the success of our plans. We are enhancing the Commissioner’s corporate and administrative independence through the Protection of Freedoms Bill, and a new Framework Agreement (published on 15 September) setting out the day-to-day relationship between the Commissioner and the Ministry of Justice.
The delivery of increased transparency is not straightforward. There are a number of key issues and challenges that we must address to ensure delivery.
First, I want to say something about the cost of Freedom of Information and the wider transparency agenda. It is important that our actions are proportionate to the public interest. We need to get the balance right. There is no point, for instance, in pushing out a wealth of information if the cost of doing so far outweighs the potential benefits to be gained.
The cost of Freedom of Information is something that the government is acutely aware of, especially in the current financial climate. I know that this is an issue of concern across the public sector. This is something we will be looking at during post-legislative scrutiny and officials at the Ministry of Justice are working with a range of public authorities across the public sector to assess the cost of compliance with the Freedom of Information Act to inform our submissions to Parliament, alongside an assessment of the benefits brought by the legislation.
In the same context, the government is committed to reducing regulatory burdens. It’s an obvious point that this will not always sit comfortably with our commitments on transparency, and that difficult decisions have to be made to ensure that we get the balance between these key priorities right. It is for this reason, for instance, that to date the government has not taken steps to extend the Freedom of Information Act to private companies providing public services under contract.
However, we also recognise that we must take account of changes in the way public services are delivered as we move forwards. There is a strong argument for increased transparency by all bodies in receipt of public funds, including those outside the public sector. The Open Data Consultation explores how open data principles might apply to a wide range of organisations.
We also need to ensure, at the same time as we make more and more information available, that sensitive information is adequately protected. In particular, we must ensure that people’s privacy is preserved and that their personal data is protected in accordance with the Data Protection Act. To help guide the government’s approach in what is a complex area we commissioned an independent report on the impact of transparency of privacy, and this was published on 13 September. We will work closely with the Information Commissioner and others to ensure that this important issue is fully embedded in our future plans.
To conclude: the extension of the Freedom of Information Act and the wider Transparency Agenda take us further down the road of delivering the openness and accountability that the people of this country deserve. People should be able to hold the public sector to account over how their money is spent and the decisions made on their behalf.
Transparency is the foundation of accountability. If we want people to play a bigger role in our society and be able to hold government, at whatever level, to account we need to give them the tools and information to do so.
I am determined that we will.